Suit challenges recount ban

Voter advocacy groups sued to overturn a state rule barring counties with touch-screen voting machines from doing manual recounts.

BY MARY ELLEN KLAS

TALLAHASSEE - A 3-month-old state rule prohibiting counties with touch-screen voting machines from doing manual recounts should be thrown out before the Aug. 31 primary, voter advocacy groups said in a lawsuit filed Wednesday against state election officials.

The American Civil Liberties Union of Florida warned that the rule adopted April 9 by the state Division of Elections could inadvertently keep election officials from discovering defects in malfunctioning machines, or errors due to tampering, because it bars county officials from using the backup audit systems in the machines to verify the votes cast in a close election.

''You cannot ride on the premise that all machines are infallible and there will never be a mistake and never be a programming error,'' said Alma Gonzalez, the ACLU attorney who filed the suit.

The groups claim that election officials exceeded their authority when they adopted the rule allowing the 52 counties with optical scanning machines to conduct a recount of the overvotes and undervotes in a race, but prohibiting the 15 counties with touch-screen machines from doing the same.

The lawsuit alleges that the rule sets up a system that allows for unequal treatment of voters.

A spokeswoman for the Division of Elections, Nicole DeLara, would not comment on the lawsuit because the agency had not received it yet.

Election officials defended the rule in the spring, arguing that there was no need for a recount with the electronic, paperless machines. They said that because the touch-screen machines prevent people from voting more than once in the same race an overvote and are incapable of discerning a voter's intent when no vote is cast in a race an undervote a manual recount would produce nothing more than a retabulation of the same votes.

But voter advocates say that the backup audit systems embedded in the machines would help detect any flaws, tampering or malfunctioning when scrutinized in a close election. ''The problem of not allowing a manual recount does in fact cover up, perhaps not intentionally or maliciously, a malfunctioning machine or when there is malicious tampering involved,'' Gonzalez said.

The lawsuit was filed in Florida's Division of Administrative Hearings in Tallahassee on behalf of the ACLU of Florida and other voter advocacy groups: Common Cause Florida, the Southwest Voter Registration Education Project, the Florida Voters League and the Florida State Chapter of the Southern Christian Leadership Conference.

The voter advocates said Wednesday that the state could remedy the problem by allowing votes on a touch-screen machine to be backed up by a ''parallel testing'' system that verifies whether votes are counted.