4 Years On, Voting Uncertainty Lingers

By JEROME R. STOCKFISCH Tampa Tribune Published: Aug 8, 2004

TALLAHASSEE - Voting is a right that Florence Zoltowsky has never taken for granted.

Sixty years ago, she was forced into hiding as Nazis occupied her Polish hometown. The horrors of the Holocaust embedded in Zoltowsky, now a 74-year-old Boynton Beach retiree, a fervor for freedom and for maintaining a voice in the political process.

``You better believe it's very important to me,'' Zoltowsky says. ``And I don't want anybody to take that right away from me. I want my vote to be counted. Is that too much to ask?''

In the 2000 presidential election, Zoltowsky left her Palm Beach County polling place befuddled by the infamous ``butterfly ballot.'' Realizing later that her punch card reflected a vote for Patrick Buchanan instead of Al Gore, she filed one of the first lawsuits challenging the results.

Four years later, Florida has overhauled its election system. But as Nov. 2 approaches, a partisan brawl has erupted over the success of that effort.

Democrats say Gov. Jeb Bush's administration has failed in its most basic responsibility: to ensure a fair and accurate election with a uniform procedure to recount ballots if necessary. Republicans bemoan the sky-is-falling hysteria and point to procedural and technological advancements they say make a repeat of 2000 impossible.

Just in case, both sides are rounding up lawyers to observe and, if necessary, litigate.

With the fiasco of four years ago fresh in her mind, Zoltowsky's resolve - and distrust of the system - remains strong. Asked if she thinks Florida is prepared for trouble- free balloting this fall, her answer reflects the growing uneasiness across the state.

``I'll tell you when I vote,'' Zoltowsky says. ``Then, I'll know if anything is different.''

In The Aftermath

The 2000 election exposed serious flaws in the way Florida cast and counted its ballots. Images of the era are now in the history books: Magnifying glasses and hanging chad. A Ryder truck with police escort toting disputed ballots to Tallahassee. Then-Secretary of State Katherine Harris, parodied on late-night talk shows and ``Saturday Night Live.'' The U.S. Supreme Court essentially declared George W. Bush the victor in a 5-4 decision halting the recount of votes.

Almost immediately after the Supreme Court ruled, lawmakers set out for a fix.

Today, the state is ``absolutely prepared,'' says Secretary of State Glenda Hood, a Jeb Bush appointee whose department oversees the state Division of Elections. ``We remain very diligent in our commitment to have an open and accurate elections process. We want to make sure the people of Florida have the highest level of confidence in the systems that are in place. There is no task that is more important in my mind.''

Lale Mamoux, an aide to U.S. Rep. Robert Wexler, D-Boca Raton, calls the performance of Bush, who is the president's brother, and Hood ``almost criminally negligent.'' Wexler has sued over Florida's elections process.

``I hope that we don't have problems with the election, but there's so much uncertainty right now,'' Mamoux says.

In December 2000, the governor appointed a task force that traveled the state and came up with a list of 35 recommendations to the Legislature.

Lawmakers approved most of the recommendations in their spring 2001 session, including:

* Elimination of the maligned punch-card ballot system.

* Creation of standardized, uniform ballots.

* Establishment of a centralized voter registration database.

* Creation of the provisional ballot, which allows a voter to cast a ballot if eligibility issues surface at the polls. The ballot, held separately, is counted if it is later determined to be legitimate.

The Florida Election Reform Act of 2001 was a $32 million package - $24 million going to counties for new equipment, $6 million to voter education and $2 million to establish the database.

Now, attention is focused not on what the Legislature did, but what it didn't do.

``We have a controversy in the state of Florida, and it is because we did not follow recommendation No. 12 of the task force,'' says Ion Sancho, elections supervisor for Leon County.

That specific recommendation called for ``a uniform voting system for use throughout the State of Florida.'' The language strongly suggested optical-scan technology, in which voters pencil in a bar on a paper ballot to indicate their preference, similar to the procedure for standardized educational tests. The ballot is fed into a machine, which reads and tallies votes.

Instead, lawmakers bowed to local elections supervisors who, under pressure from industry lobbyists, wanted to try new, touch-screen voting technology. The Legislature left it up to counties to choose between the two systems.

Fifty-two counties now use optical-scan ballots.

Fifteen, including Hillsborough, Pinellas, Pasco and the most populous counties of South Florida, have gone to touch-screen systems. The 15 counties include more than half of the state's voters.

For all the technological advancement that the touch- screen systems represent, they also bring new complications.

The Paper Chase

The 2001 revamp spelled out when and how recounts would be conducted in Florida: If a margin of victory is less than one-quarter of one percent of all votes cast, ``a manual recount of the overvotes and undervotes'' shall be conducted. Such a recount also can take place if the margin is less than one-half of one percent if a candidate requests one.

Polls show President Bush and Sen. John Kerry running neck-and-neck in Florida.

By statute, the purpose of a recount is to determine voter intent. For example, on an optical-scan paper ballot, the voter might circle the candidate's name, rather than properly fill in the bar. Canvassers who inspect the ballot may then count the vote.

Critics recognized that existing touch-screen equipment lacks a paper record of what went on in the voting booth.

Last fall, Wexler, the South Florida congressman, filed a pair of lawsuits claiming it is unconstitutional for the state to use paperless systems that do not allow for such a recount.

A Florida appeals court ruled Friday that Hood acted properly in vetting rules for a recount and said Wexler's lawsuit should be dismissed. The congressman is pursuing a similar suit in federal court.

Hood maintains that such recounts are rendered moot by the touch-screen technology. By design, the systems don't allow voters to ``overvote,'' or register more than one choice in a race. And the touch screen provides numerous prompts in the event of an ``undervote,'' when a voter fails to register a choice. Therefore, the secretary says, if there is no vote in a particular race, that is because the voter intended to skip it.

In February, Hood ruled that there would be no manual recounts of touch-screen results in Florida.

Her ruling has been challenged before an administrative law judge in Tallahassee by a coalition of voter-rights groups. The case is pending.

Hood said she feels her office is ``very solid in our position.''

With the presidential race expected to be extremely close, the recount rules are raising eyebrows among nonpartisan election observers.

``I think some of the immediate response to the election of 2000 may have made things a little worse,'' says Douglas W. Jones, a computer science professor at the University of Iowa and expert on touch-screen voting systems. ``I'm not at all confident about Florida's current recount law.''

The Supreme Court decision that ended the 2000 recount stated that varying standards for manually counting ballots presented problems of due process and equal protection. Some legal scholars suggest that Florida's current situation - paper optical-scan ballots in 52 counties that can be manually recounted, and touch-screen systems in 15 counties that can't - puts the state in the same legal morass.

``If that's not a violation of the equal protection principles from Bush v. Gore, than I don't know what would be,'' says Steve Gey, a professor of constitutional law at Florida State University.

Steve Bickerstaff, who teaches election and constitutional law at the University of Texas, said touch-screen systems will have to be adapted to provide a paper trail. ``I think the rush in some states to a touch-screen voting system was a mistake,'' Bickerstaff says. ``It is in the best interest of the integrity of the election system that the record be present.''

The recount procedure isn't the only controversy swirling around touch-screen voting. In 2002, mechanical problems, largely due to poorly trained poll workers using the new technology, hounded heavily Democratic South Florida polling sites. A system crash in Miami-Dade County later erased data from that election; the record was eventually found. An analysis by the South Florida Sun-Sentinel concluded that the rate of undervotes in March's primary was eight times higher on touch-screen than optical- scan ballots.

Meanwhile, Mike Wertheimer, director of the research group at RABA Technologies in Columbia, Md., says a team of his security experts easily hacked into a touch-screen system in a test conducted in January for the Maryland Legislature, which was considering new election systems.

``I'm not being doomsday,'' Wertheimer says. ``There were many, many tactics that in just a few minutes, undetected, could have changed a whole election.''

Here Come The Lawyers

Floridians' confidence in their elections process also was tested when the elections division distributed a list of suspected felons that local supervisors were to use to winnow their registration rolls. Florida is one of seven states that strips felons of their right to vote.

The state fought to keep the list of 48,000 names secret. After a judge made the list public in response to a lawsuit filed by news organizations, including The Tampa Tribune, it was found to be riddled with errors. A Miami Herald analysis uncovered thousands of people erroneously included - disproportionately blacks, who tend to vote Democratic. On the other hand, Hispanics, who lean Republican in Florida, were virtually absent.

After an uproar, the list was scrapped, and Hood has ordered investigations into how it was compiled.

Such missteps are keeping lawyers busy.

Joining the fray will be armies of legal talent. The Kerry team has at least 75 lawyers in Florida, and the president's supporters have formed a ``Coalition of Lawyers for Bush.'' They will be monitoring balloting and, if necessary, filing challenges.

That's not necessarily a bad thing, says Jones, the University of Iowa elections-technology expert. ``The more we can institutionalize a public distrust of election authorities, the more honest the system becomes,'' he says. ``I think we have the potential of this being perhaps the most accurate election in U.S. history.''

Zoltowsky, the Holocaust survivor and original 2000 litigant, says she won't hesitate to become a plaintiff again if she encounters trouble at the polls.

``If the system is wrong, you better believe I would'' file suit, she says.

``I wouldn't be amazed with the results'' - her 2000 case was, of course, ultimately dismissed - ``but I would'' sue.