Judge: touchscreen counties must be able to do manual recounts

DAVID ROYSE

Associated Press  27 August 2004

TALLAHASSEE, Fla. - A state rule barring the 15 Florida counties that use touchscreens from doing manual recounts is at odds with state law, which requires hand recounts in certain close elections, an administrative law judge ruled Friday.

A coalition of government watchdogs and other interest groups sued the state arguing the law requires provisions for hand recounts in every county, no matter what voting technology is used.

Administrative Law Judge Susan B. Kirkland agreed, writing that state law clearly contemplates "that manual recounts will be done on each certified voting system, including the touchscreen voting systems."

With a primary election Tuesday and more than half the state's voters in counties that use touchscreens, it's not clear what each of those counties will do.

Secretary of State Glenda Hood issued the ruling preventing manual recounts in touchscreen counties in April. She could appeal Kirkland's decision, which would automatically keep the rule in place for now. A spokeswoman for Hood said late Friday that she was considering that option.

Elections supervisors in some of the 15 counties with touchscreens had asked the state what they should do about a law requiring manual recounts when elections are particularly close, because the machines the counties use aren't programmed to create a paper record of each vote.

The Division of Elections issued the rule in April saying touchscreen counties couldn't conduct hand recounts, because such recounts are used to determine the intent of voters whose votes weren't counted. And that shouldn't be able to happen with touchscreens, state officials argued.

Touchscreens don't let people vote for more than one candidate in a race, known as an overvote, or to unintentionally fail to vote in a particular race, called an undervote. If they fail to vote in a race, the machine should alert them and prompt them to choose again if it was an oversight.

So with no undervotes or overvotes to recount, there's no need for one, Hood's office argued.

Department of State spokeswoman Jenny Nash blasted Kirkland's ruling.

"The touchscreen machines were put in place to avoid the problems that were encountered in the 2000 election," Nash said. "This ruling is a step backward to that time."

But Kirkland said if the Legislature had meant to exclude touchscreens from the requirement, it would have.

"The rule is contrary to the plain language of (the statute), which requires manual recounts of overvotes and undervotes when the margin of victory is one-quarter of a percent or less or when there is a proper and timely request for a manual recount," Kirkland found.

Kurt Browning, the elections supervisor in Pasco County, which has touchscreens, said he didn't know what to do because his county doesn't have any plan for recounting by hand.

"We're just kind of circling the airport until we figure out what it does mean," Browning said.

He agrees with Hood that there's no practical way to do a manual recount on touchscreen votes.

"There's nothing to recount," Browning said. "It doesn't provide overvotes. When you look at the undervote, an undervote is a non-vote so how do you count something that doesn't exist?"

But Vicki Cannon, the supervisor of elections in rural Nassau County, north of Jacksonville, said she could do a hand recount of touchscreen votes if the election were close enough to require it.

"Certainly we could if the state directed us to," Cannon said. "I would assume that we would print our ballot records, and count the candidates' names. Time consuming, maybe. Difficult? I don't think so."

But Nassau County has just under 40,000 voters, and it would be much easier to visually review screen images of every vote than it would be in other bigger counties with touchscreens, like Miami-Dade, Broward or Hillsborough, and hundreds of thousands of voters.

Officials in Broward, which has the most voters in the state, agreed it would be time consuming.

"It's not something that would just happen in a day ... at least a week," said Gisela Salas, deputy elections supervisor in Broward. She said the time needed might conflict with other laws on post-election requirements, such as certification deadlines.

Lawyers who sued the state over the rule say the law is the law, and local officials will have to figure out a way.

"The burden is on the secretary of state and the supervisors of elections to identify effective mechanisms, which we know are available," said Alma Gonzalez, the lawyer for the American Federation of State, County and Municipal Employees. The union provided the lawyer for the lawsuit but was not officially a party to it.

"Our number one goal is to ensure there is voter confidence ... and that people feel like their vote is counted and counted accurately," Gonzalez said.

The judge also noted that evidence presented at the hearing established that there are touchscreen systems in existence that can provide a paper trail by printing a picture of the screen as it appears when a vote is cast.

The groups that sued included the American Civil Liberties Union, Common Cause of Florida and the Southern Christian Leadership Conference. People for the American Way also supported the lawsuit.

ACLU Florida Executive Director Howard Simon said if touchscreen counties are forced in close elections to review every ballot visually it would ease concerns that machines may not count every vote.

"Performing manual recounts in close or disputed elections is necessary not only to ascertain the intent of the voter, but to verify the integrity of the data on each machine," Simon said. "Today's decision upholding the law requiring manual recounts will increase voter confidence in our electoral process."

Nash said Hood already has confidence in the touchscreens, saying they have "delivered hundreds of successful elections since Florida began using them in 2002."