Counties ordered to enable recounts
Upholding a manual-recount law may lead to a paper trail for touch-screen machines.

By Dara Kam

Special to The Palm Beach Post

Saturday, August 28, 2004

TALLAHASSEE — An administrative law judge ruled Friday that the 15 counties that use touch-screen voting systems must be able to perform manual recounts in extremely close elections.

Voting-rights advocates hailed the decision, saying it possibly opens the door to allow a paper trail for the touch-screen machines, which more than half the state's voters use.

But a spokeswoman for Secretary of State Glenda Hood said, "This ruling takes Florida back to 2000," referring to the specter of hanging chads and pregnant dimples on the Palm Beach County butterfly ballot during the presidential recount that instigated the legislature's ban on all but optical-scan or touch-screen voting systems.
 The order by Florida Administrative Law Judge Susan Kirkland overturns a rule issued by Hood exempting touch-screen counties from doing manual recounts.

Kirkland said Hood's rule "is contrary to the plain language" of the state law that requires manual recounts for any voting system certified by the state. She said state law always supersedes administrative rules.

Hood "does not have the authority to abolish manual recounts for certain types of voting equipment," Kirkland's order read. "The Florida legislature made no distinction between voting systems using paper ballots and those not using paper ballots when requiring manual recounts.

"If the legislature had intended that no manual recounts be done in counties using voting systems which did not use paper ballots, it could have easily done so; it did not."

Hood's rule exempted the 15 touch-screen counties, including Palm Beach and Martin, from having to do manual recounts.

The 52 counties that use optical scanners, which are considered paper ballots, are required by law to perform manual recounts.

"This ruling is going to go a long way toward restoring the confidence of voters in Florida's voting system," said Howard Simon, executive director of the American Civil Liberties Union, one of seven groups that challenged the rule. "There's no question that this ruling opens the door to the possibility of a voter-verified paper trail in Florida."

Hood created the rule two months after U.S. Rep. Robert Wexler, D-Delray Beach, filed lawsuits challenging paperless voting.

Hood's spokeswoman, Alia Faraj, called the judge's ruling a "setback."

"The touch-screen machines were put in place by the counties to solve the problems that Florida saw in 2000," Faraj said. "A manual recount is unnecessary and logistically impossible because supervisors would have to print out a supermarket-like receipt that could stretch from Miami to the Panhandle."

A state appeals court had refused to rule on Wexler's call for a paper trail for touch-screen machines, pending the administrative challenge. He has until Friday to ask the Florida Supreme Court to rule on that case, according to his attorney, Jeff Liggio.

Oral arguments in Wexler's federal case were heard last week in the U.S. 11th Circuit Court of Appeals.

Florida law requires a manual recount in elections that are decided by 0.25 percent of the votes cast or less.

Canvassing boards in the counties that use optical-scan ballots examine the ballots for undervotes, in which a vote was either not counted or cast, and overvotes, in which more than one candidate was ed.

Boards may discover "undervoted" ballots in which a voter's choice was not fully completed but can be counted after determining the voter's intent.

Hood has maintained that a manual recount is unnecessary for the electronic machines because voters cannot cast overvotes. She also has said that because the machines offer several prompts for voters who choose not to vote in a particular race, the intent of the voter is clear when that portion of the ballot is left blank.

Faraj said Friday that Hood is considering an appeal. She has 30 days to file. Lawmakers also could convene in a special session to clarify the language of the law regarding manual recounts.

Voting-rights supporters cautioned that challenging the administrative judge's ruling could backfire for Hood.

"That ruling leaves us where we were when we began in January," Liggio said. "What you have in Florida is unequal systems. The secretary of state, who the voters ought to be able to trust to protect everybody's vote, has done nothing but delay and throw procedural roadblocks and do everything she can to prevent a solution."

Lawmakers face a similar conundrum if they choose to clarify their legislative intent by exempting touch-screen machines from the manual-recount requirements.

"Their intent is that they want to treat half the population differently than the other half?" said Alma Gonzalez, special counsel for the Association of Federal, Municipal and State Unions. "I don't think that's the intent of the legislature."