Court revives voting machine lawsuit

BY GARY FINEOUT AND LESLEY CLARK

gfineout@herald.com

 

TALLAHASSEE - Florida's election system, ridiculed and maligned during the 2000 presidential election and then rebuilt with new technology, was thrown into chaos again Monday with five weeks to go before Election Day.

A federal appeals court in Atlanta reversed a lower-court judge and ordered him to hear a lawsuit that demands voters be given paper receipts when they use touch-screen voting machines so there is a paper trail in a close election.

The court's decision is vindication for U.S. Rep. Robert Wexler, the Palm Beach County Democrat who filed the lawsuit, and a potential nightmare for election officials in the 15 counties that use the ATM-style equipment, including Miami-Dade, Broward and Palm Beach.

It also throws an unwelcome light once again on Florida, which was assailed Monday by former President Jimmy Carter, who said a repetition of problems from 2000 ``seems likely in Florida.''

Regardless of whether Wexler wins his lawsuit in court, state officials said Monday that they will now draw up an emergency rule requiring touch-screen counties to do manual recounts in close elections a startling turnaround, because the state fought for months to bar such recounts.

`HUGE VICTORY'

''The court decision was a huge victory for everyone who wants a paper trail, and who believes Florida law ought to be followed and a manual recount of votes should occur in close elections,'' Wexler said. ``Governor Bush is a big loser in this decision because he has stubbornly refused to prepare Florida for a fair and equitable election.'

Embarrassed by the 36-day standoff that settled the 2000 presidential election, Gov. Jeb Bush and state leaders overhauled the election system. Legislators outlawed punch-card ballots and old voting equipment, and mandated that counties replace them with modern technology.

Fifty-two counties ed optical-scan machines which require filling out a paper ballot while 15 use the touch-screen machines.

Critics of touch-screen technology are alarmed that there may be no way to know if a machine malfunctioned during a close election.

State law requires recounts when elections are decided by a razor-thin margin. If the difference in vote totals between candidates after the first automatic recount is less than one-quarter of 1 percent, election officials are required to do a manual, or hand, recount of all overvotes and undervotes. Overvotes are votes for more than one candidate in a race; undervotes are no votes at all in a particular race.

But the state elections division has argued that manual recounts aren't needed for touch-screen machines because they are incapable of recording overvotes. State officials even issued a rule prohibiting counties from doing manual recounts a rule the American Civil Liberties Union and other groups successfully challenged in court last month.

Wexler, who has criticized the touch-screen machines for months, led an effort in both federal and state courts this year to require paper receipts, which would give voters a copy of their ballot and create a separate paper trail for the elections office.

On Monday, the 11th U.S. Circuit Court of Appeals in Atlanta revived Wexler's lawsuit, which had been tossed out by a federal judge in Fort Lauderdale.

The three-judge panel ordered U.S. District Judge James Cohn to hold a hearing on the merits of the suit.

A spokeswoman for Secretary of State Glenda Hood called the ruling ''procedural'' but acknowledged that the state now plans a new rule in time for the Nov. 2 elections spelling out how to do manual recounts in touch-screen counties. How recounts would be done hasn't been decided, spokeswoman Jenny Nash said.

She said state officials were interested in doing what ``we feel will best serve Florida. We are concerned with finality and not continued litigation.''

But the state's solution does not at this time include paper receipts, because Florida hasn't certified any printers that can legally be used with touch-screen machines.

This latest controversy comes as Florida is under renewed criticism.

In a stinging opinion piece in The Washington Post, former President Carter, whose Atlanta-based Carter Center has monitored 50 elections worldwide, argued that ''some basic international requirements for a fair election'' are missing in Florida.

Among them, he said, are paper ballots and a nonpartisan electoral commission. Carter said that ``Florida voting officials have proved to be highly partisan, brazenly violating a basic need for an unbiased and universally trusted authority.''

HOOD AND HARRIS

Carter likened Hood to her predecessor, Katherine Harris, who co-chaired President Bush's state campaign while overseeing the 2000 recount.

''The same strong bias has become evident,'' Carter said of Hood, blaming her for a flawed list of felons who were to be purged from voter rolls. The list contained the names of 22,000 blacks likely to vote Democratic but just 61 Hispanics, who in Florida tend to vote Republican, Carter said. He called the list a ''fumbling attempt'' to disqualify blacks.

A spokesman for the governor called the column ``shockingly partisan.''

''And it's unfortunate that someone like President Carter is being used by the Democratic Party for this low-level political rhetoric,'' spokesman Jacob DiPietre said.