Lawsuit over paperless vote begins

By George Bennett

Palm Beach Post Staff Writer

Tuesday, October 19, 2004

FORT LAUDERDALE — A computer scientist likened paperless electronic voting to trusting a "man behind the curtain" to record votes as a federal trial began Monday.

The lawsuit by U.S. Rep. Robert Wexler contends that paperless voting violates the U.S. Constitution. Wexler's lawyers and one of his witnesses, Stanford computer science Professor David Dill, spent most of the day questioning the reliability of touch-screen voting systems, which are used by 15 Florida counties with more than half the state's population.
 Wexler's suit claims that voters who use the paperless systems aren't given the same constitutional protections as the voters in 52 Florida counties that use paper ballots because only the paper ballots can be recounted by hand in a close election.

But if U.S. District Judge James Cohn follows Wexler's logic, a lawyer for Florida Secretary of State Glenda Hood argued, the federal government would have to force every county in every state to use the same type of voting system.

"This court is being asked to go where no court has gone before," said George Waas, an assistant attorney general representing Hood.

Hood, Palm Beach County Elections Supervisor Theresa LePore and Indian River County Elections Supervisor Kay Clem are defendants in the suit.

With the trial opening 15 days before the Nov. 2 general election, Waas accused Wexler, a Delray Beach Democrat, of trying to create a new voting standard that would "toss the election into conflagration that would make 2000 pale in comparison."

Wexler blamed the tight time frame on state officials for not scrapping their paperless system months ago when he raised concerns.

"I'm curious as to what's going to happen on election night when we possibly do have another close race in the presidential race and one of the candidates asks for a recount," he said in court.

Florida's recount law is the basis for Wexler's suit.

In races decided by 0.25 percent of the vote or less, the law says any overvotes, which are ballots cast for more than one candidate, or undervotes, which are ballots in which no vote is registered, are to be examined by a canvassing board to determine "if there is a clear indication on the ballot that the voter has made a definite choice."

Florida elections officials have argued manual recounts aren't needed with touch screens. The machines don't allow overvotes. On undervotes, a voter can't make stray marks or other indications of a choice, so the state maintains there is nothing for a canvassing board to examine.

An administrative law judge disagreed with the state's interpretation in August. Last week, Hood responded by approving an emergency recount rule that calls for undervoted ballots to be printed out after the election and counted by hand.

Cohn said at the beginning of the trial that "the issue I think should now be framed as follows: Does the emergency rule create a uniform, nondifferential standard for creating manual recounts in the 15 counties?"

Wexler says it doesn't. The after-the-fact printouts are not "contemporaneous" with the vote being cast and therefore don't help determine a voter's intent, attorney Robert Peck said.

If printers were attached to touch screens so a voter could see a tangible copy of his vote before casting it, the resulting "paper trail" would serve as evidence of voter intent, Peck said. Wexler in the past has favored the printer option, but on Monday he said he favors paper ballots read by optical scanners.

Neither solution can be put in place in time for the Nov. 2 election.