Judge: Paper votes 'logical,' but not issue
A decision is promised 'as soon as reasonably practicable.'

By George Bennett

Palm Beach Post Staff Writer

Thursday, October 21, 2004

FORT LAUDERDALE — A federal judge called a voter-verified ballot paper trail a "logical" idea Wednesday, but said that isn't the issue in a lawsuit by U.S. Rep. Robert Wexler that claims paperless electronic voting is unconstitutional.

A three-day trial on Wexler's lawsuit ended with U.S. District Judge James Cohn posing some skeptical questions to attorneys for Wexler and to lawyers representing Florida elections officials.
 With the Nov. 2 election less than two weeks away and Wexler seeking federal overseers for the 15 Florida counties that use paperless touch-screen voting machines, Cohn said he expects to render a decision "as soon as reasonably practicable."

Wexler contends that paperless voting systems violate the equal-protection rights of voters because their ballots cannot be recounted after a close election the way paper ballots used in 52 other Florida counties can be reexamined. Paper ballots can be scrutinized for stray marks or other clues that would allow a canvassing board to determine how a voter intended to vote, Wexler's attorneys said.

Elections officials say touch screens produce a post-election paper record that confirms how voters voted and satisfies the state's manual recount law. They say Florida law has replaced subjective "voter intent" judgments with a more objective "definite choice" standard.

Both sides invoked the ghosts of Florida's 2000 presidential recount in their closing arguments Wednesday.

Attorneys for Wexler, a Delray Beach Democrat, cited the U.S. Supreme Court's Bush vs. Gore decision to bolster their argument that voters in all 67 Florida counties should be treated equally in a recount.

"If you do not have a recount where you are treating each ballot with equal dignity, then you are violating the equal-protection clause," said Robert Peck, an attorney for the Center for Constitutional Litigation representing Wexler.

Ron Labasky, the attorney for Palm Beach County Elections Supervisor Theresa LePore, said Wexler and his allies want to "regress to where we were before" with canvassing boards trying to divine voter intent from paper ballots.

"They would like to have an opportunity in this manual recount situation to have a piece of paper to play with, which is what the legislature tried to avoid," Labasky said.

LePore, Indian River County Elections Supervisor Kay Clem and Florida Secretary of State Glenda Hood are defendants in Wexler's suit.

Wexler's attorneys and witnesses tried to depict touch-screen voting as unreliable throughout the trial, often citing a 2003 Division of Elections report that showed touch-screen voters were more likely to cast undervotes than voters who use paper optical-scan ballots.

But Cohn said his decision will focus on the narrower issue of whether the state's recently adopted emergency rule for conducting manual recounts for paperless systems creates a uniform standard and complies with Florida law.

"There may be better means of conducting a manual recount than that which is contained in the emergency rule," Cohn told Wexler's lawyers. "But that's not the issue."

Later, Cohn said that "verified voter paper receipts" — printouts examined by voters before they cast their electronic ballots and then saved in case they are needed for a manual recount — are "obviously a logical way of resolving the problem. That does not address the question of liability."

Cohn disputed defense lawyers' contention that Wexler's suit would force a uniform nationwide voting system. He also asked them whether examining the post-election printout from a touch screen is any different from a machine recount. And the judge asked the defense to define the purported difference between "intent" and "choice" when evaluating ballots.

Earlier Wednesday, LePore spent two hours on the witness stand, much of it fending off questions from Wexler attorney Jeffrey Liggio. She was also in court all day Monday, but did not testify.

"I've had two days out of my extremely busy schedule to be here," LePore told Liggio at one point.

"If it were my choice, we wouldn't have waited all these months," said Liggio, who filed the suit in March but saw it delayed by procedural setbacks.

"It certainly wasn't my choice," LePore said.