Appeals court rejects challenge to rule on manual vote recounts

By David Royse
The Associated Press
Posted October 29 2004

TALLAHASSEE · The state acted properly when it adopted an emergency rule for manual recounts in 15 counties that use touch-screen voting machines, a state appeals court ruled 2-1 Thursday as it rejected a Democratic challenge.

The 1st District Court of Appeal is the second court this week to side with the state on the rule imposed Oct. 15 to replace one that had been thrown out by a state court in August.

The split three-judge panel decided the state legitimately considered the implications of another close presidential race when it adopted the new version of a rule covering more than half of the state's voters.

"The department was clearly concerned with the fact that, if no rule were in place, the same specter of confusion and inconsistency in divining a voter's intent that had attended the 2000 presidential election in Florida ... might yet recur in 2004," the court wrote. Judges Richard Ervin III and Joseph Lewis were in the majority on the panel.

But the appeals court also asked the state Supreme Court to weigh in on the issue.

At issue was whether there was actually an "emergency" as defined by state law requiring the new rule after the original was thrown out.

Democrats argued the rule was hastily adopted with no input from interested parties, and that the new "emergency" rule was essentially the same as the invalidated rule.

The state argued that without the rule there wouldn't be any uniform directions on what the 15 Florida counties, including Broward and Palm Beach, that use touch-screen voting machines should do in the event a manual recount is required.

Democratic Party lawyer Mark Herron said there were several groups that wanted to contribute to the drafting of the rule.

"They didn't really seek input in any formal way," he said of state elections officials. And then, Herron said, the department ignored the groups that wanted to make suggestions.

"The substance of the rule is really no different than the one that was thrown out," Herron said. Democrats say that essentially creates two classes of voters those in 15 touch-screen counties who can't have manual recounts and those in the other 52 counties who can.