Wexler asks court to ensure manual recounts in close races

JOHN PAIN    Associated Press   07 December 2005

MIAMI - Florida's touch-screen voting machines violate people's constitutional rights because they don't create a paper record of each ballot, a lawyer for U.S. Rep. Robert Wexler said Wednesday in a federal appeals court. But a state lawyer said the ATM-like devices are accurate and don't need a paper trail.

The Boca Raton Democrat sued the state and two county elections supervisors in March 2004 because the touch-screen machines don't create physical ballots that can be counted by hand when disputes arise in close races.

He argues that because the 15 Florida counties with touch-screens have a different recount procedure than the other 52 with machines that scan paper ballots, the state violates the Constitution's equal protection clause and the U.S. Supreme Court decision that ended the disputed presidential election in 2000. That ruling called for uniform recount standards throughout the state.

But a federal judge disagreed with Wexler in a ruling issued just before last year's presidential election. He said touch-screens "provide sufficient safeguards" of constitutional rights. Wexler challenged the decision to a three-judge panel of the 11th U.S. Circuit Court of Appeals, which heard arguments Wednesday.

Rick Figlio, Florida's deputy solicitor general, told the judges that the touch-screens have a better than 99 percent accuracy rate and are much more reliable than the punch-card ballots outlawed after the 2000 election fiasco. He said optical scan machines are also much more accurate than punch-cards.

He said proposals to add printers to touch-screens so voters could get a receipt would reintroduce the possibility of errors in trying to read a piece of paper that records a ballot, like the infamous hanging and dimpled chads from 2000. Ron Labasky, a lawyer for election chiefs of Palm Beach and Indian River counties, noted that Florida hadn't even certified those printers for use.

Wexler has backed those printers, but said Wednesday he was open to any plan to ensure every county could conduct a manual recount. In 2000, several Florida counties conducted hand recounts, which were ended by the U.S. Supreme Court. George W. Bush then got into the White House when he won the state by 537 votes.

Wexler attorney Bob Peck told the judges that the touch-screens were vulnerable to "programming errors and machine malfunctions" that could erroneously lead a device to record an undervote, which is when no choice is detected on a ballot. He had no statistics on error frequency, but said something as simple as a power surge or moving the machine could skew results.

Figlio said the counties test the machines for accuracy and any problems are "anomalous" and easily detected. But he did acknowledge that "there will always be problems until we come up with a voting system that is 100 percent accurate."

He also noted that machines warn voters if no one is ed on a ballot, so that any undervotes on a touch-screen means the voter purposely left the race blank.

The state's manual recount procedure was initially set in an October 2004 emergency rule after a previous one was thrown out by a state judge. The emergency rule has since been adopted permanently.

U.S. Circuit Judges Joel F. Dubina and Phyllis A. Kravitch and visiting U.S. District Judge Lyle E. Strom gave no indication of how they would rule and didn't say when they would announce their decision.