ACLU Applauds Court Decision in Manual Recount Lawsuit in FLORIDA

TALLAHASSEE – In a decision that may pave the way for the use of voter-verified paper trails on touch-screen voting systems, a state administrative judge today issued a final order striking down as invalid an administrative rule that prohibits manual recounts on computerized voting machines.

“The Secretary of State now has the responsibility to work with elections supervisors to identify mechanisms, including voter-verified paper trails, to perform a manual recount as the law requires," said co-counsel Alma Gonzalez of the Voter Protection Coalition Round Table. “Rather than spending tax payer dollars to appeal today’s decision, the Secretary of State should work with us to assure compliance with Florida’s manual recount requirement.”

Florida Administrative Law Judge Susan Kirkland issued the 22-page ruling late this afternoon in a lawsuit filed July 7 by a coalition of groups, including the ACLU of Florida, Common Cause Florida, Florida Voters League and the Florida State Chapter of the Southern Christian Leadership Conference.

Kirkland said the rule was an "invalid exercise of legislative authority delegated to the Secretary of State."

"A recount has to be more than just a reprint of the votes," said Howard Simon, executive director of the American Civil Liberties Union of Florida (ACLU) of Florida. “Performing manual recounts in close or disputed elections is necessary not only to ascertain the intent of the voter, but to verify the integrity of the data on each machine.

“Mere assertions by state officials that everything is OK do not restore voter confidence," added Simon. "Today’s decision upholding the law requiring manual recounts will increase voter confidence in our electoral process."

“Today's decision now frees county supervisors of elections in those counties using touch-screen voting systems to make arrangements for a manual recount as required by Florida," said Tallahassee attorney Jerry G. Traynham, lead counsel in the lawsuit.

The administrative rule – issued in April – prohibits manual recounts on the computerized voting machines called Direct Recording Electronic (DRE) voting equipment in cases of a close election. The groups argued it violates a state law mandating manual recounts of "over votes" and "under votes" when the margin in an election is less than one-quarter of one percent of the votes cast.

State elections officials have argued that manual recounts are not required for touch-screen voting systems because the DRE systems do not permit “over votes,” and they also argue that an analysis of “under votes” will not determine voter intent. Judge Kirkland answered the state's by noting that "This assertion may be true if the software or hardware on the voting machine does not malfunction. It does not deal with a malfunction situation in which what actually appeared on the screen when the vote was cast was not what was actually recorded by the machine. It is not known whether such a malfunction has accurred in Florida because a copy of the screen image is not maintained."

The DRE voting machines have had their share of technical problems in the past. In one election held in Homestead, Florida in October of 2003, the audit logs failed to register the votes cast on five machines. The audit trail problems in Miami-Dade County were alarming enough to cause one county official to state in a memo that the inaccuracy "would be cause for investigation and research - a lot of questions would be raised."

During a special election for District 91 of the Florida House of Representatives, a recount was not conducted even though the margin of victory was 12 votes and there were more than 130 ballots that were invalidated as "under votes."

The lawsuit is ACLU of Florida et al. v. Florida Department of State.

Alessandra Soler Meetze asoler@aclufl.org
Communications Director
American Civil Liberties Union (ACLU) of Florida
4500 Biscayne Blvd., Suite 340
Miami, FL 33137-3227
Phone: (305) 576-2337, ext. 16
Fax: (305) 576-1106

Visit the ACLU of Florida on-line at www.aclufl.org

Miami: Howard Simon, 786-208-7103 (cell) or Alessandra Soler Meetze,
Communications Director, (786) 208-7203 (cell)

Informant: Jack Topel


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August 2004

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