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Seeking to prevent a replay of the 2000 presidential election debacle, U.S. Rep. Robert Wexler is seeking a court order today to require election officials to create a paper trail for electronic voting machines. In his politically charged Palm Beach Circuit Court suit filed last month, Wexler alleges that the paperless, touch-screen voting machines used in Palm Beach County and 14 other Florida counties are illegal because they don’t produce an individual, verifiable record of each person’s vote. He contends that such a paper trail is needed to allow manual recounts in close elections. Miami-Dade and Broward counties also have machines that don’t produce paper ballots. So if the judge agrees with Wexler, the suit will impact those counties and any others in Florida with touch-screen systems. The Democratic congressman from Boca Raton claims that the absence of paper ballots leaves county elections supervisors unable to comply with state law that requires hand recounts of ballots in elections with narrow margins of victory. That, he said, poses a grave risk in the upcoming primary and general elections this year. Circuit Judge Karen Miller is slated to rule today on the defendants’ motions to summarily dismiss or transfer the case to Leon Circuit Court in Tallahassee. But the defendants in the suit, Palm Beach County Supervisor of Elections Theresa LePore and Florida Secretary of State Glenda Hood, an appointee of Gov. Jeb Bush, argue that Wexler lacks standing to bring the action. They also contend that his complaint fails to state a cause of action because it cites a problem that may occur in the future, and that the court has no authority to interfere with policy set by the Legislature. On Tuesday, the Palm Beach County Commission agreed to install printers on the county’s electronic voting machines to allow individual voting records for recount purposes, but only if the state approves their use. After that decision, Wexler removed the commission as a named defendant in his suit. Last week, the county commissions of Palm Beach, Broward and Miami-Dade agreed at a joint meeting to urge the Legislature to require paper records of votes, the Miami Herald reported Wednesday. Still, LePore’s attorneys argue that the right to vote is “not absolute” and that state legislatures are “allowed broad leeway … to ensure that elections are carried out in a fair and orderly manner.” “There is no constitutional right to a recount,” Hood’s attorney, Florida Assistant Attorney General George Waas, said in an interview. Wexler argues that with Florida’s March 9 presidential primary just weeks away, he and other Palm Beach County voters face “immediate and irreparable harm.” On top of that, the lack of a paper trail for individual votes already has created problems in the supertight Jan. 6 special election in state House District 91, which includes parts of both Palm Beach and Broward counties. Unofficial results showed political consultant Ellyn Bogdanoff leading Lauderdale-by-the-Sea Mayor Oliver Parker by 12 votes, less than 0.5 percent of the votes cast. That is the threshold that automatically triggers a recount under state law. When the automated recount showed that Bogdanoff led by less than one-fourth of 1 percent, state law mandated a manual recount. But because the machines left no paper trail, county elections officials didn’t know what to do. “Both counties’ supervisors [of elections] asked for guidance from Tallahassee,” Wexler said in an interview. “They got no answer because it was impossible.” Bogdanoff was finally seated after Parker conceded the race. Lance deHaven-Smith, a professor of public administration at Florida State University, said there are major political implications in the fight over whether to add a paper trail for recount purposes. “The GOP doesn’t gain anything from a more precise voting and recount process,” he said. “No voting machine is errorless and traditionally Democratic groups like the aged and the poor have the highest error rates. Mistakes that can’t be corrected hurt Democrats.” But Ed Kast, an assistant to Secretary Hood who heads the state Division of Elections, rejected criticisms that the current electronic voting systems don’t provide an adequate basis for manual recounts. “The touch screen records the intent of the voter very well,” he said. “The critics are wrong.” Wexler’s lawsuit is a reflection of the continuing anger and concern over the disputed Florida 2000 presidential election, in which a legal battle over recount procedures was resolved by the U.S. Supreme Court. The high court’s 5-4 ruling in Bush v. Gore stopped a manual recount of Florida ballots ordered by the Florida Supreme Court and ensured George W. Bush’s victory. The Florida Legislature responded by passing the Election Reform Act of 2001, which extensively rewrote state election code, eliminated the use of punch-card machines and brought more uniformity to the counties’ procedures. The federal government followed in 2002 with the Help America Vote Act, which authorized the creation of standard procedures for federal elections and provided funds to the states for the purchase of electronic voting machines. Fifty-two Florida counties, but not the three South Florida counties, purchased optical scan voting systems. The optical technology allows voters to mark their choices on paper ballots, after which the ballots are read by machines that record the votes and compute the totals. Then the paper ballots are stored and are available for recounting. The three South Florida counties and 12 others purchased touch-screen machines, also known as direct recording electronic machines. Those systems are paperless unless a printer is attached. It would cost about $2.2 million to add printers to the voting machines purchased by Palm Beach County. But printers for the machines used in Broward and Miami-Dade are not yet available and the cost is unknown. Rebecca Mercuri, a computer scientist affiliated with Harvard’s Kennedy School of Government and a critic of the current electronic voting systems, said counties across the country were misled on the issue of recounts when they were sold the new systems. Mercuri said that the counties didn’t understand that there was a difference between having a computerized record and having individualized records. The former could only be used to confirm vote totals; the latter could be used to check the accuracy of individual recorded votes. INTENT VS. CHOICE Before passage of the 2001 Florida election reform law, state recount law authorized elections officials to manually recount ballots so that those ballots miscounted by machines could be examined individually to determine “the intent of the voter.” The new law amended the state’s recount procedure to bring it into line with the electronic voting systems. In the absence of paper ballot records, the new law replaced the “intent of the voter” standard with a “definite choice” standard. Under that new standard, in recounts votes “shall be counted if there is a clear indication on the ballot that the voter has made a definite choice.” The law leaves it to the Florida secretary of state to devise the rules prescribing what constitutes a “definite choice.” But, just nine months before the 2004 presidential and congressional elections, those state rules are still in development, Elections Division Director Kast wrote in a Jan. 12 letter to Broward Elections Supervisor Brenda Snipes. Kast said that touch-screen machines make it “impossible for a voter to make any stray marks on the ballot that might provide guidance” to officials. He authorized review of the machines’ electronic images of ballots. But since those images only repeat what the machine originally tallied as a total rather than the marks of the individual voter’s choice, Kast called such review “an exercise in futility.” Kast also said that such a review of electronic images “would not be feasible in a larger statewide race” because of statutory deadlines. In an interview, Kast said public notice of proposed changes to the recount rules — including the elimination of review of ballot images — will be posted next Friday, with 21 days for public comment. Despite his letter, Kast insisted that complaints about relying on electronic ballot images rather than paper ballots for recount purposes are based on “semantic distinctions.” In his lawsuit, Rep. Wexler asks the court to order Hood and LePore to “immediately take whatever steps are necessary” to ensure the ability to “rapidly, accurately and properly” conduct manual recounts of touch-screen voting results, and to require regular reports on progress toward that goal. Wexler is represented by Jeffrey Liggio of West Palm Beach. LePore is represented by partner Michael Burman and associate Bernard Lebedeker at Burman, Critton, Luttier & Coleman in North Palm Beach. Hood is represented by Florida Assistant Attorney General Waas. In July, the congressman expressed his concern about the lack of a paper trail in a letter to Secretary Hood, urging the addition of ballot printers to produce “individual voter-verifiable” ballots. Wexler suggested that the state use some of its $11.7 million in federal funds under the new national law to buy printers for the touch-screen machines. “Florida cannot afford the notoriety of another election fiasco,” he warned. But LePore’s attorneys argue that the “Rickman Rule,” drawn from a 1917 Florida Supreme Court opinion, blocks Wexler’s suit against public officials for official acts unless he can show an injury “peculiar to the plaintiff.” The defendants also claim that Wexler’s requested remedy would be a breach of the constitutional separation of powers. In his motion to dismiss, Waas called Wexler’s suit “an improper attempt” to have the court “control and regulate the actions of � a wholly separate branch of government.” “There are problems with every election system,” LePore attorney Lebedeker said in an interview. “It’s up to the Legislature to resolve them.” Wexler rejects that argument. “I’m asking the court to interpret and enforce law that’s already on the books,” he said. “Why won’t [Secretary Hood] acknowledge the problem? Why isn’t the governor leading the charge?”

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