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A coalition of civil rights groups tried to convince an administrative law judge Tuesday to overturn a new rule issued by Florida Secretary of State Glenda Hood prohibiting manual recounts in the 15 counties using touch-screening voting machines. Those seeking to overturn Hood’s manual recount rule include the American Civil Liberties Union of Florida, the Southwest Voter Registration Education Project, Common Cause Florida, Florida Southern Christian Leadership Conference Chapter and Florida Voters. The ability to perform a recount could be crucial in the presidential election in November. The outcome in Florida again is expected to be pivotal in what’s shaping up as an extremely close contest. More than 50 percent of Florida voters live in the counties using touch-screen machines, which include Miami-Dade, Broward and Palm Beach. On April 13, Hood, an appointee of Gov. Jeb Bush, issued state administrative Rule 1S-2.031 (7) prohibiting manual recounts on touch-screen systems. The rule states that “no manual recount of undervotes and overvotes cast on a touch-screen system shall be conducted.” It says no recount is needed because the machines make overvotes and undervotes impossible, and because the machines permit no doubt about voter intent. An overvote is when a machine records a voter as having made more than one choice in a single race, thus invalidating the person’s vote. An undervote is when a machine records a voter as having cast no choice in a particular race. The plaintiffs filed their lawsuit with the state Division of Administrative Hearings in Tallahassee on July 7. They allege that the rule is an “invalid exercise of delegated legislative activity” because the Division of Elections, within the secretary of state’s office, which formally issued the rule, lacks the authority to implement it. In addition, the plaintiffs argue, the rule contradicts an existing statute that requires a manual recount in elections decided by less than 0.5 percent of the vote. The plaintiffs claim that electronic voting machines are subject to mechanical and programming errors and fraud and that manual recounts are needed to detect such problems in close elections. The plaintiffs are being represented by Jerry G. Traynham and Ben R. Patterson of Patterson & Traynham in Tallahassee, Fla., and by Tallahassee solo practitioner Alma Gonzalez. Hood’s office has said the administrative rule barring recounts is consistent with the Florida Legislature’s 2001 election reform legislation. Arguing on behalf of the state Tuesday, George Waas, special counsel to the Florida attorney general, asked Administrative Law Judge Susan B. Kirkland to dismiss the suit. He argued that, among other things, the plaintiffs lack the legal standing to challenge the administrative rule. Waas argued that under a November 2003 Florida Supreme Court ruling, NAACP Inc. etc. v. Florida Board of Regents, the plaintiffs had to prove that they would be “injured” by the rule change. But Patterson argued that the plaintiffs have standing because of the potential impact on all Florida voters that the lack of manual recounts in the 15 touch-screen counties could have on the primary election on Aug. 31 and the general election on Nov. 2. “When you are talking about 50 percent of the voters being located in those 15 counties, their cumulative vote is going to affect the results one way or another,” he argued. Judge Kirkland said she would take the state’s motion to dismiss “under advisement” and would rule on the case as expeditiously as possible. She warned, however, that her ruling might not come for more than 40 days, meaning it could come after the primary election. When Kirkland rules, either party can appeal her decision to the 1st District Court of Appeal in Tallahassee. Waas defended the rationale for Hood’s prohibition on manual recounts. He pointed out that touch-screen machines do not allow overvotes. In addition, he said, it’s not feasible to examine undervotes in a manual recount, because, unlike with paper ballots, there is no way to determine whether the undervote resulted from the voter choosing not to vote, voter error or a computer glitch. Ironically, that argument echoes some of the fundamental criticisms of touch-screen voting. Critics, led by U.S. Rep. Robert Wexler, D-Boca Raton, Fla., have pressed for state and local election officials to install printers on touch-screen machines to produce backup paper records of votes. That would have allowed manual recounts. But Secretary of State Hood, Gov. Bush and Republican legislative leaders have steadfastly resisted these demands for paper records of touch-screen votes. Hood fended off this demand by saying the audit reports produced by touch-screen systems — which are supposed to verify the number of votes cast and compare it to the votes recorded — sufficed for recount purposes. Recently, however, Hood’s office has reversed itself and adopted the position that the touch-screen audit reports will not be used for recount purposes. To bolster their argument that manual recounts are essential in close elections involving touch-screen machines, the plaintiffs brought in as an expert John L. Seibel, president of Bethesda, Md.-based TrueBallot, which designs and builds election systems. Seibel warned that the capacity for checking the accuracy of the machines is needed because voters can’t be sure that the touch-screen machine accurately recorded their vote. “What you see on the [touch-screen] interface is simply what you see on the interface,” he told Judge Kirkland. “What the computer is doing with the data, you simply have no idea.”

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