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Even though Tuesday’s election in Florida went far smoother than the 2000 presidential election, the various problems that arose might well have led to a protracted legal battle if the contest between President Bush and Sen. John Kerry had been closer. With that frightening possibility in mind, Republicans, Democrats and independent watchdog groups agreed Wednesday that major election reform is needed in Florida. But, in a sign of political roadblocks ahead, critics of different stripes sharply disagreed on what the biggest problems were and how they should be solved. Meanwhile, the ACLU Foundation of Florida filed its federal lawsuit in Miami seeking to ensure that absentee voters in Miami-Dade and Broward counties who received ballots at the last minute have their votes counted, regardless of whether election officials received them by the statutory deadline of Nov. 2. On Wednesday, Randall Marshall, legal director of the ACLU Union Foundation of Florida, asked U.S. District Judge Alan S. Gold for a temporary restraining order to require the counties’ election officials to keep ballots received on or just before Election Day. Even though the ballots at issue are too few to make a difference, Marshall told the judge that proceeding with the court action “was totally appropriate given the fundamental rights at stake here.” He argued that if the ballots mailed by voters who received them late were not separated from the rest of the absentee ballots, it could become impossible to locate them in time for the Nov. 13 vote certification deadline should Gold rule favorably. Marshall asked Gold for an order forcing Dade and Broward elections officials to separate all ballots received by the voters before Nov. 2, and received by the elections office before Nov. 12. The judge indicated that he might issue a ruling on the temporary restraining order as soon as Wednesday night. On Tuesday, lawyers for independent watchdog groups and the Kerry/Edwards campaign alleged widespread problems with absentee ballots not being sent to out-of-state voters. They also cited improper Republican challenges of voters, malfunctioning touch-screen voting machines, and illegal demands that people show two forms of identification before voting. In addition, they said poor planning by election officials led to long lines both for early voting and Election Day voting, and that may have discouraged some people from casting votes. On the Republican side, attorneys for the Bush/Cheney campaign complained that Republican poll watchers were blocked from entering some polling places. Long before Election Day, critics complained about the lack of paper backup records for touch-screen voting machines that could be manually recounted, flawed lists of felons to be purged from voting rolls, incomplete applications for voter registration, and controversial rules for when to let people cast provisional ballots. More generally, election watchdogs, including former President Jimmy Carter, castigated Gov. Jeb Bush and Florida Secretary of State Glenda Hood, a Bush appointee, for making a series of election-related decisions that tended to favor Republicans. “Florida voting officials have proved to be highly partisan, brazenly violating a basic need for an unbiased and universally trusted authority to manage all elements of the electoral process,” Carter wrote in The Washington Post in September. Democrats and voting rights groups charged that last-minute rules issued by Secretary of State Hood and county election supervisors forced them to go to court to block or change the rules. That’s a bad way to run elections, said Stephen N. Zack, a Miami attorney who is Florida counsel for the Kerry/Edwards campaign. The courts should not be making rulings that change the rules in the final days and hours before an election, he said. “Both parties should have a clear understanding of what the rules are before the election,” he said. Observers say Florida and other states need greater uniformity rather than a myriad of laws, rules, and procedures in different counties and states — and even in different precincts of the same county. Miami attorney Jeanne Baker, a coordinator with the Election Protection Coalition, a nonpartisan national watchdog group, called for a national oversight commission. Eric Buermann, legal counsel to the Republican Party of Miami-Dade, said he would push for new Florida law to remedy a host of problems witnessed by his legal team. But he was unsure whether a national commission is the answer. “It might be good, unless they’re just going to jawbone and spin their wheels in the mud and then nothing gets done,” he said. Zack said the Legislature and governor need to adopt all the recommendations of Bush’s bipartisan commission in 2001. Zack noted that the Legislature implemented only 23 of 35 recommendations — not including one that the entire state use a paper-based, optical scan voting system. “I can’t imagine why anyone looking at these elections would not want a uniform system,” Zack said. “Historically, each county in the country had its own way of doing things. But we’ve progressed a long way since then and experienced some very close elections. We need a uniform system that is accountable and verifiable.” EARLY VOTING PROBLEMS Armies of poll watching lawyers for the Bush/Cheney and Kerry/Edwards campaigns, as well as for the U.S. Justice Department’s civil rights division and the Election Protection Coalition, reported a variety of problems at the polls, particularly concerning early voting. This was the first year that Florida allowed early voting, which was intended to accommodate a record number of voters and eliminate long lines at the polls. While it proved popular, it presented new problems, such as complaints about too few sites and too long lines, and protests that partisan politicking was allowed inside the polls and within 50 feet of the polling places. Even more serious problems arose with absentee ballots, which expanded in use because Florida’s 2001 election reform law for the first time allowed people to apply for absentee ballots for no special reason. The Kerry/Edwards campaign encouraged Democrats to vote absentee — in part because absentee ballots provide a paper record that can be manually recounted in a close race — but this partly backfired. Thousands of requested absentee ballots, particularly in Broward County but also in other Florida counties, were never mailed out. Thus, a significant but unknown number of Floridians never got a chance to vote. John Gaebe, a Kerry/Edwards election lawyer who lives in Coral Gables, said his two daughters who are away at college requested absentee ballots. As of Monday, only one had received hers. After Gaebe called three times to complain, the Miami-Dade supervisor of elections’ office finally express-mailed one to her, at her expense. She paid to mail it back overnight. There also were scattered reports of glitches with touch-screen voting machines — though not anywhere near as many as critics predicted. In largely black precinct 5028 in Boynton Beach, Election Protection reported that one touch-screen machine went dead, was rebooted, and that 39 votes were lost. The office of Palm Beach County Supervisor of Elections Theresa LePore said the votes were stored on the machine’s electronic memory and may not have been lost. In at least two Palm Beach County precincts, 7124 in Boynton Beach and 7054 in West Palm Beach, voters said they tried to press Kerry for president and instead found their vote going to Bush, according to Election Protection. But LePore’s office said those incidents probably involved human error. Without backup paper ballots, it’s impossible to know whether critics’ darkest warnings about touch-screening voting — that is, the machines might not accurately record people’s votes either due to computer hacking or fraud — were borne out. Election Protection said it received 7,000 calls from voters before and on Election Day with a wide range of complaints, including how election officials didn’t register them or sent out absentee ballots, and how voting lines were long and polls didn’t open on time. Election Protection also reported frustration in trying to contact Broward County Supervisor of Elections Brenda Snipes and Miami-Dade Supervisor of Elections Constance A. Kaplan and their staffs for weeks before the election. PARTISAN ACTIVITIES IN POLLS For the Bush/Cheney lawyers, the biggest concerns focused on early voting. Because the early voting rules did not incorporate all the restrictions in place for Election Day activity, partisan groups were allowed to campaign within 50 feet of polling places as well as inside the polling places, Buermann said. He accused the NAACP, Kerry/Edwards lawyers and the liberal groups Moveon.org and ACORN of “putting Kerry/Edwards stickers on people as they walked in the door, harassing people in lines, intimidating people and teasing people.” Roberto Martinez, a Bush/Cheney poll watcher and former U.S. Attorney in Miami, also complained that the 50-foot rule needs to be instituted for early voting. “The law should be very firm that only elections office workers should be allowed in the polling room,” he said. Additionally, political rallies should not be allowed in government buildings that are also operating as polling places during early voting, Martinez said. Buermann called for a change in the law to prevent partisan workers from assisting disabled or illiterate people with voting. “They would take voters into custody when they arrived and tell them how to vote,” he said. “The polling places were crawling with operatives.” Martinez also said the assistance law should be tightened to bar partisan groups from assisting voters. “The atmosphere was conducive to abuse,” he said. “There were solicitations, solicitations and antagonizing at precincts all over the county.” Buermann also complained about a shortage of laptop computers at polling place entrances that are used to check voters against a database of those who voted absentee or early caused long lines. “I think early voting caught everyone by surprise,” he said. “The laws on early voting need to be beefed up.” The Democrats renewed their months-long demand for voter-verified paper trail system that can be manually recounted. They cited complaints by voters that they pressed John Kerry’s name but saw a check appear next to President Bush’s name on the computer screen. These machines had to be recalibrated, Zack said. Although these incidents were “isolated, … even one is too many,” he said. “There’s a reason that many states decided to retrofit their [touch-screen] machines with printers.” Jeanne Baker insisted that procedural uniformity from precinct to precinct and county to county is key. She pointed to reports she received Tuesday from poll watchers that standards varied from precinct to precinct on what type of identification voters had to show before being allowed to vote. “One man was turned away from one poll because he did not have a photo ID,” she said. Buermann attributed some of these election problems to inadequate funding for elections, even though Congress allocated hundreds of millions of dollars for state election reform efforts under its 2002 election reform law. But Jon Greenbaum, a Washington-based attorney for the Lawyers Committee for Civil Rights, said funding is not the problem. “You can buy new machines, but if people don’t know how to operate them, what’s the point?” he said. “There needs to be massive change in the system in Florida,” Greenbaum said. “There were tremendous breakdowns in the electoral system. Florida was among the worst states for voting. What we’re committed to is bringing electoral reform to Florida.” Review staff writer Jessica M. Walker contributed to this report.

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