Res Publica 2005

As Floridians cast their first presidential votes on paperless electronic touch-screen voting machines Monday morning, a federal judge in Fort Lauderdale will begin hearing arguments on whether Florida's electronic voting systems violate the U.S. Constitution.

The U.S. District Court trial on Democratic U.S. Rep. Robert Wexler's lawsuit against Florida elections officials begins on the same day that the state opens early voting for the Nov. 2 election.

The timing of the trial, which will feature testimony criticizing the reliability of touch-screen voting, bothers many elections officials.

"It erodes the confidence of our voters," says Pasco County Elections Supervisor Kurt Browning, who says electronic balloting is safe and reliable, and that Wexler is scaring voters needlessly.

"We don't have time for this right now," says Palm Beach County Elections Supervisor Theresa LePore, one of the defendants in Wexler's suit. LePore, who lost her Aug. 31 bid for reelection to a Wexler-backed challenger, will be in court Monday after being subpoenaed by Wexler, of Delray Beach.

Florida Secretary of State Glenda Hood and Indian River County Elections Supervisor Kay Clem are also defendants.

Wexler attorney Jeffrey Liggio makes no apologies for the suit coming to trial on the eve of the election. The complaint was filed in March, he notes, but "the defendants have successfully run the clock" by raising procedural challenges.

In the spring, the defendants persuaded Judge James Cohn that the suit did not belong in federal court because it was similar to a lawsuit Wexler filed in state court. But an appeals court last month said Cohn should consider the merits of Wexler's suit.

Wexler's suit claims that having different voting systems in Florida — some electronic, some paper — violates the Constitution's equal protection clause.

Palm Beach County and 14 other Florida counties use touch screens. In 52 other Florida counties, voters use paper ballots read by optical scanners. In a close election, the paper ballots can be manually recounted. In the 15 counties that use touch screens, voters cast intangible ballots that cannot be hand-counted.

Hood, the state's top elections official, on Friday ordered that, in the case of a close election, supervisors in touch screen counties make paper printouts of ballot images to be counted, but the new rule doesn't satisfy Wexler or electronic voting critics. They have said proposals like Hood's amount to a "reprint" rather than a recount.

If Cohn agrees with Wexler in the trial that begins Monday, it's unclear whether he could prescribe any legal remedy in time for the presidential election.

Wexler has said he'd like touch screens to be outfitted with printers that would produce ballots voters could verify before casting their electronic votes. The printouts would create a backup "paper trail" that would settle questions in a close election, Wexler says.

Because a paper trail can't be put in place during the next two weeks, Liggio said Friday he will ask Cohn to order a variety of interim measures to increase scrutiny of electronic voting systems. Liggio also repeated his suggestion that poll watchers compare the number of voters who sign in at precincts with the number of votes cast on electronic machines.

"If you do that during the day, you'll know if you have a machine that's not counting properly," Liggio said.

LePore said that idea would create chaos at the polls.

"I can foresee a major problem, especially in busy precincts, because of these outsiders coming in and trying to count signatures," said LePore, who envisioned angry voters waiting in line while poll watchers hold up voting to conduct their counts.

Palm Beach Post.com