U.S. District Court Holds that Florida Electronic Voting Procedures Meet Constitutional and Statutory Requirements

Florida Congressman Robert Wexler filed an action in Florida circuit court against Palm Beach County Supervisor of Elections Theresa LePore, Florida Secretary of State Glenda Hood, and the Palm Beach County Board of County Commissioners. Wexler was seeking declaratory and injunctive relief to prevent the use of the Sequoia electronic voting system in Palm Beach County, on grounds that this system does not enable manual recounts in compliance with Florida statutes. The suit was dismissed for lack of standing and for lack of a cause of action. The dismissal was affirmed by the Fourth District Court of Appeal, on the basis that the Secretary of State had already adopted rules for recounts on these machines, and that there was no objection made to the rules themselves. This suit is now pending before the Florida Supreme Court. At the same time as the appeal, Wexler et al. filed an action under 42 U.S.C. § 1983 in U.S. District Court in the Southern District of Florida against LePore, Hood, et al., claiming that the non-uniformity of manual recount procedures across voting machine types is a violation of voter rights under the 5th and 14th Amendments. The suit was initially dismissed, as the District Court found that the federal suit would interfere with the simultaneous appeal in state court. The 11th Circuit vacated the judgment and remanded to the District Court.

The Court ruled for the defendants, holding that the manual recount procedures for both optical scan and touch-screen, paperless voting systems are constitutional. The equal protection constitutional test used by the Court is that uniform rules must exist to determine the intent of each voter statewide during any recount. Bush v. Gore, 531 U.S. 98, 106 (2000). The plaintiff did not contest the use of multiple types of voting machines in Florida, but rather argued that a manual recount cannot be conducted for a touch-screen, paperless voting systems because there is no paper record of voter intent. The Court found that the constitutional test was satisfied by amended Florida statutes. These statutes direct the Florida Department of State to adopt a manual recount procedure based on the voter’s definite choice before certifying any type of voting machine. The statutes also require counting of overvotes and undervotes in a manual recount, and require that all manual recounts be done over the entire geographic region voting on any ballot measure.

The Court also held that manual recount procedures for touch-screen, paperless voting systems meet Florida statutory requirements, based on its analysis of the manual recount procedures for optical scan and touch-screen, paperless voting systems. Optical scan systems scan a paper ballot marked by a voter, so there is a permanent paper record for each voter. The types of ballot markings required to show definite voter choice are clearly defined in the amended Florida statutes. On the other hand, touch-screen, paperless systems only keep an electronic record of each vote. It is not possible to overvote on a touch-screen system, but it is possible to undervote. The Court found that an electronic record of each vote is sufficient, given Florida’s testing procedures for these systems prior to certification. The Court also found that definite voter choice can be established because the touch-screen systems provide warning that a voter has undervoted, provide the opportunity for the voter to review his selections, and require explicit voter acknowledgement that the voter has completed this review.