Election Law @ Moritz

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Edward B. Foley
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Information and Analysis

FL-13, 11/21/06 Update

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November 21, 2006

As previously reported, on Monday the Jennings campaign filed a complaint with the Leon County Circuit Court alleging that machine malfunctions in Sarasota County caused the rejection of a sufficient number of legal votes to place in doubt the result of the FL-13 election. Under Florida Statutes 102.168(3)(c), an election can be contested based on "receipt of a number of illegal votes or rejection of a number of legal votes sufficient to change or place in doubt the result of the election." The complaint alleges that the certification of the election was incorrect because it fails to include 18,000 undervotes that were not recorded due to a machine malfunction of the IVotronics electronic voting machines.

The campaign contends that a machine malfunction is the only possible explanation for the undervote in Sarasota County. Following the recount, in Sarasota County alone there was a 13.9% undervote on Election Day and a 17.6% undervote during the early voting period. Both of these voting periods used the IVotronics electronic voting machine. Meanwhile, absentee ballots in Sarasota County, which where counted by optical scan machine, had an undervote of only 2.5%. Also of note, the complaint asserts that the remaining counties in congressional district 13 had the following undervotes: Charlotte County - 2.5%, DeSoto County - 2.2%, Hardee County - 5.3%, and Manatee County - 2.4%.

According to the Jennings campaign complaint, these disparities point only to a machine malfunction in Sarasota County. Since the undervote is not spread through the congressional district, it cannot be due to vote apathy or negative feelings toward both candidates. And since the large undervote did not occur during the optical scan count of the absentee ballots in Sarasota County, the complaint alleges that the only possible explanation is the failure of the electronic voting machines to properly record votes for the congressional race. Thus, due to the likelihood of machine malfunction county-wide, there is significant doubt cast over the results of the election, as required to contest an election under F.S. 102.168(3)(c).

Based on these allegations, the Jennings campaign is seeking several forms of relief. The campaign asks that (1) this dispute be expedited and resolved as quickly as possible; (2) it be allowed to conduct its own independent discovery and audit of the IVotronic electronic voting machines; (3) Vern Buchanan be decertified as the winner; (4) the Elections Canvassing Commission declare that the official results of the entire FL-13 race are void; (5) the court either declare Christine Jennings the winner of FL-13 or order a special election and re-vote pursuant to F.S. sections 100.101(1) and 100.111(3) to determine a new winner of congressional district 13.

The court has already rejected the Jennings campaign’s first form of relief, issuing an order earlier this afternoon denying the request to expedite the lawsuit. This ruling means that the next critical event in the disputed election will occur Tuesday when the state Division of Elections begins its testing of touch-screen machines used in the election. The court’s order stated that Jennings and Buchanan can have their computer experts participate as observers in the state testing of the machines. Jennings’ lawsuit will move forward, although at a slower pace than her lawyers had originally proposed. The judge is expected to consider at later time her request for her experts to do their own independent testing of the touch-screen machines.

Reported by Debra Milberg, Moritz Class of 2008