Election Law @ Moritz

Recent Opinion Articles

Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Information and Analysis

FL-13, 11/28/06 Update – State Audit Begins

Print Page

November 28, 2006

Three weeks after Election Day, the state of Florida has begun its audit of the FL-13 congressional race. The purpose of the state audit is to determine why the voting machines in Sarasota County reported more than 18,000 blank votes, or “undervotes” on Election Day. According to a five-page plan released by the Florida Division of Elections on Monday, the state audit will consist of a mock election - officially called a “parallel test.” The parallel test will begin at 6:30 a.m., when county elections workers unseal five backup voting machines that were not used Election Day and use them to conduct a simulated, mock election.

Test teams, comprised solely of state elections employees, will cast ballots on the machines following scripts containing 10 predetermined voting patterns. The patterns include: (1) Voting for Jennings or Buchanan initially, then going back from the review screen to change the vote to the other candidate; (2) Voting for Jennings initially, going back from the review screen to verify the vote, then reconfirming the vote on the review screen; (3) Voting for neither candidate the first time, then going back from the review screen to change the vote to Jennings; (4) Voting for Jennings initially, then going back from the review screen to cast a deliberate undervote.

Each ballot cast on each machine will be verified by another team member as well as videotaped, with audio and video feeds to a public viewing area. Only five observers will be allowed in the test area - one for each candidate, one for a group of Sarasota County voters who are suing for a new congressional election, one for the machines' manufacturer and one for the general public. Observers must sign up in advance and maintain silence while in the testing area.

Democrat Christine Jennings’ attorney, Kendall Coffey argued that the state audit may not be thorough enough to uncover the causes of the undervote. He believes that without probing the possible causes of Election Day's undervote -- opening up the machines, examining their source code -- the investigation will be inadequate. (The audit will not investigate the basic source code of the machines. The machine manufacturer, ES&S, considers it to be a trade secret.) Coffey said that Jennings would seek access to that code for her own audit.

The parallel test is expected to be finished by 7:30 P.M. The process will be repeated Friday, this time on five voting machines that actually were used Election Day. State elections officials picked those machines because they had among the highest undervote rates in precincts with high undervote rates. A preliminary summary report of the two-day test will be prepared on Dec. 8, according to the plan. A final report on the entire audit, which will review other parts of the county's voting system, is not expected until late December.

Reported by Debra Milberg, Moritz Class of 2008