Did voting machines steal a Democratic victory?

In Katherine Harris' old Florida district, more than 18,000 votes went missing -- and a Republican won a House seat by 369 votes.

By Katharine Mieszkowski

Read more: Florida, Politics, News, Katharine Mieszkowski, 2006 Elections

Photo: AP/J. Scott Applewhite

Christine Jennings, the Democratic candidate in Florida's unresolved 13th Congressional District, second from left, after posing with freshman members of the House for a group photo on the steps of the Capitol in Washington on Nov. 14, 2006.

Nov. 22, 2006 | The recount is over in the 13th Congressional District in Florida. The lawyers have won -- and the Democrat has lost. As in the presidential election of 2000, that loss appears to have been caused by a glitch in the voting process. But this time, the controversy centers on the very electronic voting machines many counties around the country purchased after the 2000 election in hopes of avoiding the sort of debacle that produced Bush v. Gore.

On Monday, Florida election officials named Republican Vern Buchanan the victor in the race for the House seat that Katherine Harris -- the Katherine Harris who was Florida's secretary of state during the 2000 recount -- vacated to run for the Senate. The Florida Elections Canvassing Commission, which is made up of Gov. Jeb Bush and two other elected Republican officials, said that the results of the recount showed Buchanan had beaten Democrat Christine Jennings by 369 votes in a race where nearly 240,000 votes were cast. The commission awarded the victory to Buchanan despite the fact that the mystery of more than 18,000 missing votes has not been resolved.

Neither candidate in the race is backing down. On Monday, after the Elections Canvassing Commission announced its decision, Democrat Christine Jennings filed suit in state court. Jennings' suit asked the judge to declare her the winner or hold a new election, and charged that there was "pervasive malfunctioning" of the touch-screen voting machines in the race.

That afternoon, Buchanan held a press conference calling on Jennings to concede: "The people have spoken, and I have won this election," Buchanan said. "I won on election night, I won in the machine recount, and I won in the manual recount." Jennings responded with her own press conference, where she declared, "The voters of Sarasota and the entire country deserve answers about what went wrong with this voting system ... Our next representative to the U.S. Congress should be chosen by the will of the people, and not by a problem in the voting machine." On Tuesday, voting rights groups filed their own lawsuit demanding a new election.

The recount that officials conducted last week did little to resolve the controversy in the district's Sarasota County, where the 18,000 votes went missing and where many voters who cast ballots on ES&S iVotronic voting machines complained of problems. Some said the congressional race simply did not show up on the ballot when they voted. Others said that although they remembered voting in the race, when they got to the review screen, the system told them that they had not cast a ballot for either Buchanan or Jennings and that they had to go back to cast that vote again.

Even before Election Day, some of those voters casting ballots in early voting complained of similar problems. Officials were concerned enough to ask poll workers to caution voters on Election Day to be careful not to miss the race, but not all poll workers followed through. The problems could explain the large "undervote" in the county in the House race, where more than 18,380 people who voted in other races -- more than 13 percent of the voters casting ballots in the county -- simply did not register a vote for either candidate in the Jennings-Buchanan contest.

Since Jennings carried Sarasota County, and Buchanan's margin of victory in the race -- just 369 votes -- was so small, Jennings contends she would have been elected had the machines functioned properly. Jennings won in Sarasota County with 53 percent of the vote, compared to Buchanan's 47. According to Salon's projections, if Sarasota County had had an undervote rate similar to the other neighboring counties, which ranged from 2.2 to 5.3 percent of all ballots cast, and had the missing voters split the way the rest of the county did, going 53 to 47 for Jennings, Jennings would have won the election by between 200 and 600 votes.

The Sarasota Herald Tribune reported that while more Jennings than Buchanan supporters complained to the paper of problems, both Republicans and Democrats reported the glitches. Tuesday, a coalition of nonprofit watchdog groups, including Voter Action, the Electronic Frontier Foundation, People for the American Way and the ACLU of Florida, filed their own suit in Florida state court on behalf of nine voters and two poll workers in the district. They asked that a new election be held for the voters in the county who used the touch-screen voting machines.

Initially, Sarasota County Supervisor of Elections Kathy Dent, a Republican, tried to dismiss the undervote in Sarasota by suggesting that voters simply chose to sit out this race in protest after a nasty campaign. But that explanation didn't hold water, since the undervote rates in the very same race in the neighboring counties ranged between just 2.2 and 5.3 percent. The state has ordered an audit of the voting machines used in Sarasota, which will begin Nov. 28 and last three weeks, which is the first time the machines in question will be examined for problems.

Computer scientists and voting experts speculate that the roots of the problem could have been both with the ballot design and with the machines themselves malfunctioning. The race appeared at the top of a cluttered page dominated by the governor's race, which could have caused some voters to simply overlook the race. Yet the computer software or hardware also could have lost some votes cast, either by the software simply dropping a vote between the voter casting it on the touch screen, or the hardware of the screen registering two touches, a vote and then a touch canceling that vote. The double-touch problem is known as "screen bounce." But there's no way to reliably reconstruct what likely happened without actually examining the equipment. Both Jennings' lawyers and the lawyers for the watchdog groups are seeking to have their own computer experts examine the machines as part of discovery in their legal cases.

The fact that both Democrats and Republicans reported the problems with the machines suggests that the problems were not partisan. "It indicates that this was not some carefully targeted bit of hacking, which only adversely affected someone who was trying to cast a vote for Christine Jennings," says Lowell Finley, attorney for Voter Action, who is representing the voters in their lawsuit. "With these systems, it's always important to recognize the possibility that there could be malicious action involved, but the evidence so far points to a malfunction that is attributable to software errors or errors in the way in which the layout of the ballot was entered into the machine -- but something had a terribly harmful effect on the integrity of the election."

Next page: "We have a situation now that appears to perhaps have disenfranchised 18,000 people"