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.

Published November 22, 2006 1:17PM (EST)

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."

The fresh debacle in Florida has brought national attention to the problems with electronic voting machines. Of course, the recount last week in Florida did not find the 18,000 missing votes that the machines had possibly lost in Sarasota, since there was nothing to check the machines' own electronic records against. The recount simply involved counting once again the same electronic record, since the machines there are not required to also provide a paper record of votes cast. In response, Rep. Rush Holt, Democrat from New Jersey, has pledged to reintroduce a bill when the newly Democratic Congress reconvenes in January that would require all electronic voting machines to produce a paper record, and compel election officials to conduct periodic audits of the machines. Voters would be able to confirm how the machines recorded their votes by cross-checking it with the paper trail. Currently, 28 states, including Connecticut, Wisconsin, Illinois, California and Washington, have laws that require electronic voting machines to produce a paper trail, or voters to cast ballots on paper ballots, which are typically counted by optical scanning machines. And 13 states mandate periodic audits of the machines.

Matt Zimmerman, an attorney for the Electronic Frontier Foundation, which is involved in the voters' lawsuit in Florida, supports the Holt bill. "We have a situation now that appears to perhaps have disenfranchised 18,000 people, and all of the reasonable efforts that Holt is asking for would increase the odds that the problem would be spotted earlier. We're never going to have a perfect system. What we can do is put in reasonable safeguards that will increase transparency of the system."

David Dill, a professor of computer science at Stanford University who founded Verified Voting, a nonprofit advocacy group, was involved in the writing of Holt's bill. While he says that if there had been such a paper trail in Florida it wouldn't necessarily have prevented the problems, it would have provided more insight into what happened. It could also have reduced the scope of the problem by cluing in more voters that something had gone wrong in time for them to recast their votes in the race. "It would have been very useful, because it prints the voters' selection every time they select someone on the screen," Dill explains. When the iVotronic voting machines' paper-trail function is enabled, as it was not in the Florida race, it provides a real-time audit log of the vote. With the paper trail, for example, both actions in a "screen bounce," the vote and the second touch canceling the vote, would have been recorded.

But some voting-rights advocates say that even the Holt bill doesn't go far enough. They'd like to see all voters cast their ballots on paper, which optical scanning machines could then count. That way, in a disputed election the paper ballots could be counted by hand, eliminating the possibility of machine error playing a role. "When votes are cast on paper, it's impossible to have the situation that Sarasota faces now," says Finley, the attorney for Voter Action. "Because you always have the paper ballot that the voter marked, you can never be left with uncertainty as to whether thousands of votes have disappeared forever because of malfunctioning of an electronic device. Florida and the nation can't afford any more elections that cast doubt on the legitimacy of our voting system."

In some electronic voting machines, like the ES&S iVotronic, when there is a paper trail, it literally spews out of the machine in a long, continuous roll of paper, like a grocery receipt coming out of a cash register. John Bonifaz, founder of the nonprofit National Voting Rights Institute, which is calling for a new election in the Florida race, has doubts whether such a paper trail would have made a difference there. "There is no guarantee that a voter-verified paper trail will provide the kind of accuracy in the vote counting process that we need in order to ensure the integrity of our elections. You have to have a hand-recorded paper ballot to do any kind of recount." Brad Friedman, an election integrity advocate and blogger, actually thinks that such a paper trail would create more problems than it would solve. "If you had the paper trail," says Friedman, "you would have people running around saying, 'Look, the paper trail shows that they didn't vote.' I think that the false sense of security that the paper trail will give you is ultimately more dangerous than not having it at all." He's also in favor of a return to paper ballots.

Florida's 13th Congressional District race was probably the only race in the country where machine glitches may have determined the outcome. But Sarasota County wasn't the only locale that had major problems with electronic voting in this election. Election watchdog hot-line numbers took scattered reports from around the nation registering complaints ranging from polls opening late because voting machines weren't booted up to machines literally casting a ballot for the wrong candidate. Common Cause, a nonprofit watchdog group, got five times as many complaints about mechanical problems with voting machines to their voter hot-line number in this election as in 2004.

The rise in reported problems is partly because more voters are using the machines, thanks to $3.8 billion in federal subsidies from the Help America Vote Act of 2002, which was supposed to help ensure the integrity of elections by upgrading voting technology. Almost 40 percent of voters in the U.S. now cast their ballots on electronic voting machines. "A handful of private voting technology companies have made millions off of selling states these touch-screen voting machines as a result," says Bonifaz of the National Voting Rights Institute. "Now, we're faced with this predicament: Millions of federal dollars have been spent on a product that appears to be seriously flawed."

Meanwhile, Sarasota County has already decided to throw out its $4.7 million touch-screen voting machine system, but not because of the problems reported in this race. This Election Day, even with their apparently flawed electronic voting system, citizens in the county were able to pass a measure that will require paper to play a role in future elections. In time for the 2008 presidential election, citizens in Sarasota County will be casting their votes on paper ballots, which will be counted by optical scanners.

By Katharine Mieszkowski

Katharine Mieszkowski is a senior writer for Salon.

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2006 Elections