Evidence of intent key vote suit issue
Touch-screen supporters say with those machines, intent never enters the equation.

By George Bennett

Palm Beach Post Staff Writer

Wednesday, October 20, 2004

FORT LAUDERDALE — Resurrecting arguments from Florida's 2000 presidential election dispute, lawyers and witnesses sparred in federal court Tuesday over determining "voter intent" during ballot recounts.

In a new twist for 2004, however, Secretary of State Glenda Hood's defense team said subjective judgments about intent have been replaced by a more objective standard of "definite choice."
 The issue is central to a lawsuit by U.S. Rep. Robert Wexler, D-Delray Beach, that claims paperless electronic voting is unconstitutional.

Wexler's suit names Hood, Palm Beach County Elections Supervisor Theresa LePore and Indian River County Elections Supervisor Kay Clem as defendants.

In the 15 Florida counties that use touch-screen voting machines, Wexler wants U.S. District Judge James Cohn to order changes — possibly including giving voters the option of casting paper ballots — in time for the Nov. 2 election.

In a close election, Florida law says paper ballots that go uncounted by tabulating machines can be examined by hand to see if they have any markings that would allow a canvassing board to find "clear indication on the ballot that the voter has made a definite choice."

Electronic systems don't produce paper ballots, but they can provide a printed post-election report showing how ballots were cast and whether a voter cast an undervote, which is a ballot in which no vote is registered in a race.

Hood's attorneys argue that those post-election reports satisfy the state's manual recount law. Wexler says the printouts are inadequate because voters never interacted with them and they provide no evidence of a voter's intent.

Wexler attorney Jeffrey Liggio repeatedly grilled witnesses on the intent question Tuesday. The state's witnesses argued the question is moot.

"With a (touch screen), the square next to the candidate is either marked or not marked. So there's never a question of voter intent," said Michael Shamos, a Carnegie Mellon computer science professor hired by the state at $475 an hour as an expert witness.

Shamos also testified that electronic voting is more reliable and less susceptible to fraud than paper systems.

Liggio asked Pasco County Elections Supervisor Kurt Browning about a Division of Elections report showing that touch-screen voters were far more likely to cast undervotes in the 2002 governor's race than voters who used paper optical-scan ballots. Liggio focused on the 1,562 touch-screen undervotes in Pasco County and asked Browning if he knew the reason for them.

"Intentional choice undervotes? Mistake undervotes? Error undervotes or combination of all three?" Liggio asked.

"They're undervotes," Browning replied.

"We don't know if they were intentional or a mistake?" Liggio continued.

"I don't know," Browning said.

Later, Liggio pursued the same line of questioning with Paul Craft, the chief of voting systems certification for the Division of Elections, who testified from Tallahassee via videoconferencing.

Looking at a report showing undervote totals in an election, Liggio asked, "Would it show the voter intent of the undervote?"

"I don't know if that's really relevant. You know, we keep bandying about this voter-intent thing," Craft responded.

He noted that, in Florida's 2001 election reform, the words "voter intent" were replaced in the recount statute by the language about a "clear indication" of a "definite choice."

"You are interpreting the new Florida statute to say that voter choice is different from voter intent?" Liggio asked Craft later.

"I can read and see the Legislature made a change," Craft said.

Outside court, attorneys for Hood said they believe there is a difference between "intent" and "choice," with the latter standard being met by the printouts from touch screens.

"There's no difference in my mind," Liggio said.

Cohn said he expects the trial to conclude today. The judge has not indicated when he might issue a ruling.