Are recount rules in violation of the election laws in Florida? Lawyers?

[Wordie]

Here is an excerpt from Florida election law. Note that I found this here:http://election.dos.state.fl.us/laws/proposedrules/ElectionsRules.shtml
and on that site there are a variety of .pdf files with different portions of the election law of Florida available, along with interpretive material issued by the Division of Elections. As I understand it, the legislature writes the laws, and then he Division of Elections is charged with issuing additional rules which establish how the laws are to be carried out. There appear to have been hastily written rules concerning "undervotes and overvotes" for electronic systems, which I suspect were just CYA to try to cover for the fact that the electronic systems don't meet the intent of the law. Note that there is no real way for anyone to determine a voter's intent in the case of an undervote, as the vote for that office simply will not be registered, as I understand it.

The question I have is whether the rules that the Division of Elections has established are in conflict with current Florida election law, which offers the possibility for a hand recount, with the provision that the intent of the voter be determined by the person(s) doing the counting. If I am correct about this, I believe it may mean the election can be yet contested.

I am hoping that the DU members who have a legal background will take a look at this. And I hope it is not too long, I posted it as on the site it is in .pdf format, and consequently difficult to access.

1S-2.031 Recount Procedures.
(7) When a manual recount is ordered and touchscreen ballots are used, no manual recount of undervotes
and overvotes cast on a touchscreen system shall be conducted since these machines do not allow a voter to cast
an overvote and since a review of undervotes cannot result in a determination of voter intent as required by
Section 102.166(5), F.S. In this case, the results of the machine recount conducted pursuant to (5)(c) shall be
the official totals for the touchscreen ballots.
Specific Authority 102.166 FS. Law Implemented 102.166 FS. History–New 5-30-02, Amended 4-13-2004.

And here is a section from 1SER04-1 Manual Recount Procedures for Touchscreen Voting Systems.
(6) The following standards apply in a manual recount of overvotes and undervotes as
provided specifically by section 102.166, F.S., on a touchscreen voting system, to
determine whether there is a clear indication on the ballot image report that the voter has
made a definite choice:
(a) A clear indication on the ballot that the voter made a definite choice not to cast
an overvote shall be determined by the presence on the ballot image of a selection in the
race or issue or of an indication of an undervote in the manner proscribed by subsection
6(b). Touchscreen voting systems do not permit a voter to cast an overvote; therefore,
the canvassing board shall accept the machine recount as conclusive that there are no
overvotes in the manually recounted race or issue.
(b) The clear indication that the voter has made a definite choice to undervote
shall be determined by the presence of the marking, or the absence of any marking, that
the manufacturer of the certified voting system indicates shall be present or absent to
signify an undervote. The following represents the manufacturer indicated markings of
an undervote for each respective certified voting system:
1. ES&S iVotronic touchscreen voting system. A clear indication that the voter
made a definite choice to undervote shall be determined by the word “undervote” on the
ballot image for the affected race or issue, as illustrated in Form DS-DE 72, eff. 10/04,
hereby incorporated herein by reference and available from the Division of Elections, and
as may be amended.
2. Sequoia touchscreen voting system. A clear indication that the voter made a
definite choice to undervote shall be determined by the absence on the ballot image of
any numeric codes designated for the candidates or choices for the affected race or issue,3
or by the presence on the ballot image of less than the maximum number of numeric
codes that may be present for any affected race in which the voter is permitted to select
more than one candidate, each as illustrated in Form DS-DE 72, eff. 10/04, hereby
incorporated herein by reference and available from the Division of Elections, and as may
be amended.
3. Diebold touchscreen voting system. A clear indication that the voter made a
definite choice to undervote shall be determined by the absence of an “X” within the
brackets (< >) located next to the candidates or choices for the affected race or issue, or
by the presence on the ballot image of Xs within the brackets located next to the
candidates for the affected race which total a number less than the number of candidates
for which the voter is permitted to cast a vote, each as illustrated in Form DS-DE 72, eff.
10/04, hereby incorporated herein by reference and available from the Division of
Elections, and as may be amended.
(c) If a voter marks fewer candidates than there are positions to be elected for
those offices, the votes for all of those marked candidates shall count. For example, if the
voter is allowed to vote for 5 candidates in a special district election (“Vote for 5”) and
the voter marks 2 candidates, the votes for those two marked candidates shall count.
(7) Subject to an order issued pursuant to subsection (3), the following procedures apply
to manual recounts of undervotes on touchscreen voting systems involving all county,
multi-county, federal or statewide offices or issues required by law to be recounted:
(a) The canvassing board shall order the printing of one (1) official copy of
the ballot image report from each touchscreen voting machine that has recorded
undervotes for the affected race or issue. If the certified system does not permit the
printing of a ballot image report by touchscreen voting machine, then the canvassing
board shall order the printing of the ballot image report for each precinct that has
recorded undervotes for the affected race or issue. The ballot image report for each
certified voting system shall be substantially in the form provided in Form DS-DE 72,
eff. 10/04, hereby incorporated herein by reference and available from the Division of
Elections, and as may be amended. If the certified voting system is capable of electronic
sorting and identifying of undervotes, the canvassing board must order the printing of the
ballot image report using such capabilities. The county supervisor of elections shall
maintain a custody log for each ballot image report and otherwise assure that the ballot
image report remains secure and free of tampering at all times.

[whistle]

1. Wow, talk about covering their asses. . .

<snip from above>

1S-2.031 Recount Procedures.
(7) When a manual recount is ordered and touchscreen ballots are used, no manual recount of undervotes
and overvotes cast on a touchscreen system shall be conducted since these machines do not allow a voter to cast
an overvote and since a review of undervotes cannot result in a determination of voter intent as required by
Section 102.166(5), F.S. In this case, the results of the machine recount conducted pursuant to (5)(c) shall be
the official totals for the touchscreen ballots.
Specific Authority 102.166 FS. Law Implemented 102.166 FS. History–New 5-30-02, Amended 4-13-2004.

That pretty much says that because the touchscreen ballots can never be in error, there is no need to do recounts, so by statute we prohibit recounts! That's really arrogant isn't it.

[smartvoter]

2. The trouble is it would be the same anyway. Nothing to count.

[loudsue]

4. Then the CODE should be examined....

Of course, it should be examined ANYWAY, by impartial computer experts, but ...we're dealing with Jeb bush country.

The whole Florida election stinks to high heaven...rather to hell!! There has to be some way to get a more accurate count of the votes down there. Too bad we have a bush justice department -- his idea of "justice" is whatever goes his way.

:kick::kick:

[Wordie]

7. I believe the door is still open for a contest of the results. And I

think there could be a contest based on the questions about the e-voting machines. But I'm not certain when the contest deadline is, and what the other rules for a contest may be. If a contest was applied for on the basis of the e-votes not being truly verifiable, and it was turned down, or they refused to hear it, couldn't that refusal be challenged in the next higher court? Somehow, if this could get into court, and the evidence presented that these e-votes don't meet normal auditing standards, that would do it, I think.

[tinfoil_beret]

14. There's an easier way.

I, too, feel that they should strike down the paperless voting machines and found applicable laws. However, unless the legislatures were so inclined to support it they would find too many reasons to avoid considering the strategy, and they could delay acting on it long enough that it wouldn't affect the outcome of this election.

I found much better evidence that would not touch the issue of the vapor-vote machines to decide this election. The misallocation of voting machines in Ohio and (presumably) Florida and other states also violates Section One and effectively Section Two of the Fourteenth Amendment by preventing people from voting. The proportionment of machines shows a definite pattern that hurts John Kerry enough to swing the outcome of the election. The pattern is clearly pervasive enough to make the statistics admissable as evidence in a motion to block the electoral votes of Ohio, Florida and other states which allocated fewer machines per capita to Democratic precincts than to Republican precincts. Of course, you only need to disqualify Florida and Ohio to give the majority to John Kerry.

[Wordie]

18. Good for you! Go for it! But I hope to get your input on my last post too.

(in this thread) There is a letter from the Director of Elections to an election official that I posted excerpts of. I'd be interested in getting your impressions.

[smartvoter]

11. Agreed. Agreed. Agreed.

[whistle]

5. Exactly, so the statute might have better addressed to more. . .

. . .likely probable event that nothing invented by man is perfect and infallible, including touchscreen ballots. So most certainly vote validation procedures, recovery processes, back-ups and visual verifications are all possibilities which the statutes should require of any system used for official vote registration, tallies and tabulations. Instead, these statutes just say, "...our system can never be wrong so live with it". Bushit!!!!

[Wordie]

6. But that's just the point. The entire concept of an election implies that

there IS something to count. I really think if someone went over this with a fine tooth comb, looking for inconsitencies in these new laws, that they would be able to find SOMETHING on which to challenge this. And once the foot is in the door, it can't but help get some of the problems with these sorts of machines resolved. Gotta get it out in the open, in front of a judge in open court.

[Wordie]

3. Just as likely a case of extreme naivete, as arrogance. Dangerous either

way, imho. There is just something so wrong here. And I'm sure that a smart lawyer should be able to find a way to get at it.

[whistle]

8. No, no,no,no, I have been around these people in Tallahassee

...especially the technicians and bureaucrats who write the procedures and so forth. These people all know the vast possible list of things that can and do go wrong with election balloting. The statues are written by lawyers and legislators, and the language used in this statute is all about limiting any possible challenges to voting outcomes and controlling who gets to determine and monitor those outcomes. This is arrogant manipulation and control coupled with total ability to cover the tracks of voting fraud.

[Wordie]

10. Well then THAT is what needs to be legally challenged, for god's sake!

And, imho, we need to do it NOW, before this stuff gets so deeply entrenched that there is NO WAY to do anything about it. I don't understand why Bev gave up. Isn't a challenge still possible? And even if they throw it out at the local or even state level, isn't there some way to continue to pursue it? I mean, the Supreme Court, if it got there, could simply say that the matter had to be considered by the FL courts, if they were refusing to hear it.

[Wordie]

13. What about the FL Sunshine laws? Could they be applied to force more

transparency into the system? These companies are all running proprietary code, and as I understand it, open source code with private keys is considered a more secure means of protecting the data in the first place (computer people correct me if I am wrong here). Could a challenge be made on that basis?

Are the computer people talking to the legal people????

[tinfoil_beret]

9. This law is unconstitutional.

According to Bush v. Gore (2000), "Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another."

Likewise, the Fourteenth Amendment rules that the State can pass no laws which deny this equal protection in Section One: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

[Wordie]

12. The thing is, the e-vote machines have no grey area. There can be no

undervote or overvote. The vote just simply doesn't get recorded that way. On one level, that is an advantage. The problem comes in when there isn't any sure way to determine if those vote tallies were accurate in the first place, no transparency, no verifiability. And so, even though it may indeed be an advantage to have a system that does not allow ambiguities, I would not be above using the inconsistencies in the law to achieve a more important purpose.

[loudsue]

15. Hi t-beret! I've read your posts on this, and I totally agree.

I'd love to see the bush team CHOKE on that Supremes ruling during this election!



:kick::kick::kick:

[RedEagle]

16. I don't know about Florida, but in another state,

...there are laws and administrative rules. Rules cannot violate the law. The law takes precedence.

You would have to get outside of the election law to find what the state law is on rules vs. law.

[Wordie]

17. Any attys here who know the state law on rules vs. the law in FL?

Are the elections people in FL allowed such latitude that they can violate the intent of the legislature? I found another interesting thing on the FL elections site. Its a letter dated February 12, 2004 to The Honorable Kurt Browning, Supervisor of Elections, Pasco County, referenced as 'RE: DE 04-02 Manual Recount Requirements Relating to Touchscreen Voting Systems; §102.166, Florida Statutes" on the Florida elections site, and from Edward C. Kast, Director, Division of Elections

<snip>
Initially, the proposed content of the Rule 1S-2.031 published on October 5, 2001 in the Florida Administrative Weekly (Volume 27, Number 40, page 4619) included a provision relating to DREs which would have required, that “ manual recount shall be conducted by printing out or exporting the ballot image files and counting these files manually.” Following that publication, in public hearings held around the state, the need for the inclusion of such a requirement was raised.6 Due to the public input, that requirement was stricken from the proposed rule as being unnecessary. As a direct result, the current “Recount Procedure” rule, Rule 1S-2.031, F.A.C., only provides procedures regarding manual recounts of optical scan ballots. It is intentionally silent as to electronic voting systems, as it was not envisioned that any manual recount activities would occur with regard to undervotes cast on touchscreen (DRE) voting systems. In addition, because the rule provides no standards for the review of electronic ballot images cast on touchscreen (DRE) voting systems and because the Florida Election Code requires uniformity in
the application and operation of the election laws and rules among the counties, you are not authorized to review printed electronic ballot images of undervotes as part of the manual recount.

SUMMARY
In the context of a manual recount as prescribed by section 102.166, Florida Statutes, counties utilizing touchscreen voting systems are not required to print or review the electronic ballot images of undervotes occurring in the recounted race. In addition, because the rule provides no standards for the review of electronic ballot images and because the Florida Election Code requires uniformity in the application and operation of the election laws and rules among the
counties, you have no authority to do so.
<unsnip>

Get that last part there? I think they even RECOGNIZE they have a problem. If a hand recount was requested, which is a RIGHT under the law, they CANNOT DO IT! Couldn't there be a challenge based on the acknowledged lack of consistant standards, and the directions not to allow counts of the images?

[Wordie]

19. Link to pdf file of Director of Elections letter from post above, and MORE

http://election.dos.state.fl.us/opinions/yearIndex/de2004index.shtml

The file containing the letter I quoted in the post above is DE 04-02.

The site also has other information on opinions issued in FL over the years. ...and FL law and rulings. Unfortunately, most of the information is in the form of .pdf files, and so isn't searchable.