Florida Voters Join Emergency Petition for Access to Voting Machine Information

Affiliate: ACLU of Florida
January 9, 2007 12:00 am

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Appeals Court Review Sought in Lawsuit Over Contested Congressional Race

TALLAHASSEE, FL – Voters from Sarasota County who are contesting the election in Florida’s 13th Congressional District joined and added to an emergency petition for review filed last Wednesday by candidate Christine Jennings in the First District Court of Appeals. The petition asks the higher court for expedited review of Leon Circuit Court Judge William L. Gary’s December 29 order denying plaintiffs access to the e-voting hardware, software and source code used in November’s election.

“The voters have a right to know what went wrong in this election,” said Rebecca Steele, Director of the American Civil Liberties Union of Florida’s West Central Regional office. “The Tallahassee court’s ruling violates clearly established law that people cannot be denied access to information they need to prove their case. The court said there’s no issue because the state’s audit – run by the very parties being sued – showed no problems. That would be like denying Enron shareholders access to financial records because Enron’s auditors said ‘everything was fine.'”

According to the initial results, the machines in Sarasota County did not register a vote in the congressional race on over 18,000 ballots. Judge Gary denied attempts by voters and Jennings to compel Elections Systems & Software (ES&S), the company that operates the machines, to turn over its technology for independent expert examination, even after they had agreed to a protective order designed to protect ES&S’s claimed trade secrets. The ACLU maintains that Judge Gary’s decision put the interests of private corporate and political interests ahead of Florida voters.

ES&S’s own expert admitted during the hearing that the “undervote” rate was abnormally high and that machine malfunction could not be ruled out as the cause. Furthermore, Judge Gary cited in his decision an unsubstantiated report from an incomplete study being conducted by the Division of Elections, which is a co-defendant in the case. The hearsay evidence was allowed in the hearing over plaintiffs’ objections without opportunity given to cross-examine its authors.

The ACLU of Florida, VoterAction, People for the American Way Foundation and the Electronic Frontier Foundation are representing the 11 Sarasota voters in an independent legal effort seeking answers about the 18,000 missing votes in Sarasota County from the last general election. The coalition is seeking a revote and thorough investigation of the e-voting machines to ensure that such errors won’t happen again. The lawsuit is nonpartisan and not affiliated with either candidate from the race. Lowell Finley, Co-Director of Voter Action, is serving as lead counsel.

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