FL: District 13 race to go back to court

Jennings' lawyers want access to the touch- screen computer code.

By LLOYD DUNKELBERGER
December 16, 2006
Sarasota Herald-Tribune
H-T CAPITAL BUREAU
For original article

TALLAHASSEE -- As the dispute over the outcome of the 13th Congressional District election heads back to court next week, supporters of Democrat Christine Jennings are citing a report by a voting expert on the other side of the case who says Jennings might have won the election if Sarasota County had used a different ballot design.

In its defense of its touch-screen machines -- which Jennings has alleged were faulty and resulted in a huge undervote in the congressional race -- Election Systems & Software Inc. has hired Michael Herron, an associate professor of government at Dartmouth College.

In a Dec. 3 report, which he wrote in collaboration with political scientists from UCLA and the University of Rochester, Herron said that there was "a 100 percent chance" that Jennings would have won the race if Sarasota voters had been voting in Charlotte County, where there was a much smaller undervote in the congressional race between Jennings and Republican Vern Buchanan.

Buchanan has been declared the winner in the race by a 369-vote margin.

Jennings' supporters assert that Herron's findings, as well as testimony from Jennings' academic experts, MIT political scientist Charles Stewart and Rice University computer scientist Dan Wallach, make a compelling case that something went wrong in the ES&S touch-screen machines, resulting in 18,000 voters in Sarasota failing to cast a vote in the hotly contested congressional race.

In a hearing, scheduled to begin Tuesday in a circuit courtroom in Tallahassee, Jennings' lawyers will assert that those academic opinions bolster their argument that they should have access to the computer codes of the ES&S iVotronic machines to determine whether a software or hardware flaw led to the undervote.


But ES&S has resisted any disclosure of its codes, arguing that two state reviews of the machines have found no physical problems with the voting system.

ES&S' lawyers also note that Herron, in contrast to Jennings' academic experts, assert that it was a ballot design flaw that led to the large undervote, as opposed to some software or hardware problem with the electronic voting machines.

Herron's report argues that the problem was the grouping of the Buchanan-Jennings race on the same electronic page as the governor's race, which had a large field of candidates.

A Herald-Tribune investigation previously suggested that flawed ballot design was likely the main reason for the highly unusual undervote.

Herron concluded that if Sarasota County had used a similar ballot design as Charlotte, where the congressional race was on its own page, there would have been a much lower undervote, probably resulting in a Jennings victory.

Herron's report mentioned problems in other counties that used iVotronic machines. A Herald-Tribune analysis has shown that massive undervotes occurred in those counties where the multiple-candidate governor's race was grouped with other races, such as the attorney general's contest.

"The problematic grouping method that Sarasota employed -- having a two-candidate U.S. House race on the same touch-screen as the Florida gubernatorial race -- was employed by other counties, albeit with different races, and in these other counties and associated races we generally find high undervote rates," he wrote.

As to why the grouping of two races on one electronic page may have led to an undervote, Herron said it remained to be determined. It could be a problem where a two-candidate race was grouped with a race with multiple candidates, or he suggested it could simply be a problem when multiple candidate names were listed on one page.

But because of those apparent problems, Herron's report does conclude: "iVotronic touch screen voting systems should not combine important races on the same voting page."

As Jennings' lawyers point out, Herron's report also does not rule out a machine malfunction as the cause of the problem.

However, Herron made it clear that he believes that is doubtful.

He noted that if a "glitch" had occurred, it would have been present in all of the Sarasota voting machines but only impacted one race -- the congressional contest. It would have also been present in voting machines in Charlotte and Lee counties, but there it would have impacted different races.

"Yes, this is possible," he wrote. "However, it seems to be a significant stretch of the imagination."

____________________________________

Article published Nov 9, 2006
RECOUNT
Dist. 13 voting analysis shows broad problem

For original article

Sarasota Herald Tribune
By BOB MAHLBURG and MAURICE TAMMAN
bob.mahlburg@heraldtribune.com
maurice.tamman@heraldtribune.com

SARASOTA COUNTY -- A review of Sarasota County voting results shows that in almost every precinct a high percentage of voters didn't cast ballots in the hotly contested 13th Congressional District, a trend that likely affected the outcome of the race.

Democrat Christine Jennings lost to Republican Vern Buchanan by 368 votes, making it the second closest congressional race in the country.

More than 18,000 voters who showed up at the polls voted in other races but not the Buchanan-Jennings race.

That means nearly 13 percent of voters did not vote for either candidate -- a massive undercount compared with other counties, including Manatee, which reported a 2 percent undervote.

If the missing votes had broken for Jennings by the same percentage as the counted votes in Sarasota County, the Democrat would have won the race by about 600 votes instead of losing by 368, according to a Herald-Tribune review. Even if the undervote had been 8 percent -- more than three times what it was in Manatee -- Jennings would have won by one vote.

While some have speculated that people simply chose not to vote in the District 13 race, many voters say the unusual undervote was caused by badly designed touch-screen ballots, which they say hid the race or made it hard to verify if they had cast their vote.

More than 120 Sarasota County voters contacted the Herald-Tribune to report such problems, almost all regarding the Jennings-Buchanan race.

At a press conference Wednesday, Supervisor of Elections Kathy Dent said she did not know specifically what caused the undervote.

"I do not know what to attribute it completely to. It's not a mechanical issue; it would be voters overlooking the race. We did not have any equipment failure," Dent said. "I'm not a mind reader. I can only give you conjecture."

But prior to the election, Dent had sent notices to her poll workers to warn voters that the District 13 race was easy to miss as they scrolled through their touch-screens to vote.

Dent declined repeated requests for Wednesday for interviews.

A review of precinct-by-precinct voting results in Sarasota County shows that voting problems were widespread and cut across party lines. Virtually every precinct had relatively high undervotes. Among the worst was La Casa Mobile Home Park, a retirement park for seniors where 30 percent of people who showed up at the polls did not have a vote recorded in the Buchanan-Jennings race.

Meanwhile, the estimated undervote in DeSoto County was 1 percent based on the number of people who voted in the governor's race versus the District 13 race. In Hardee County, the undervote was roughly 5 percent.

The review of Sarasota County results showed high numbers of undervotes occurred in precincts regardless of whether Jennings or Buchanan was the preferred candidate.

Although some blame the undervote on anger at the mudslinging in the race and general dislike of Buchanan by some other Republicans, that seems unlikely given that the undervote was not repeated in other counties and was not heavier in strong Republican precincts. In fact, in precincts that went for newly-elected Gov. Charlie Crist, the number of undervotes was slightly less than in precincts that went for his Democratic challenger.

In addition, absentee voters, who didn't have to use the voting machines, had only an estimated 1.8 percent undervote.

Aubrey Jewett, a University of Central Florida political scientist who specializes in Florida and congressional politics, said he finds it hard to believe so many voters would intentionally refuse to vote in the high-profile race but then cast ballots for little known races such as hospital board. The hospital board race in Sarasota had more votes than the District 13 race.

"It's possible people just declined to vote, but it doesn't seem likely to me," Jewett said. "It's certainly a very unusual situation."

The big gap in voting for the Buchanan-Jennings race could also stem from defective voting equipment or problems with the way the ballot was displayed, Jewett said.

State officials downplayed the possibility of problems with the ballot, machines or other issues.

"I'm not sure there's even a problem," said Jenny Nash, a spokeswoman for the Florida Secretary of State, who oversees elections. She said the office had not received a single complaint or contact about the race.

Nash repeated Dent's suggestion that voters may have intentionally decided not to vote in the congressional race.

"It could be a protest vote. There's a lot of different reasons people undervote," she said. "Certainly undervoting is the voter's prerogative."

Nash said no state investigation is planned.

State Rep. Nancy Detert, R-Venice, who was a candidate in the Republican primary for the congressional seat, said she thought many voters may have decided "to send a message" about negative campaign ads by not voting in the race.

"I talked to a lot of people who, because of the negative campaigning, said they wouldn't vote for either candidate," Detert said.

Former Sarasota Republican Party Chairman Tramm Hudson, who also was a candidate in the race until he was knocked out in the primary, said he heard from a number of voters who told him "they were going to have to hold their nose on whether to vote for the Republican or Democrat."

But Hudson was skeptical that so many voters in Sarasota County would go to the polls and then not vote for the congressional race.

"It's a pretty dramatic number," Hudson said. "I believe you have to compare it to Manatee, Charlotte and DeSoto counties. They're in the same (congressional) district. They saw the same ads and got the same mail."