Appeals court reinstates suit over voting by touchscreen

TALLAHASSEE, Fla. -- Just five weeks before Election Day, a federal appeals court Monday revived a lawsuit demanding that all Florida voters who use touchscreen machines receive a paper receipt, in case a recount becomes necessary.

The 11th U.S. Circuit Court of Appeals told a federal judge in Fort Lauderdale to reopen the case, which could affect 15 Florida counties whose electronic voting terminals do not issue paper records.

It was not immediately clear if the case could be decided before the Nov. 2 presidential election.

The three-judge panel in Atlanta wrote that Judge James Cohn misapplied a 35-year legal doctrine when he threw out the lawsuit filed by Rep. Robert Wexler, D-Fla.

Wexler claims paperless ballots cannot be recounted as accurately as those cast on paper. He sued state election officials, arguing that the Constitution would be violated by a voting system that varies from county to county.

Florida adopted the touchscreen machinery after the 2000 debacle involving punch-card ballots and hanging chads. A five-week court battle over disputed ballots from several counties kept the outcome of the presidential election up in the air until the U.S. Supreme Court issued a ruling that gave President Bush the state by a 537-vote margin.

Nationwide, hundreds of counties have installed paperless voting equipment, and as many as 50 million Americans will be eligible to cast electronic ballots Nov. 2. More than 100,000 machines have been installed nationwide, but only a small percentage have printers and produce a paper record of every ballot cast.

A growing number of voter rights advocates and computer scientists say such systems expose elections to hackers, software bugs and hardware failures. They are urging election officials to ban paperless machines -- or provide stacks of paper ballots voters can use on Election Day if they want.

"You can't go into an election without clear procedures at the outset describing how recounts will be conducted," said e-voting critic Kim Alexander, president of the California Voter Foundation. "The only truly meaningful recount is to recount the voter's paper record, which they don't have in every Florida county."

The legal issue Monday was not about voting machines or paper ballots but about the relationship between federal and state courts and when it is proper to allow similar lawsuits to proceed at both levels.

In a similar lawsuit filed by Wexler in state court, an appeals court ruled last month that a paper trail is not required, saying voters are not guaranteed "a perfect voting system." That case has been appealed to the Florida Supreme Court.

The federal appeals court said there is no reason the federal case cannot go forward at the same time.

All counties in Maryland, Georgia and Delaware have touchscreens. They have also been installed in California, New Mexico, Texas and other states.