Wexler's bid to outlaw paperless voting fails on appeal

By George Bennett

Palm Beach Post Staff Writer

Wednesday, June 21, 2006

A federal appeals court on Tuesday rejected Democratic U.S. Rep. Robert Wexler's claim that paperless electronic voting violates the constitutional rights of Floridians.

The ruling by the Atlanta-based 11th Circuit Court of Appeals upholds a federal district judge's 2004 ruling against a Wexler lawsuit that sought to outlaw paperless voting in Florida, where 15 counties use paperless systems and 52 counties use paper ballots that are read by optical scanners.

Paper ballots can be manually recounted in a close election while those cast on electronic touch screens cannot. That different treatment, Wexler argues, amounts to a denial of the equal-protection and due-process rights of the voters who use paperless systems.

The appeals court, however, said there can be different voting systems within a state and the inability of some voters to have an electronic vote manually recounted does not unduly burden voters.

more: http://www.palmbeachpost.com/pbcsouth/content/local_news/epaper/2006/06/21/s3b_wexler_0621.html

Whatever happened to transparency?

they were appointed by people elected by the same voting machines. and they know it.

This decision seems to contradict the holding in Stewart v. Blackwell that using different voting systems within a state does amount to a denial of equal protection. This case is probably the one Wexler is referring to in the newspaper article:

"Wexler said there may be differences between Tuesday's ruling and a 6th Circuit Court of Appeals ruling in an Ohio elections case that would merit a review by the U.S. Supreme Court."

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=102&topic_id=2348382&mesg_id=2348700

There is now an apparent "split" amongst the Courts of Appeals for the 6th and 11th Circuits.

In Stewart v. Blackwell, 05-3044 (6th Cir. Apr. 21, 2006), the Court of Appeals for the Sixth Circuit held that the decision of the United States Supreme Court in Bush v. Gore must be afforded precedential value:

"Murky, transparent, illegitimate, right, wrong, big, tall, short or small; regardless of the adjective one might use to describe the decision, the proper noun that precedes it - “Supreme Court” - carries more weight with us. Whatever else Bush v.Gore may be, it is first and foremost a decision of the Supreme Court of the United States and we are bound to adhere to it." See Opinion at p. 13 n.8.

The Court then held that the selective use of "unreliable" and "deficient" punch card machines in some Ohio counties but not others violates the Equal Protection Clause of the First Amendment:

"By maintaining a system in which these two technologies are utilized, voters in Ohio vote under two separate standards. Although voters approach the polls with the opportunity to vote in the same elections for the same candidates, once they step into the voting booth, they have an unequal chance of their vote being counted, not as a result of any action on the part of the voter, but because of the different technology utilized." Opinion at p. 23

In Wexler, the 11th Circuit seemingly discounted Bush v. Gore and held that Florida's manual recount procedures in counties employing paperless touchscreen voting machines (when compared to procedures in other counties using paper ballots) does not violate the rights of voters in those counties to equal protection and due process under the Fifth and Fourteenth Amendments.

Thus, the 6th Circuit, relyng on Bush v. Gore, appears to require some significant degree of uniformity in voting and tabulation systems, whereas the 11th Circuit has essentially discounted Bush v. Gore, and does not require uniformity (or arguably does to a lesser degree). Given this apparent split in authority regarding the import of Bush v. Gore, I would expect Congressmen Wexler to pursue a petition for a writ of certiorari. It should prove interesting to see how the Supreme Court deals with the entire lawless and untenable decision it issued in Bush v. Gore.

I obviously need to check LBN more frequently.