Florida\u27s Post 2000 Voting Systems Overhaul: The Road to Perdition, 23 J. Marshall J. Computer & Info. L. 497 (2005)

In early 2001, after the disastrous election of 2000, Florida decided to revamp its voting systems, as well as its elections laws, because it did not want another disaster. The “Electronic Voting Systems Act” (the “Act”), ostensibly modernized Florida’s outdated voting machines by authorizing the use of “electronic and electromechanical voting systems in which votes are registered electronically or are tabulated on automatic tabulating equipment or data processing equipment” prohibiting any apparatus or device “for the piercing of ballots by the voter”. Central to the recount process overhaul was the introduction in Florida of a whole new type of voting system based on the use of Direct Recording Electronic voting machines (“DREs”). DREs were jointly touted by the Florida Department of State and the Florida Association of Supervisors of Elections (“FSASE”), as having “the highest levels of accuracy and security.” The virtue lies mostly no in their purported accuracy and reliability but rather, in the fact that DREs allegedly eliminated all possibility of overvotes and reduced undervotes to instances where the voter made the concious choice to withhold his vote in a particular contest. In 2001, Florida’s recount laws were changed to reflect the new landscape where overvotes were non-existant and undervotes were intentionally created. The prototype DRE known as the iVotronic sold by Nebraska-based Election Systems & Software (“ES&S”). Much like the concept car in the local auto show, the iVotronic had never been used in any election anywhere in the world. The first use for Florida’s DREs was the September 10, 2002 Democratic gubernatorial primary. In Miami-Dade County, the results were disastrous. Some polls did not open for many hours because pollworkers had difficulty activating the iVotronic machines, while others opened with only one machine, pollworkers were unable to activate the machines and voters were turned away because there was no back-up system of paper substitute ballots for them to vote on, while some precincts were unable to print “zero” tapes and others were unable to print results tapes at poll closing. County pollworkers experienced many problems collecting and reading votes from the PEBs (Personnal Electronic Ballot). According to County auditors, many problems occurred because “the iVotronics lacked self-diagnostic functions to alert pollworkers of problems encountered during activation, operation, ballot collection and deactivation. Damage control was attempted establishing practices including the use of County employees as Voting Systems Supervisors, troubleshooters, hot line operators and pollworkers replacing in the citizen pollworker. While the spin masters were able to sell the concept that the problems of September 2002 were mostly caused by normal bumps that happen with the implementation of new technology and poor pollworker training, the fact is that the technology could and did “malfunction” in an actual election. The premise of this paper is that as demonstrated by the experiences of Miami-Dade County in the years following the infamous November 2000 election, the accuracy and reliability of DREs is far from clear as the underlying technology is, to put it charitably, “not quite ready for prime time.” As a result, Florida’s voting systems and elections law overhaul has been nothing short of the road to perdition – leaving the State in a more precarious position than before 2000 when it comes to voting system accuracy and security and converting the isolated problem of messy manual recounts into a deeper problem of untrustworthy and unverifiable results regardless of the closeness of the contest