Jennings appeals ruling on code access

Published: Thursday, January 4, 2007 at 6:01 a.m.
Last Modified: Wednesday, January 3, 2007 at 10:52 p.m.

TALLAHASSEE — Arguing that her challenge of the outcome of the Congressional District 13 race will be "crippled" if she cannot review voting machine computer codes and hardware, Democrat Christine Jennings on Wednesday asked a state appellate court to overturn a judge's decision denying her access to that information.

Jennings' filing at the 1st District Court of Appeal in Tallahassee came the day before Republican Vern Buchanan is scheduled to be sworn in as the new representative for the congressional seat previously held by U.S. Rep. Katherine Harris, R-Longboat Key.

Buchanan has been declared the winner in the race by a 369-vote margin, although Jennings has legally contested the election outcome, contending that the fact that 18,000 voters in Sarasota County went to the polls but didn't cast a ballot in the race is an indication that the electronic touch-screen voting machines malfunctioned.

But the lawsuit suffered a major setback last week when Leon County Circuit Judge William Gary ruled that Jennings provided "nothing more than speculation and conjecture" in requesting access to the software and hardware used to operate the iVotronic machines. The machine manufacturer, Election Systems & Software Inc., considers the information to be a "trade secret."

In asking the appellate court to overturn Gary's decision, Jennings lawyers' argued that being allowed to thoroughly review the voting machines is a critical element in the legal contest.

"Without that access, her ability to develop the facts and present her case will be crippled," Jennings' appeal said. "And voters of Florida's 13th District will be left with no explanation for what actually happened to 18,000 of their ballots."

Jennings has argued that if there was a smaller "undervote" in Sarasota County, she would have gained enough votes to beat Buchanan.

But a spokeswoman for Buchanan said there is no basis for Jennings' argument.

"It's more speculation and it's more conjecture," Sally Tibbets said. "The reality is 238,000 people did vote. The votes were accurately recorded. The machines performed perfectly as certified by the state and upheld by a judge. And Vern Buchanan is the lawfully elected member of Congress."

A key element in Jennings' appeal questioned the reliability of the two post-election tests of the Sarasota machines that were performed by the state Division of Elections. The state said the machines performed accurately in the election.

"The tests themselves were thoroughly unreliable, as they failed to replicate Election Day conditions in at least a half-dozen key respects," Jennings' appeal said.

Jennings also argued that the trial judge used the wrong standard in denying her access to the computer software and hardware. Her appeal said her request for the information should be based on the "need for the material, not her likelihood of ultimately succeeding on her theory of the case."

"Otherwise the court is deciding the merits of the case before discovery can even get under way," the appeal said.

It will now be up to the appellate court to decide whether to accept the case.

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