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Something rotten in the state of Florida

Pregnant chads, vanishing voters... the election fiasco of 2000 made the Sunshine State a laughing stock. More importantly, it put George Bush in the White House. You'd think they'd want to get it right this time. But no, as Andrew Gumbel discovers, the democratic process is more flawed than ever

29 September 2004

Of the many weird and unsettling developments in Florida since the presidential election meltdown four years ago, none is so startling as the fact that Theresa LePore, the calamitously incompetent elections supervisor of Palm Beach County, still has her job. It was LePore who chose the notorious "butterfly ballot" - a format so confusing that it led thousands of Democrats, many of them elderly, retired Jewish people, to punch the wrong hole, giving their vote not to Al Gore, as they had intended, but to the right-wing, explicitly anti-Jewish fringe candidate Pat Buchanan.

It was LePore, too, who caused huge problems for the fraught re-count process, first by insisting on the strictest standards for determining voter intent and then, with the final deadline 72 hours away, ordering her staff to take the day off for Thanksgiving. As a result, Palm Beach County fell short of completing its manual re-count on time, and the whole process - which even under LePore's strictures had turned up an extra 180 votes for Gore - was rendered void.

Arguably, no one person did more to foul up the maddeningly close election in Florida in 2000, and no individual bears more responsibility for the fact that George Bush ended up President instead of Gore. (Without the butterfly ballot, Gore would have taken as many as 7,000 more votes and cruised past Bush's official 537-vote margin of victory.) Yet Theresa LePore will still be in charge for this November's presidential election - and things have got considerably worse in the interim.

Palm Beach isn't the only place in Florida where crazy things have happened. Officials up and down the state have behaved like drunks caught out on one bender too many. They have talked the talk of reform quite convincingly, and even lavished considerable expense on covering up their past lapses. But the bottom line is that the voting machines still don't work, political corruption and underhand campaign tactics remain rampant, and too many black and lower-income voters face daunting, often insurmountable obstacles in exercising their voting rights.

In a state that promises to be every bit as pivotal as it was last time, this is deeply worrying. And Palm Beach County shows why. After the 2000 d�b�cle, an unrepentant Theresa LePore was told by the state of Florida that she and her fellow election supervisors would have to replace the punchcard machines that had exposed the state to such ridicule. She flew to California, where she was quickly seduced by an electronic touchscreen voting system used in Riverside County, just east of Los Angeles.

She was told that Riverside's system had performed flawlessly in November 2000, even as she and her canvassing board had been hung up for weeks examining punchcards for dimpled, hanging or pregnant chads. But Riverside's tabulation system had in fact suffered meltdown on election night, creating the first of many controversies about the reliability and accuracy of its Sequoia Pacific machines.

Blissfully unaware of this, LePore spent $14.4m (�8m) on her own Sequoia system and unveiled it for local elections in March 2002. It seems to have fallen at the first hurdle. A former mayor of Boca Raton, Emil Danciu, was flabbergasted to finish third in a race for a seat on Boca Raton city council. A poll shortly before the election had put him 17 points ahead of his nearest rival.

Supporters told his campaign office that when they tried to touch the screen to light up his name, the machine registered the name of an opponent. Danciu also found that 15 cartridges containing the vote totals from machines in his home precinct had disappeared on election night, delaying the result. It transpired that an election worker had taken them home, in violation of the most basicprocedures. Danciu's lawyer, his daughter Charlotte, said some cartridges were then found to be empty, for reasons that have never been adequately explained.

Danciu sued for access to the Sequoia source code to see if it was flawed. He was told that the source code was considered a trade secret under Florida law, and that even LePore and her staff were not authorised to examine it, on pain of criminal prosecution. His suit was thrown out.

Two weeks later, something even stranger happened. In the town of Wellington, a run-off election for mayor was decided by just four votes - but 78 votes did not register on the machines at all. This meant - assuming for a moment that the machines were not lying - that 78 people had driven to the polls, not voted, and gone home again.

The scenario beggared belief, but it was touted, with a straight face, by LePore. Then and since, she has refused to acknowledge even the slightest flaw in the voting machines, and has resisted with all her might a growing clamour for a voter-verifiable paper trail as a back-up. "She's defended the system almost to the point where it's been ridiculous," Charlotte Danciu said. "She treated us as though we were sore losers, andas though we were imbeciles. The tenor of what she told us was that if people were too dumb to vote on electronic machines, they shouldn't be voting."

More phantom non-voters showed up in an election in Palm Beach County in January. Again, those supposedly present but not voting (137 people) greatly exceeded the margin of victory (12 votes). That persuaded a local Democrat Congressman, Robert Wexler, to sue LePore and the state of Florida to force them to adopt a paper trail. The case is pending.

Wexler went further, sponsoring a professor, Arthur Anderson, to challenge LePore for her job, putting up $90,000 of his own campaign money. The election got very strange, not least because it took on heavily partisan overtones. LePore, a registered Independent, was championed by the Republican Party as a much-maligned asset to Floridian democracy (a coded way of thanking her for her role in sending George Bush to the White House). Anderson had prominent Democrats stumping for him.

Any pretence of objective fairness was lost as each side accused the other of promoting a candidate intent on putting party before the electoral process. It was certainly odd that LePore was organising an election in which she was a prominent candidate. It was odder still when, on the August polling day, sheriff's deputies arrived at the supervisor's office and surrounded the building with squad cars and "do not cross" barriers. Such police presence at election sites is technically illegal.

The sheriff's department cited a possible terrorist threat and, according to a TV station, drew a parallel with the Madrid train bombings. The source of this threat was never identified, and the cordoning off of the supervisor's office - which was doubling as a polling station and collection point for hand-delivered absentee ballots - looked even more suspicious because a contentious sheriff's race was also conducted that day.

Sarah "Echo" Steiner, a member of the Palm Beach Coalition for Election Reform, said the place looked "like a crime scene" when she dropped off her absentee ballot. It took her a while to find the lone unmarked entrance at the back where the public could still go in, and she was worried that the police presence was a ploy to try to suppress Anderson's absentee vote count (which, given his supporters' mistrust of the electronic machines, was expected to be high).

LePore's handling of the absentee ballots was controversial from start to finish. Her design for the ballot required voters to fill in a broken arrow linking the name of the office to the candidate - a system widely expected to cause mayhem, which it duly did. She also took the unusual step of having the voter's party affiliation printed on the return envelope, opening the door for mischief by a corrupt poll-worker or mail-carrier. No other county does this.

Anderson won the election, but only just - by 51 per cent to 49. Election reformers were relieved, but suspicious. "We're talking about one of the most hated politicians in the country, and she almost wins?" said an incredulous Susan Van Houten, who chairs the voting reform coalition. "Those numbers: I just don't trust them any more."

But Palm Beach County will have to trust Theresa LePore in the presidential election, as she does not leave office until January. She believes she has been victimised and refuses to acknowledge any serious wrongdoing, much less apologise. "It's just amazing that you can do everything right for 30-plus years, and you have one, albeit not small, incident [the 2000 butterfly ballot], and you're crucified for it for ever," she said.

Arthur Anderson, who has yet to hear from LePore despite sending her flowers after the election, said: "She is just not recognising the level of mistrust among the voters. Much of it was entirely avoidable."

The 2000 election in Florida represented a huge conflict of interest, as the state Governor, Jeb Bush, was the brother of the Republican presidential nominee, and the person in charge of conducting the election, the Florida Secretary of State Katherine Harris, was doubling as George Bush's campaign co-chair. The conflict has persisted, in one form or another, over the past four years. The Republican Party finds itself in an unusual position in Florida: although voter registration slightly favours the Democrats, the Republicans have managed to engineer the demographics - through the gerrymandering of electoral districts - so that they have a lock on both houses of the state legislature and the Governor's office. They control almost all the machinery of government, including, in large part, the management of elections.

While they may have paid lip service to electoral reform after the 2000 fiasco, clearly their party interest lay in continuing to suppress Democratic votes while maximising the access of their own supporters. The Republicans did all they could to avoid manual re-counts in 2000 because they assumed that the more votes were re-counted in south Florida, the more they would favour Al Gore.

The same principle applies now. The Republicans can only be thrilled that those southern counties have opted for electronic voting machines, without an independent paper trail, because they make meaningful re-counts essentially impossible. There have even been efforts - by the Florida legislature, and by the new Secretary of State, Glenda Hood - to make re-counts on electronic machines illegal. Only the intervention of the courts, relying on a Florida statute calling for the possibility of manual re-counts, has forestalled them - so far.

The Republican lock on power helps to explain why Florida ignored the key recommendations of a task force on electoral reform set up by Governor Bush after the 2000 election. The group urged the Secretary of State's office to certify a uniform voting system for all 67 counties. It also concluded that optically scanned paper ballots were the most secure, accurate system available: electronic voting was promising, but was not yet ready for prime time.

That was when a living, breathing conflict of interest came along in the shape of Sandra Mortham, a Republican former Secretary of State now working as a lobbyist for Election Systems & Software, makers of the notorious chad-producing Votomatic punchcard machines. ES&S was developing an electronic touchscreen machine called the iVotronic, and was very keen to sell it while memories of the 2000 election were fresh. Mortham had all the right contacts, not only because of her previous job but because she was also a lobbyist for the Florida Association of Counties.

The upshot? The iVotronic was sold to 12 of the state's largest counties, including Miami-Dade and its immediate northern neighbour Broward. ES&S paid a percentage of its profits to the FAC, as well as a commission fee to Mortham. (Most of Florida's mainly Republican rural counties went with a much cheaper optical scan system, as the task force recommended.)

The county elections supervisors who went for the iVotronic - many of them Democrats - fell in love with the idea of dispensing with paper ballots and leaving all the work of vote-counting to a computer. The lack of a paper trail struck many of them as a blessing, not a setback, as they regarded re-counts as an irksome addition to their workload and a slight to their professionalism.

Unfortunately, the officials never asked the hard questions about the systems they were buying, with calamitous results. ES&S had promised Miami-Dade it could add a third language, Creole, to its touchscreen software (built for English and Spanish), but omitted to mention that the trilingual package would be loaded via a dedicated flashcard, and would drastically slow down each machine. When the iVotronics debuted in September 2002, they took so long to boot up that the entire Miami-Dade electoral machinery ground to a halt.

To make matters worse, freak storms knocked out power to certain polling stations for so long that the battery back-ups on many iVotronics ran out. The tabulation machines then went bananas. One Miami precinct reported a 900 per cent turnout; another showed just one ballot cast out of 1,637 registered voters. "It turned out that the county had purchased a prototype," said Lida Rodriguez-Taseff, who heads the Miami-Dade Electoral Reform Coalition. "This was an invention that had never been tested. We were the guinea pigs."

For the next election, that November, officials decided to turn on the machines the night before. Because of the obvious security risks, the city had police patrols roaming the streets and guarding precincts all night, at huge cost. There wasn't much choice: as the Center for Democracy, a non-partisan group monitoring the election, discovered, it took as long as 70 minutes to fire up each machine, and the system was set up so that they had to be turned on one after the other, in sequence. Most polling stations took up to five hours to get ready.

And that is how Miami-Dade will operate in November. ES&S updated its software, but failed to reduce the boot-up time by much. "The emergency procedure has become the norm," Rodriguez-Taseff said. Apart from the security risk of leaving the machines on all night, it turns out that a software quirk makes it impossible to detect whether they have been tampered with.

That's not all: when the head of the county technology department tested the internal audit trail in the computers (the mechanism that electronic voting advocates say provides sufficient back-up for a re-count), he found key data scrambled, creating discrepancies in the secondary vote totals. "I believe there is a serious 'bug' in the programs that generate these reports, making the reports unusable," the technician, Orlando Suarez, wrote to the county elections supervisor in June 2003.

Several state officials, who have continued to trumpet the virtues of the ES&S machines, denied knowledge of Suarez's letter until this summer, at which point one of them, the head of the state division of elections, abruptly resigned. Members of the Miami-Dade coalition believe that one reason Glenda Hood wants to outlaw manual re-counts on electronic voting machines is because she knows they are impossible to do on the ES&S machines, but would rather not say so up front.

Glenda Hood has become a particular object of attack in the campaign to hold Florida accountable for its voting practices. Unlike her predecessor, Katherine Harris, who was at least nominally independent because she was elected to the post of Secretary of State, Hood is a direct gubernatorial appointment. In the words of Congressman Wexler, a particularly ardent critic: "She is the political mouthpiece of Jeb Bush, a true partisan using her office to the best possible advantage of the Republican Party. She is the mechanism Jeb and George Bush have employed to do everything in their power to make Florida a Bush state."

When a Florida court ruled that Ralph Nader - seen as a possible spoiler for John Kerry's chances in the Sunshine State - was not entitled to a place on the ballot, Hood wrote to the 67 elections supervisors and instructed them to include him anyway. (She was subsequently vindicated by the Florida Supreme Court.)

More egregiously - certainly in terms of protecting voting rights - Hood tried earlier in the year to revive a statewide purge list of suspected felons and ex-felons, ostensibly to clean up outdated voter rolls. The list, first dreamt up by Sandra Mortham when she was Secretary of State, disproportionately affects black voters, who vote Democrat by a nine-to-one margin. The list was discredited after 2000 because it was found to be riddled with errors, leading to unknown thousands of cases of wrongful disenfranchisement, many of which have not been corrected.

The state fought to keep this year's list secret, only to have it forced into the open by court order. Sure enough, the list - prepared by the consultancy firm Accenture, which has contributed $25,000 to Republican candidates in Florida - turned out to be top-heavy with black voters (including about 2,000 people who had had their voting rights restored), and it included several people who could demonstrate that they had no criminal record at all. Most startlingly, the list of 48,000 included only 61 Hispanic names - way out of line with the strength of both the general Hispanic population and the prison population of Hispanic people. It's probably no coincidence that Hispanics in Florida - especially Cuban exiles - tend to vote Republican.

Hood was sufficiently embarrassed to drop the list, but the furore focused attention on another glaring injustice in Florida politics: the fact that prisoners have no automatic restoration of voting rights once they have served their time. Florida is one of just seven states that disenfranchise ex-felons in this way, and it is by far the largest. The American Civil Liberties Union estimates that about 600,000 people in Florida are denied their voting rights because of their criminal history, including one in three black men.

Former felons can apply for restoration of their voting rights by executive clemency, but the process is tortuously long, requires them to waive the privacy of their medical and financial histories, and has no guaranteed outcome. Governor Bush himself hears a few dozen cases in hearings held four times a year. Given the political benefit of keeping most of these ex-felons off the rolls, it's no surprise that he takes his sweet time. The backlog of applicants is tens of thousands.

Florida has had felon disenfranchisement laws on its books since 1868, when slavery had just been abolished and the white elite, humiliated by the Civil War, was looking for other means to deny blacks their rights. It is hard, even now, not to see a deliber-ately discriminatory pattern in the law. As Courtenay Strickland of the ACLU Voting Rights Project put it: "Florida is creating degrees of citizenship. When you start doing that, you're creating something that begins to look not quite like a democracy."

That sentiment resonates in Miami's Little Haiti, home to roughly half the one million Haitians in the United States. Pro-John Kerry voting-rights groups have been working the area in force ahead of the 4 October registration deadline, but they have found a population almost completely disillusioned with the electoral process. "They have got it in their minds that Bush will steal the election again," said Rosa Assinthe, a Haitian-American who has been on a registration drive for the Service Employees International Union since April.

Organisers are finding that at least 20 per cent of people who register to vote through their local Department of Motor Vehicles (the agency that issues driving licences) are not receiving voter cards in the mail. People can still vote without a voter card, but only at the correct polling station. The only sure way of finding out which station to go to - and they change from election to election, as do the addresses of lower-income voters and recent immigrants - is to telephone the county elections department. That line is often busy.

Other bureaucratic games appear to be going on. Edeline Clermont, a member of the Haitian American Grassroots Coalition, said she knew of several cases where voters - herself included - received new voter cards in the mail without prompting, only to discover that the party registration had been surreptitiously changed from Democrat to either Republican or Independent. When Clermont went to vote in the August primaries, she was turned away at first because, she was told, she was not listed as a Democrat. "I told them, you'll have to call the police and arrest me, because I'm not leaving this place until I've voted," she said. The polling station officials relented and let her vote by provisional ballot.

Miami's Haitians are particularly suspicious about the way their voting rights are regarded compared with those of the Cuban Republicans living in Little Havana. They are convinced that the Cubans are furiously registering non-citizens and filling in absentee ballots for dead people, and are being allowed to get away with it. The fear among the Haitians, meanwhile, is that if they break the rules in similar ways, they will be caught and punished.

Some of their suspicions are no doubt well grounded. There is a long history of voter fraud in Miami, especially among the Cubans. A Cuban exile columnist reported recently that absentee ballots were being sold on Calle Ocho in Miami for $25 a pop.

The fact is, though, that disreputable elements are almost certainly signing up non-citizens on both sides, and there's every chance that a large number will have their votes recorded. (The zeal with which ex-felons are tracked does not extend to non-citizens.) More underhand tactics are in operation: the National Association for the Advancement of Colored People learnt that a large number of voter registration forms collected from black citizens had been dumped in a garbage can - apparently the work of a pro-Republican operative who wanted to con them into thinking that they had completed their paperwork.

Absentee ballots, meanwhile, are in a class of their own, especially as the Florida legislature - with bipartisan support - recently abolished the last meaningful impediment to absentee fraud by eliminating the requirement for a witness signature on applications. It used to be that witness signatures could be tracked to spot "brokers" - middlemen who signed up dozens or even hundreds of absentee voters. The signatures could be checked by handwriting experts. No longer. "The floodgates are open for absentee-ballot abuse to an unprecedented degree," predicted Kendall Coffey, a Democratic Party lawyer who once won a case overturning an election in Miami thanks to broker signature-tracking.

In Little Haiti, vote organiser Carline Paul explained how the system might work now. "There is a bar code on the absentee ballot that can be checked against the registration application. So they can make sure a voter is registered. But they can't check whether he or she is dead. All the Cubans need to do is to sign up everyone over 70, whether they are in a nursing home or in the next world, and they can steal this election."

Every elections supervisor in Florida has been praying for months that the November election won't be close. But what if it is? The only certainty, as Congressman Wexler said, is that "both Bush and Kerry lawyers will be in several courts on election night". Thousands of attorneys are at the ready and - unlike last time - they have their strategies and case books ready to go.

But what will they argue about? If electronic voting machines are the issue, they will be hard put to request re-counts, as re-counts will be meaningless. They will have 72 hours from the close of polling - before absentee, provisional and overseas votes have been fully counted - to mount formal challenges, and that means sorting through an anticipated avalanche of testimonials and allegations to map a coherent legal strategy.

It could be that there will be nothing to argue about, as the physical evidence of vote-tampering (paper ballots and fraudulent signatures) have become so much rarer. Or it could be that the election is taken out of the hands of the people altogether - on the grounds that the results are unreliable - and decided, once again, in the Supreme Court. The problem, Lida Rodriguez-Taseff said, is this: "We have thrown millions of dollars at correcting the outward signs of problems, without correcting the problems themselves."

Some people believe the best strategy is to keep fighting. There are high hopes of introducing a voter-verified paper trail before the 2008 presidential election, and there are signs that a grassroots movement to restore ex-felons' voting rights is finding support beyond Florida's boundaries.

"We're trying not to get bogged down in negatives," said Monica Russo, a state co-ordinator for the service workers' union. "If you do that, everyone will slit their wrists. We're union workers - we're used to having the deck stacked against us. It's about helping people to get through the process."

The mess that is Florida nevertheless came as a profound shock to a group of international election monitors who toured the state last week. Dr Brigalia Bam, who chairs South Africa's Independent Electoral Commission, was stunned by the patchwork of jurisdictions, rules and anomalies. "Absolutely everything is a violation," she said. "All these different systems in different counties with no accountability... It's like the poorest village in Africa." November could be another agonisingly long month in American politics.

28 September 2004 21:34