Continuing our coverage of issues being discussed in the 2007 Florida legislature, we’ll consider the issue of electronic voting machines.

The current state of e-voting in Florida is a complicated mix of federal and state law with county-level decision-making. Federal law, specifically the Help America Vote Act, is understood by some as mandating the use of direct recording electronic voting systems (DREs, i.e. touch-screens). This page provides a useful summary of the controversy.

State law, particular chapter 101 of the Florida Statutes, restricts the use of voting systems to those that have been certified by the state, and lays out the requirements and procedure for certification. Electronic voting systems are neither expressly prohibited nor mandated; however, there are some special requirements stipulated for electronic voting machines. (By contrast, for example, punch-card machines, such as the infamous “butterfly ballots” used in some counties in the 2000 elections, are expressly prohibited.) Among these requirements are neither a voter-verified paper trail nor the disclosure of source code. The Division of Elections has additional information about voting systems.

Counties are free to choose any voting method allowable under applicable federal and state law. (I believe this decision is up to each county’s Supervisor of Elections, but I’m not 100% sure if the county commission has any part in the process.)

For example, Alachua County uses optical scan ballots, similar to the systems used in standardized tests: the voter marks an oval with pen on paper, then the paper is scanned into an electronic reader. The physical ballots thus are available for re-scanning or hand recount. In addition, each precinct is equipped with a touch-screen machine, available to any voter upon request (primarily for disabled voters). The touch-screens do not produce a paper ballot or receipt. (Our own Eldo Varghese was a precinct’s touch-screen assistant in the 2007 Gainesville city elections, and our Jordan Wiens managed the touch-screens at several precincts in the November 2006 elections.)

With regard to the software that runs the machines, the state Division of Elections can review the source code, but candidates, parties, and voters cannot. Courts have refused to force voting machine companies to publicly disclose the source, which is copyrighted (and not FOSS) and usually claimed as a trade secret, to boot.

In January, reports surfaced that Gov. Charlie Crist (R) would recommend that the state scrap touch-screen machines. The governor’s plan includes $32.5 million in state funds to convert the 15 Florida counties that use only touch-screens to optical scan ballot systems, and to equip touch-screens used for early voting or provided for disabled voters with a paper record. The plan has drawn praise from Democrats, including U.S. Rep. Robert Wexler (D-Boca Raton), a noted critic of electronic voting. The governor mentioned the plan in his State of the State address at the beginning of the legislative session:

I hope you will also consider our initiative to build upon the progress already made to restore confidence in our voting process by funding voting machines that provide a tangible record of every vote cast — a paper trail. Let’s end this controversy for once and for all.

The proposal was included in the governor’s budget recommendation, as seen here.

In addition to the governor’s budget proposal, there are several bills that would mandate a voter-verified paper trail. At this time, I won’t provide a detailed analysis of all of them, but the text of each proposal is available: HB 377, HB 43 / SB 2242, HB 213 / SB 1174, SB 342, SB 462, SB 2164. What language, if any, will survive through the committee process, to the floor and to the governor’s desk, remains to be seen.

If I may speculate, my guess is that the governor’s budget recommendation will be approved, but no additional language will pass. As indicated by the large number of bills filed, there is a lot of interest in legislating in this area, but there is not yet a consensus on the specifics. Hammering out a solution that can pass both houses and receive the governor’s assent will require a lot of tinkering — maybe more than legislators are willing to invest in a 60-day session already loaded with other complex hot-button issues (e.g. property taxes). I think there’s a lot of public pressure to do something about e-voting, but passing the governor’s plan will allow legislators to say they’re “doing something”.

In addition, there is a fair chance that we’ll see a change in federal law soon. Last session, Rep. Rush Holt (D-New Jersey) Voter Confidence and Increased Accessibility Act had a majority in co-sponsors, but was not allowed to the floor by the Republican-controlled Rules Committee. With his fellow Democrats now controlling the House, Rep. Holt may see his bill reported out, in which case it would likely pass. Of course, even if that happens, there’s still the Senate and the President, but I still consider it a fair bet that we’ll see new federal law in this area — if not in this Congress, then in the ones following.

The issue for the Florida legislature is that their laws will need to comply with federal legislation — and no one knows what, exactly, the new federal laws would say. So legislators can either spend a ton of time hammering out intricate details now, when there’s a good chance they’ll end up conflicting with federal law in a few years, and they’ll just have to change it again. Or they can pass the governor’s recommendation and be done with the issue for the time being. I have my guesses which will happen.

For more information, see the Web sites of these Florida groups working on the issue: Florida Fair Elections Coalition, Miami-Dade Election Reform Coalition, Election Reform Coalition of Pinellas County, Sarasota Alliance for Fair Elections. Most of the public interest groups involved with the issue have endorsed this position paper released on March 1.