In a ruling issued this afternoon just prior to the Holiday weekend, the presiding Florida Circuit Court Judge William L. Gary denied the plaintiffs motion to allow review of the source code for the paperless touch-screen machines used in the contested U.S. House race in Florida's 13th district between Democrat Christine Jennings and Republican Vern Buchanan.
Jennings, and a number of Florida voters and Election Integrity organizations, had filed suit asking for a revote and to allow them to review the software used on the voting machines made by Election Systems and Software, Inc. (ES&S), after some 18,000 votes seemed to have disappeared in the race to fill the U.S. House seat vacated by former FL Secretary of State Katherine Harris. The state has previously certified Buchanan as the winner by a 369 vote margin.
Gary's terse ruling [PDF], issued this afternoon denying the motion to compel the company to turn over their source code, states that ES&S has a right to keep their software hidden from review by both the Jennings camp and voters, supporting the company's "right" to keep their "trade secrets" protected.
An audit of the machines was previously conducted by a panel convened by the state. The various plaintiff groups had roundly criticized both the make-up of the panel and the procedures used during the testing, characterizing it as an "exercise in futility." The panel was led by a known hard-right Republican partisan and included the state's own official responsible for voting machine certification. No independent Election Integrity advocates were included on the panel.
That audit --- to nobody's surprise --- revealed no problems in the hardware or software as tested. But the plaintiffs have argued that only an independent investigation of the source code used on the Direct Recording Electronic (DRE) voting machines might reveal reasons for the inexplicably large undervote rate in the race, more than 12%, only found on Sarasota's paperless touch-screen systems. Absentee paper balloting in the county, and on voting machines in other counties which make up the FL-13 district, revealed no such anomalous undervote rate. Undervote rates on paper absentee ballots in the same race, in the same county, were just over 2.5%.
Neither the Buchanan camp, nor anyone else, has been able to give a credible explanation for the disparity.
Gary's ruling denying Plaintiffs' motion to examine the voting machine source code finds that:
E. Because the election was a close one and due to Plaintiffs' allegations an audit was conducted on the voting system to verify its accuracy.
F. Two parallel tests were conducted on the subject screen systems and representatives of both Plaintiffs and Defendants were present. The test results revealed 100% accuracy of the equipment in reporting the vote selections.
G. Plaintiffs have presented no evidence to demonstrate that the parallel testing was flawed and or the results not valid.
H. The testimony of Plaintiffs' experts was nothing more than conjecture and not supported by credible evidence.
I. For this Court to grant Plaintiffs' motions would require this Court to find that it is reasonably necessary for the Plaintiffs to have access to the trade secrets of Defendant, Election Systems & Software, Inc., based on nothing more than speculation and conjecture, and would result in destroying or at least gutting the protections afforded those who own the trade secrets.
The plaintiffs had been requesting a revote for the election in the Florida circuit court. Jennings has filed a contest in the U.S. Congress, under the Constitutional provision which allows the House to determine the seating of members. When the new Congress convenes in January they must decide whether to seat Buchanan as is, seat him provisionally, seat Jennings instead, or leave the seat vacant, essentially forcing a Special Election in FL-13, or take some other action.