Judge finds Plaintiffs' Request for 'Access to Trade Secrets' of ES&S Would 'Result in Destroying, Gutting' Voting Machine Company's 'Protections,' Rules Jennings's, Voters' Motion Based on 'Nothing More Than Conjecture'
[FURTHER STORY UPDATES] Plaintiffs Announce They Will Appeal Decision, Additional Late Details on Congressional Challenge to House Seating of Buchanan...
By Brad Friedman on 12/29/2006, 1:27pm PT  

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:

D. The machines now challenged were tested as required by law prior to the early voting and election day voting and were found to be working properly.

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.


Miami Herald's brief coverage of the story claims, "House Democrats also said today that they will not take any action to block Buchanan from assuming the Southwest Florida seat when Congress reconvenes next week."

Though we've yet to read any such statement. if true it would be unfortunate, given the fact that even ES&S's only expert put on the stand during the hearings in Florida --- notably, he was a political scientist, not a computer expert --- concurred that had it not been for problems with the voting machines, Jennings would have won the race. A study of the undervote ballots in the race had previously found the same thing. According to the study, had votes been recorded on those ballots, Jennings would have won the election by a near 3,000 vote margin.


Sarasota Herald-Tribune's coverage, as it has been throughout the FL-13 Meltdown, is much better than Miami Herald's, whose reporting on the Democrats' statement as mentioned above appears to be rather misleading. The Herald-Tribune offers some crucial caveats and details from the Democrats --- left out by the Miami paper --- clarifying that if Buchanan is seated, it will likely be only conditionally while an investigation moves forward...

Democrats in Congress, meanwhile, said they'd allow Republican Vern Buchanan to take the seat next Thursday, but with a warning that the inquiry wasn't over and that his hold on it could be temporary.
"The House has the power to collect evidence and make a decision about who, if anyone, was duly elected to represent the people of the 13th district," U.S. Rep. Rush Holt, D-N.J., said Friday before the judge's ruling. Holt plans to make an official statement next week making it clear that by seating Buchanan, the House isn't forfeiting the right to reverse that decision later.

"No one who is in a disputed election like this should get too comfortable in the House of Representatives," Holt said in a news conference at the Capitol.
Drew Hammill, a spokesman for incoming House Speaker Nancy Pelosi, D-Calif., said that the judge's ruling Friday didn't change plans by the House to investigate the election, and also noted that the ruling isn't final because Jennings can appeal.

But Democrats have no plans to block Buchanan from taking the seat, deciding the people of the southwest Florida district should have representation while the contest is being decided, Hammill said.

"This is the best way to maintain representation for Florida District 13 while allowing the two appropriate challenges to run their course," said Hammill.

Jennings said she agreed.

"I think it's the right thing to do, to seat Vern Buchanan temporarily while we gather evidence," Jennings said before Gary's ruling. "But I am pursuing this and I do believe I will end up being the representative for the people of the 13th District."

Though the statements from Holt, Pelosi, and Jennings came prior to Gary's ruling today, it is unclear whether or not Congress may have the right to compel ES&S to make its source code available to House investigators via subpoena. (UPDATE: Someone involved with the plaintiffs in FL, who is not an official spokesperson and has thus requested anonymity, tells us, in regard to the above, that, "Congress could definitely subpoena the source code." AND A FURTHER UPDATE ON THIS: A congressional staffer has contacted us to say, "The subpoena power has a few glitches. But yes, through the Federal Contested Elections Act the power exists.")

Additionally, one of the attorneys representing the Florida voter plaintiffs in the case has said they will most likely appeal Gary's ruling.

"We'd like to get (the code) and prove our case as opposed to listening to the state's and (the voting machine company's) theories," People for the American Way attorney Reggie Mitchell told the Herald-Sentinel.

...LATE UPDATE 6:51pm PT...

Dan McCrea, a Florida spokesperson for VoterAction.org, one of the non-partisan Election Integrity organizations working on the voter lawsuit calling for a revote that had sought permission from the court to review the ES&S software, has just sent us the following statement on today's ruling, confirming that they will, in fact, appeal the decision at the beginning of next week:

Court Sides With Corporate Interests Over Florida Voters – Voters Will Appeal

TALLAHASSEE, FL. On Friday, December 29, 2006, Judge William L. Gary denied the Motion to Compel Florida elections vendor Elections Systems & Software (ES&S) to turnover the software, hardware, and source code used in the Congressional District 13 election for independent expert examination in the election contest lawsuit brought by Sarasota voters. As a result, Florida voters have once again been relegated to last place behind corporate and political interests.

“The voter plaintiffs will challenge this ruling in a state appellate court during the first week of January,” declared lead counsel Lowell Finley, Co-director of Voter Action. “Something went very wrong in this election, in which thousands and thousands of voters were disenfranchised solely because they voted on ES&S touchscreen machines. Plaintiffs must have access to the critical evidence of the inner workings of the ES&S machines to identify the source of the problem. Corporate secrecy should never trump the public right to know when it comes to our elections, the cornerstone of our democracy.”

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