TALLAHASSEE -- Five weeks before Election Day, a federal appeals court yesterday revived a lawsuit demanding that all Florida voters who use touch-screen machines receive a paper receipt, in case a recount becomes necessary.
The US Court of Appeals for the 11th Circuit told a federal judge in Fort Lauderdale to reopen the case, which could affect 15 Florida counties whose electronic voting terminals do not issue paper records.
It was not clear yesterday whether the case could be decided before the Nov. 2 presidential election.
The three-judge panel in Atlanta wrote that US District Judge James Cohn misapplied a 35-year-old legal doctrine when he threw out the lawsuit filed by Representative Robert Wexler, Democrat of Florida.
Wexler said paperless ballots cannot be recounted as accurately as those cast on paper. He sued state election officials, saying the Constitution would be violated by a voting system that varies from county to county.
Florida adopted the touch-screen machinery after the 2000 controversy involving punch-card ballots and hanging chads. A five-week court battle over disputed ballots from several counties kept the outcome of the presidential election up in the air until the US Supreme Court issued a ruling that gave President Bush the state by a 537-vote margin.
Nationwide, hundreds of counties have installed paperless voting equipment, and as many as 50 million Americans will be eligible to cast electronic ballots on Nov. 2. More than 100,000 machines have been installed nationwide, but only a small percentage have printers and produce a paper record of every ballot cast.
A growing number of voter-rights advocates and computer scientists say such systems expose elections to hackers, software bugs, and hardware failures. They are urging election officials to ban paperless machines, or provide stacks of paper ballots voters can use on Election Day if they want.
"You can't go into an election without clear procedures at the outset describing how recounts will be conducted," said Kim Alexander, a critic of electronic voting who is president of the California Voter Foundation. "The only truly meaningful recount is to recount the voter's paper record, which they don't have in every Florida county."
The legal issue yesterday was not about voting machines or paper ballots but about the relationship between federal and state courts and when it is proper to allow similar lawsuits to proceed at both levels.
In a similar lawsuit filed by Wexler in state court, an appeals court ruled last month that a paper trail is not required, saying voters are not guaranteed "a perfect voting system."
The case has been appealed to the Florida Supreme Court.
The federal appeals court said there is no reason the federal case cannot go forward at the same time.
All counties in Maryland, Georgia, and Delaware have touch screens. They also have been installed in California, New Mexico, Texas, and other states.