The Case of the Disappearing Votes: Lessons from the Jennings V. Buchanan Congressional Election Contest

The November 2006 congressional balloting in Florida' s Thirteenth District was a model for how not to conduct an election. The final margin was less than 400 votes out of nearly a quarter million total ballots cast.1 But the candidate who officially "lost" came up short only because 18,000 congressional ballots cast on paperless electronic touchscreen voting machines in her home county turned up blank.2 The ensuing litigation, both in state court and in the U.S. House of Representatives, demonstrated that about 14,000 of those 18,000 Sarasota County congressional "undervotes" - ballots with no vote for either congressional candidate - were likely unintentional, and that had those ballots been counted as they had been intended, the candidate who officially lost by nearly 400 votes would instead have triumphed by about 3,000.3 That is no way to run an election. This Article, however, focuses not on the substantive outcome, but rather on the procedures used during the "election contest" litigation that followed the voting. That litigation dragged on through more than half of the congressional term; even if it ultimately had led to a reversal of the election result, the less popular candidate still would have represented the district for most of the 1 10th Congress.4 Even worse, the litigation ultimately was utterly inconclusive as to the reason for the 18,000 electronic undervotes because discovery targeting the defective voting system was thwarted when the voting machines' manufacturer successfully invoked the trade-secret privilege to block any investigation of the machines or their software by the litigants.5 Today, all we know with any degree of certainty is that the electorate's second choice was awarded the congressional seat.6 We will never know why. That is no way to run an election contest. Part I of this Article recounts what happened on election day in Florida's Thirteenth Congressional District. Part ? describes and analyzes the state-court election contest, and Part m does the same for the election contest filed in the House of Representatives, which is the ultimate arbiter of all contested House elections. Because this Article's co-authors represented the plaintiff in those election contests, the discussion reflects first-hand experience litigating the cases. Building on the problems encountered in Parts ? and UI, Part IV of this Article addresses several specific areas ripe for procedural reform. Enacting these reforms, some at the state level, others at the federal, would help ensure that the citizens of other states and congressional districts do not suffer the same mistreatment that befell the voters of Florida's Thirteenth District. I. THE NOVEMBER 2006 ELECTION FOR CONGRESS IN FLORIDA'S THIRTEENTH DISTRICT The November 2006 contest for Representative in Congress from Florida's Thirteenth District was one of the most hard-fought in the country.7 Indeed, with expenditures totaling more than $13 million, the campaign was the most expensive House contest in the nation in 2006, and one of the most expensive ever.8 Democrat Christine Jennings and Republican Vern Buchanan engaged in a fight to the finish for the open seat, previously held by the infamous Katherine Harris, who in 2000 had presided over the Bush/Gore dispute as Florida' s Secretary of State.9 Given the fierceness of the 2006 battle, few were shocked when the election night results showed that the victor, Vern Buchanan, had squeaked by with a razor-thin margin - only 369 votes. 10 What was surprising, however, was that the election-night numbers showed more than 18,000 voters apparently had not voted in this hotly contested race.11 Most of these voters cast choices for every other contest on the ballot - from United States Senator to hospital board.12 Yet, somehow, these voters reportedly registered no choice at all in the high-profile Jennings-Buchanan congressional race.13 The numbers were not a complete surprise, however. …