FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUNE 20, 2006

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 04-16280

________________________

D. C. Docket No. 04-80216-CV-JIC

ROBERT WEXLER,Congressman, 

ADDIE GREENE, Commissioner, 

BURT AARON, Commissioner, 

TONY FRANSETTA, 

Plaintiffs-Appellants, 

versus 

ARTHUR ANDERSON, 

Supervisor of Elections for Palm Beach County, 

KAY CLEM, 

Supervisor of Elections for Indian River County, 

Florida and President of the Florida Association of 

Supervisors of Election, 

FLORIDA SECRETARY OF STATE, 

Glenda E. Hood, 

Defendants-Appellees. 
 Honorable Lyle E. Strom, United States District Judge for the District of Nebraska,

*

sitting by designation.

 Prior to oral argument, the parties submitted supplementary briefs on the issue of 1

whether the present appeal was rendered moot by either: (1) the passage of the Help America

Vote Act (“HAVA”) or (2) the expiration of the emergency rule that formed the basis of the

district court’s decision. We conclude that because the parties’ differing interpretations of

HAVA’s requirements to a certain extent restate the present controversy and because the lapsed

emergency rule has been replaced by a substantively identical permanent rule, the instant appeal

is not moot.

2

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(June 20, 2006)

Before DUBINA and KRAVITCH, Circuit Judges, and STROM , District Judge. *

KRAVITCH, Circuit Judge:

The issue presented in this appeal is whether Florida’s manual recount

procedures in those counties employing paperless touchscreen voting machines

violate the rights of voters in those counties to equal protection and due process

under the Fifth and Fourteenth Amendments to the United States Constitution. For

the reasons that follow, we hold that they do not.1

I. Facts

Florida’s Voting System

Florida’s Electronic Voting Systems Act makes Florida’s Department of
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State responsible for developing and adopting standards for electronic voting and

for certifying electronic voting systems for use in the state. See Fla. Stat. §§

101.5601-101.5614. Each county may then choose its own voting equipment from

among those systems certified by the Department of State. Fla. Stat. § 101.5604;

see also Fla. Stat. § 101.294. In fifteen of Florida’s sixty-seven counties, voters

cast their votes using paperless touchscreen voting machines, which require that

voters make their selections directly on computer screens by literally touching the

screen as indicated. In the remaining fifty-two counties, voters cast optical scan

ballots. To vote using an optical scan ballot, a voter uses a pencil to fill in a bubble

or arrow by the name of the candidate he wishes to vote for; the ballot is then run

through an automatic tabulation machine. Voters casting absentee or provisional

ballots in touchscreen counties also submit optical scan ballots.

Manual Recount Procedures

Florida law provides for a two-stage recount procedure in certain close

elections. First, if the margin of victory is one-half of a percent or less, election

officials conduct a “machine recount,” which entails re-tabulating ballots in

precincts using optical scan ballots, Fla. Stat. § 102.141(6)(a), and, in touchscreen

voting precincts, examining “the counters on the precinct tabulators to ensure that

the total of the returns on the precinct tabulators equals the overall election return.”
4

Fla. Stat. § 102.141(6)(a). Second, if the results of the machine recount indicate a

margin of victory of one-quarter of a percent or less, officials conduct a manual

recount of all “overvotes” and “undervotes” (collectively, “residual votes”). Fla.

Stat. § 102.166. An overvote results when “the elector marks or designates more

names than there are persons to be elected to an office or designates more than one

answer to a ballot question, and the tabulator records no vote for the office or

question.” Fla. Stat. § 97.021(23). An undervote results when “the elector does

not properly designate any choice for an office or ballot question, and the tabulator

records no vote for the office or question.” Fla. Stat. § 97.021(37). 

During the manual recount phase, auditors review residual votes to

determine if there is a “clear indication on the ballot that the voter has made a

definite choice.” Fla. Stat. § 102.166(5)(a). To that end, the Department of State is

charged with: (1) adopting “specific rules for each certified voting system

prescribing what constitutes a ‘clear indication on the ballot that the voter has

made a definite choice,’” id. at § 102.166(5)(b), and (2) issuing “detailed rules

prescribing additional recount procedures for each certified voting system which

shall be uniform to the extent practicable.” Id. at § 102.166(6)(d). 

The manual recount is a fairly straightforward process in optical scan

counties; auditors look for stray marks that may have misled the machines or other
 Rule 1S-2.031, which sets forth the procedures for conducting manual recounts,

2

originally stated, in pertinent part:

When a manual recount is ordered and touchscreen ballots are used, no manual

recount of undervotes and overvotes cast on a touchscreen system shall be conducted

since these machines do not allow a voter to cast an overvote and since a review of

undervotes cannot result in a determination of voter intent as required by Section

102.166(5), F.S. In this case, the results of the machine recount conducted pursuant

to paragraph (5)(c) shall be the official totals for the touchscreen machines.

Fla. Admin. Code Rule 1S-2.031(7).

5

indicia that a voter has made a definite choice. For example, a voter might circle a

candidate’s name rather than making the prescribed mark to indicate his choice. In

touchscreen counties, however, this process has proved more difficult. It is

impossible to overvote in a touchscreen county; the touchscreen voting machines

will not allow it. It is possible to undervote when using touchscreen voting

machines, however, although the machines prompt a voter when he undervotes,

providing him with an opportunity to choose a candidate for that race. 

Emergency Rule

Because a touchscreen voter never records his vote onto paper, and there is

no provision in these counties for contemporaneous print-outs of individual ballots,

a “manual recount” in touchscreen counties does not allow for the same type of

review of ballots for voter or machine error provided in optical scan counties. In

light of these characteristics of touchscreen voting systems, the Florida Department

of State originally did not require manual recounts in touchscreen counties. An 2

administrative law judge struck down the original rule that failed to require manual
 Hereinafter, we refer to provisions of the amended permanent rule governing manual 3

recounts rather than to the emergency rule.

 A “ballot image” is an electronic record of the content of a ballot cast by a voter and 4

recorded by a voting device, Rule 1S-2.031(1)(g)1, and a “ballot image report” is a printout of

ballot images for each machine or precinct. Rule 1S-2.031(1)(g)2. 

6

recounts, however, and the Secretary of State promulgated Emergency Rule

1SER04-1 in its place. The substance of the emergency rule was incorporated into

the permanent rule governing manual recounts on November 3, 2005. See Florida 3

Department of State, Division of Elections Rule 1S-2.031 (“Rule 1S-2.031”) .

Rule 1S-2.031 provides that if a manual recount becomes necessary, the

canvassing board shall order the printing of one official copy of the ballot image

report from each touchscreen voting machine that has recorded undervotes for the 4

affected race. Rule 1S-2.031(4)(b)1. If the certified voting system is capable of

electronically sorting and identifying undervotes, then the canvassing board shall

order the printing of a report indicating the undervotes. Id. The ballot image report

shall then be examined by the counting teams to identify and highlight ballot

images containing undervotes for the affected race to determine if there is a clear

indication on the ballot image that the voter made a definite choice to undervote.

Rule 1S-2.031(4)(b)2. For those machines capable of electronically sorting, the

undervotes shall be identified by the machine. Id. 

After identifying the undervotes, the counting teams shall maintain a running
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tally of the number of undervotes totaled per touchscreen voting machine in each

precinct and then tabulate the total number of undervotes from all machines in that

precinct. The counting teams shall then compare the total number of undervotes

manually recounted for each precinct to the total number of undervotes reported by

the voting system in the complete canvass report. Rule 1S-2.031(4)(b)5. If the

comparison of the undervotes for each precinct matches the total number reported

for such precinct, then the counting team shall certify the results of the machine

recount to the canvassing board. Rule 1S-2.031(4)(b)6. If a discrepancy exists,

however, the counting teams are to re-tabulate the number of undervotes for such

precinct at least two additional times and, if necessary, the canvassing board must

investigate and resolve the discrepancy. Id.

The emergency rule instructs that “[t]he clear indication that the voter has

made a definite choice to undervote shall be determined by the presence of the

marking, or the absence of any marking, that the manufacturer of the certified

voting system indicates shall be present or absent to signify an undervote.” Rule

1S-2.031(4)(a)2. The rule goes on to specify how an undervote is designated for

each of the three types of touchscreen voting machines currently certified for use in

Florida. See 1S-2.031(4)(a)2a-c.

State Lawsuit
 Arthur Anderson has replaced Theresa LePore as Supervisor of Elections for Palm 5

Beach County.

8

On January 16, 2004, United States Congressman Robert Wexler filed a

complaint in state circuit court against Theresa LePore, who at that time was

Supervisor of Elections for Palm Beach County, Secretary of State Glenda E. 5

Hood and the Palm Beach County Board of County Commissioners. Wexler

sought declaratory and injunctive relief on the grounds that the defendants, in

approving touchscreen voting machines for use in Palm Beach County, violated the

right to vote of Palm Beach County citizens guaranteed by the Florida

Constitution. Specifically, the state complaint asserted that Florida should not

have approved and certified the Sequoia AVC Edge Voting System Release 3.1 for

use in Palm Beach County because, as a paperless voting system, it does not allow

for the manual recounts provided for by §§ 102.141 and 102.166 of the Florida

statutes.

The state circuit court dismissed the action on the grounds that Wexler

lacked standing to pursue the claims. The court further found that Wexler failed to

state a cause of action for injunctive relief because “the Florida statutory scheme

does not clearly require a voter verified paper ballot.” Wexler appealed the circuit

court’s order to the Fourth District Court of Appeal, which affirmed the dismissal. 

The Fourth District Court of Appeal found that the Secretary of State had adopted
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regulations regarding methods for recounting votes pursuant to the statutes,

rendering Wexler’s request for declaratory relief moot, as he would first have to

challenge the adopted rules in an administrative setting.

Federal Lawsuit

On March 8, 2004, Wexler, Palm Beach County Commissioners Addie

Greene and Burt Aaronson, and registered Florida voter Tony Fransetta brought

the present action against Secretary of State Hood, LePore (Arthur Anderson’s

predecessor as the Supervisor of Elections for Palm Beach County) and Kay Clem,

the Supervisor of Elections for Indian River County. Initially, the district court

dismissed their complaint under the Younger abstention doctrine. This court

vacated that order, however, and remanded for consideration of whether the use of

touchscreen voting systems that do not produce a paper record of votes and

allegedly lack a manual recount procedure violates the due process and equal

protection clauses of the Fifth and Fourteenth Amendments to the United States

Constitution. See Wexler v. Lepore, 385 F.3d 1336 (11th Cir. 2004) (per curiam).

Following a bench trial, the district court ruled for defendants, holding that

Emergency Rule 1SER04-1 established a manual recount procedure for

touchscreen voting systems that both complies with Florida law and establishes a

uniform, nondifferential standard for conducting manual recounts, satisfying the
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requirements of equal protection and due process. Plaintiffs now appeal.

II. Standard of Review

Following a bench trial, we review a district court’s conclusions of law de

novo and its findings of fact for clear error. A.I.G. Uru. Compania de Seguros,

S.A. v. AAA Cooper Transp., 334 F.3d 997, 1003 (11th Cir. 2003).

III. Discussion

The basic theory of Plaintiffs’ case is that by certifying touchscreen voting

systems that are incapable of providing for the type of manual recounts

contemplated by Florida law, the defendants have violated the equal protection and

due process rights of voters in touchscreen counties. Although we agree with the

district court that Florida’s manual recount procedures for touchscreen counties

comply with Florida law, the constitutional questions do not turn on that inquiry. 

Instead, we consider whether Florida’s manual recount procedures, which vary by

county according to voting system, accord arbitrary and disparate treatment to

Florida voters, thereby depriving voters of their constitutional rights to due process

and equal protection. See Bush v. Gore, 531 U.S. 98, 104-05 (2000) (per curiam).

Equal Protection

Plaintiffs argue that the manual recount procedure for touchscreen counties

fails to provide for meaningful review of undervotes. They contend that the ballot
 Plaintiffs also suggest that one problem with paperless voting systems is the possibility 6

of machine malfunction that cannot thereafter be revealed through a manual recount. Plaintiffs

argue that but for the potential for malfunction, manual recounts would not be necessary. This is

incorrect. Florida’s manual recount procedures are designed to uncover a variety of both human

and machine errors. Moreover, because Florida’s procedures dictate that only residual votes be

considered in a manual recount, many types of machine malfunction discussed by witnesses at

trial would not be discovered even in a manual recount of the sort Plaintiffs envision. Finally, we

agree with the district court that issues of security, configuration, and system malfunction are

dealt with by the State during the certification process and are not relevant to the question before

this court except to the extent they make it less likely that voters using those systems will cast

effective votes.

 The question of what magnitude of difference between voting systems’ accuracy rates is 7

necessary to raise constitutional concerns is not before this court.

11

image summaries generated during recounts “do not permit the canvassing board to

determine whether the voter made an intentional choice to undervote or that the

machine failed to record the vote due to voter mistake, human error, or system

error.” Plaintiffs thus argue that Florida voters are not accorded equal treatment

because those residing in optical scan counties will have an opportunity to have

their residual votes reviewed in a meaningful way in certain very close elections

whereas those residing in touchscreen counties will not.6

Plaintiffs’ fundamental error is one of perspective. By adopting the

perspective of the residual voter, they have avoided the question that is of

constitutional dimension: Are voters in touchscreen counties less likely to cast an

effective vote than voters in optical scan counties? It is this question, and not the 7

question of whether uniform procedures have been followed across a state

regardless of differences in voting technology, that the Supreme Court consistently
 The problem with Plaintiffs’ argument is clear when one considers that, according to 8

Plaintiffs’ theory, a hypothetical touchscreen voting system that is so nearly accurate that

residual vote rates approach zero would nevertheless be constitutionally suspect if it was not

susceptible to a substantially similar manual recount procedure to that applied in counties with

far less accurate voting systems.

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has emphasized in its voting jurisprudence. See, e.g., Bush, 531 U.S. at 104-05 8

(“Having once granted the right to vote on equal terms, the state may not, by later

arbitrary treatment, value one person’s vote over that of another.”); Dunn v.

Blumstein, 405 U.S. 330, 336 (1972) (“[A] citizen has a constitutionally protected

right to participate in elections on an equal basis with other citizens in the

jurisdiction.”); Reynolds v. Sims, 377 U.S. 533, 563 (1964) (“Weighting the votes

of citizens differently, by any method or means, merely because of where they

happen to reside, hardly seems justifiable.”); Wesberry v. Sanders, 376 U.S. 1, 7-8

(1964) (“[A]s nearly as is practicable[,] one man’s vote in a congressional election

is to be worth as much as another’s.”).

The right to vote is fundamental, forming the bedrock of our democracy. 

See Ill. Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979)

(“[V]oting is of the most fundamental significance under our constitutional

structure.”); Wesberry, 376 U.S. at 17 (“Other rights, even the most basic, are

illusory if the right to vote is undermined.”). Nevertheless, states are entitled to

burden that right to ensure that elections are fair, honest and efficient. See Burdick
13

v. Takushi, 504 U.S. 428, 433 (1992); Anderson v. Celebrezze, 460 U.S. 780, 788

(1983); Storer v. Brown, 415 U.S. 724, 730 (1974). Recognizing that “[e]lection

laws will invariably impose some burden upon individual voters,” the Supreme

Court has explained that the level of scrutiny courts apply to state voting

regulations should vary with the degree to which a regulation burdens the right to

vote. Burdick, 504 U.S. at 433-34; see also Siegel v. LePore, 234 F.3d 1163,

1180-81 (11th Cir. 2000) (en banc) (applying Burdick balancing to an equal

protection claim in a voting case that was unrelated to ballot access). Specifically,

the Court has instructed that

[a] court considering a challenge to a state election law must weigh

“the character and magnitude of the asserted injury to the rights

protected by the First and Fourteenth Amendments that the plaintiff

seeks to vindicate” against “the precise interests put forward by the

State as justifications for the burden imposed by its rule,” taking into

consideration “the extent to which those interests make it necessary

to burden the plaintiff’s rights.”

Burdick, 504 U.S. at 434 (citations omitted). When a state election law imposes

only “reasonable, nondiscriminatory restrictions” upon voters’ rights, the “State’s

important regulatory interests are generally sufficient” to sustain the regulation. Id. 

The plaintiffs argue that because voters in touchscreen counties have no

opportunity to have their residual votes counted manually whereas voters in optical

scan counties have such an opportunity, Florida’s disparate treatment of these
 The district court accordingly made no findings of fact with respect to the accuracy of 9

the competing voting systems. At trial, experts gave conflicting testimony regarding accuracy

rates, and although the parties introduced some academic research on the question along with

data on residual vote rates in Florida counties, the evidence in the record is sparse on this

question.

 In Stewart v. Blackwell, plaintiffs challenged Ohio’s continued use of punch card

10

voting systems in certain counties under the Voting Rights Act and the Equal Protection and Due

Process clauses of the Fourteenth Amendment. 444 F.3d 843. The plaintiffs argued that their

right to have their votes counted on equal terms with other citizens had been denied, relying on

evidence showing higher residual vote rates among voters using punch card equipment than

among those using other types of equipment, including touchscreen voting machines. Id.

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groups warrants strict scrutiny. The plaintiffs, however, did not plead that voters

in touchscreen counties are less likely to cast effective votes due to the alleged lack

of a meaningful manual recount procedure in those counties. Thus, if voters in 9

touchscreen counties are burdened at all, that burden is the mere possibility that

should they cast residual ballots, those ballots will receive a different, and

allegedly inferior, type of review in the event of a manual recount. Such a burden,

borne of a reasonable, nondiscriminatory regulation, is not so substantial that strict

scrutiny is appropriate. See id. at 434 (holding that a regulation imposing “severe”

restrictions must be “narrowly drawn to advance a state interest of compelling

importance”); Weber v. Shelley, 347 F.3d 1101, 1106 (9th Cir. 2003) (“We cannot

say that use of paperless, touchscreen voting systems severely restricts the right to

vote.”); cf. Stewart v. Blackwell, 444 F.3d 843, 868-72 (6th Cir. 2006) (applying

strict scrutiny where plaintiffs “alleged vote dilution due to disparate use of certain

voting technologies”). Thus, we review Florida’s manual recount procedures to 10
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determine if they are justified by the State’s “important regulatory interests.” See

Burdick, 504 U.S. at 434.

Here, Florida has important reasons for employing different manual recount

procedures according to the type of voting system a county uses. The differences

between these procedures are necessary given the differences in the technologies

themselves and the types of errors voters are likely to make in utilizing those

technologies. Voters casting optical scan ballots can make a variety of mistakes

that will cause their ballots not to be counted. For example, a voter casting an

optical scan ballot might leave a stray pencil mark or circle a candidate’s name

rather than filling in the appropriate bubble. Thus, although an optical scan

tabulation machine may register an undervote for a particular race on a particular

ballot, there may be sufficient indicia on the ballot that the voter actually chose a

candidate in that race such that the vote would be counted in a manual recount. In

contrast, a voter in a touchscreen county either chooses a candidate for a particular

race or does not; the touchscreen machines do not record ambiguous indicia of

voter intent that can later be reviewed during a manual recount.

Plaintiffs do not contend that equal protection requires a state to employ a

single kind of voting system throughout the state. Indeed, “local variety [in voting

systems] can be justified by concerns about cost, the potential value of innovation,
16

and so on.” Bush, 531 U.S. at 134 (Souter, J., dissenting). Among other things,

witnesses for the State testified that touchscreen machines have certain benefits for

disabled voters and they prevent some of the voter errors that are characteristic of

optical scan voting systems. Accordingly, we hold that Florida’s manual recount

procedures are justified by the State’s important regulatory interests and, therefore,

they do not violate equal protection. See Burdick, 504 U.S. at 434.

Due Process

Plaintiffs argue that Florida’s manual recount procedures are devoid of

“fundamental fairness,” thereby depriving voters of due process. See Joint

Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 161 (1951) (Frankfurter,

J., concurring). However, as we noted above, whatever burden, if any, Florida’s

manual recount procedures place on voters, that burden is justified by the

important regulatory interests outlined above. Therefore, we hold that Florida’s

manual recount procedures do not deprive voters of due process.

For the foregoing reasons, the judgment of the district court is AFFIRMED.