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Judge rules against Jennings, Democrats to seat Buchanan

Dec. 29. 2006 - Associated Press

TALLAHASSEE -- A judge ruled Friday that congressional aspirant Christine Jennings has no right to examine the programming source code that runs the electronic voting machines at the center of a disputed Southwest Florida congressional race.

Circuit Judge William Gary ruled that Jennings' arguments about the possibility of lost votes were "conjecture," and didn't warrant overriding the trade secrets of the voting machine company.

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 state has certified Buchanan the winner of the District 13 race by a scant 369 votes.

The ruling Friday from Judge Gary prevents for now the Jennings camp from being able to use the programming code to try to show voting machines used in Sarasota County malfunctioned. Jennings claims that an unusually large number of undervotes _ ballots that didn't show a vote _ recorded in the race implies the machines lost the votes.

"The judge has reaffirmed that there is no merit to Christine Jennings' baseless allegations that the voting machines malfunctioned," Buchanan spokeswoman Sally Tibbetts said in a statement released by his campaign. "As noted by the judge in today's ruling, two parallel tests conducted by the state revealed '100 percent accuracy of the equipment in reporting the vote selections.'"

Reggie Mitchell, a lawyer for People for the American Way, a group working with the Jennings campaign in challenging the election results, said the judge's decision would likely be appealed.

"We'd like to get (the code) and prove our case as opposed to listening to the state and (the voting machine company's) theories," Mitchell said.

Jennings still has a complaint filed before Congress, which is the ultimate arbiter of who will fill the seat. The seat is being vacated by Rep. Katherine Harris, a Republican who unsuccessfully ran for the Senate.

"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.

But that was before Gary put a dent in Jennings' plans with his ruling Friday, in which he said that testimony by experts for Jennings about how unlikely it was that voters would have chosen to simply skip the race was merely "conjecture."

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."

Neither Jennings nor her lawyers could be immediately reached following Gary's ruling.

Holt said Democrats were sending a message that the winner of the seat should be decided deliberately.

"This is not going to be a Congress where procedural matters are determined by brute force," he said. But, he said he believed the evidence would show that the vote was marred and there was a good possibility Jennings would ultimately be seated.

The electronic touch-screen machines used in Sarasota County are at the center of the challenge.

Some 18,000 Sarasota County electronic ballots did not register a vote in the race, a much higher undervote rate _ nearly 15 percent _ than in others such as those for governor or U.S. Senate. Jennings contends the machines lost the votes. Buchanan backers and the company say that if there was an unusually large undervote it was likely because of bad ballot design.

The state found no evidence of malfunctions in the machines, which were made by Election Systems & Software.

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