Jennings Must Prove EVoting Faulty Or She'll Lose In Court

Christine Jennings lawyer Jeffrey Liggio said something very interesting about where this may legally be heading. Courts tend not to want to appear partisan and avoid any sign of appearance of favoring a candidate. This will be a diificult legal fight for Jennings. Florida has already ended primary runoffs in 2005.

"Maybe we are going to have to do a do-over. It may be the only solution if we cannot do an adequate recount."

By law the recount has to be done by Wednesday. If the current results still stand then Vern Buchanan will be declared the winner. Liggio's only legal hope is to proof the machines did not do a proper count. Article I of the Constitution gives states "the times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof." If the courts use Roudebush v Hartke as a precedent then Jennings is in trouble.

Incumbent Senator Hartke was certified by the Indiana Secretary of State to the Governor as the winner of the close 1970 Indiana senatorial election. Candidate Roudebush filed a timely recount petition in state court. The state court denied Hartke's motion to dismiss on the grounds of conflict with the Indiana and Federal Constitutions, and granted the petition for a recount. Hartke sought an injunction against the recount in United States District Court, invoking jurisdiction under 28 U.S.C. 1343 (3) and claiming that the recount was barred by Art. I, 5, of the Federal Constitution, delegating to the Senate the power to judge the elections, returns, and qualifications of its members. The three-judge District Court issued the requested injunction. After appeals were filed here, the Senate seated Hartke "without prejudice to the outcome of an appeal pending in the Supreme Court . . . and without prejudice to the outcome of any recount that the Supreme Court might order." Hartke then moved to dismiss the appeals as moot.

Elections Systems & Software and Kathy Dent have been trying to spin the 18,382 undervotes as the voters not making a selection. That translates into one out of every eight voters not making a selection. That is hard to buy. A 2004 runoff election for a Florida House seat had 134 undervotes. The runoff was the only race on the ballot. Ellyn Bogdanoff won by 12 votes. These kind of undervoting problems have happened before and election officials provide an array of excuses.

"You need someone to get out those machines and demo the ballots on multiple machines," University of Iowa computer scientist Douglas Jones explains. I hold out zero hope that Sue Cobb will do that.