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Courts Might Need To Settle Botched Vote Count

By at March 23, 2012 | 12:00 am | Print

A vote-counting mix-up last week has left Wellington candidates unsure of the rightful winners of the March 13 election. The confusion has led to the filing of several lawsuits and plenty of finger pointing.

In what officials are calling an unprecedented anomaly, a routine audit of the election revealed that votes were tallied improperly by computers when the results were initially counted.

Results of a recount ordered Monday change the outcome of the election — but gaps in Florida laws that have been reconfigured time and again after previous election disasters have left officials wondering how to proceed.

New counts show that Matt Willhite was re-elected to Seat 4 and candidate John Greene was elected to Seat 1, not Al Paglia to Seat 4 and Shauna Hostetler to Seat 1, as reported last week.

Meanwhile, mayoral candidate Bob Margolis still defeated incumbent Darell Bowen, but by a slim margin. Recounted results show that Margolis took 2,947 votes (50.6 percent) to Bowen’s 2,877 votes (49.4 percent).

In the Seat 1 race, Greene came out ahead of Hostetler. Greene took 2,956 votes (51.85 percent) to Hostetler’s 2,745 votes (48.15 percent).

Meanwhile, for Seat 4, incumbent Willhite had the highest winning margin of any race — 3,341 votes (58.07 percent) to Paglia’s 2,412 votes (41.93 percent).

The Wellington Canvassing Board is slated to meet Tuesday, March 27 at the Wellington municipal complex to certify the new results.

The computer glitch was discovered Monday during an audit of the election.

“In reviewing the computer programming, we established the election using the sequence of Mayor, Seat 1 and Seat 4,” Palm Beach County Supervisor of Elections Susan Bucher explained. “The computer program auto-generates ballot styles and scanner programming. In reviewing the automatically generated sequence, the computer program inadvertently changed the sequence of the races to Seat 1, Seat 4 and Mayor; therefore, the counting of the scanner cartridges on election night were not reflective of the actual voted ballots. This is why we conduct the post-election audits.”

Meanwhile, Willhite filed a lawsuit Tuesday afternoon asking for a court order to stop the board from accepting the incorrect results. He said he hoped the issue would be resolved Tuesday and that it would not require court intervention.

Greene told the Town-Crier Wednesday that he planned to file a similar lawsuit Thursday.

“We want to make sure we put ourselves in a position to be protected in case someone challenges us,” he said.

Paglia told the Town-Crier Wednesday that he would wait to see if the board certifies the new results Tuesday, but did not intend to file a lawsuit. “If the board certifies them, I will offer my congratulations,” he said.

Hostetler said she was hoping for a resolution. “I’d like to see a resolution for the good of the community,” she said.

Members of the Wellington Canvassing Board — consisting of Wellington Councilwoman Anne Gerwig, Mayor Pro Tem Dr. Carmine Priore, Councilman Howard Coates, Village Clerk Awilda Rodriguez and Supervisor of Elections Bucher — met Monday evening to discuss the matter.

Gerwig, Bucher and Rodriguez were auditing the election Monday afternoon when they discovered the discrepancy.

“The total number of votes cast were the same,” Gerwig told the Town-Crier, “but they weren’t the same numbers that were on the official certification.”

A post-election audit involves selecting ballots from a random race and precinct and hand-counting them, making sure they match the results on the computer cartridges.

When the problem was discovered, a second set of randomly selected ballots was audited to confirm the discrepancy.

The problem was compounded by the fact that Bucher’s office had certified last week’s elections on Friday, March 16.

The board voted Monday evening to order a recount of the ballots by machine, despite protest from Village Attorney Jeff Kurtz, who thought the board might not have the authority to do so.

“Election statutes do not specifically address this issue,” he said, noting that the Supervisor of Elections cannot un-certify a certified election. “We are in an unfortunate situation. There does not seem to be authority for the Supervisor of Elections or the Canvassing Board to undo the certification.”

But Gerwig said that even if they can’t un-certify the election, she wanted to know the actual results. “The certification is not my concern,” she said. “I want the data.”

Priore agreed. “Don’t tell me I can’t [order a recount] just because the law doesn’t say I can,” he said.

Kurtz worried that if the board did not have the authority to order the recount, it could be thrown out.

But board members felt it was part of the audit to investigate discrepancies.

The results came back showing that Willhite, Greene and Margolis were the winners.

Margolis said he was pleased with the results. “I’ve always said that the mayor is just one vote,” he said. “Now we have to work on building a consensus and tackling some of the issues facing Wellington.”

Willhite said that he was happy to hear that voters felt he did a good job. “I felt that I did a lot of good work for the village,” he said. “It was caught. No one has taken office yet.”

Greene said he was glad about the results but upset about the situation. “It’s unfortunate for everyone involved,” he said. “But I am glad that the process worked. The votes were counted, and we have put integrity back in the system.”

Bucher said that the error in the software, which has been in use since 2007, has never occurred in the State of Florida.

“When we inputted the election, we inputted the sequence,” she said. “Then in the background, the software is auto-generated. When we went to the auto-generated sequence, that was skewed.”

Bucher said she hoped people would understand it was a software error that was caught because of the process. She stressed that the process is in place to catch these errors.

“This in no way was a human error,” she said. “We do audits on every single election, and this is the first time that we’ve ever had a discrepancy.”

After the new results came in, a second audit was done. Gerwig pointed out, however, that the randomly selected ballots for the audit were from the exact same race and precinct.

After a long meeting Monday, the board reconvened Tuesday afternoon, after an audit report had been completed, to discuss their options.

Kurtz told the board Tuesday that he believes the election is officially certified when the Wellington Canvassing Board certifies it.

“When you look at certification statutes,” he said, “they don’t address who is to do a certification for a municipality.”

But, he said, Wellington’s charter states that the board “shall meet and publicly certify the vote.”

Priore asked about the certification of the incorrect election figures done Friday, March 16. Kurtz said he believed that was not a proper certification.

“Certification of the election is what the canvassing board does,” he said.

Additionally, Kurtz said he felt the post-certification audit was done prematurely.

Bucher said she believed it was her office that certifies results.

“Yesterday you were a rubber-stamp ministerial board,” she said. “Today you’re the board who certifies the election.”

Kurtz said his office looked at the statutes extensively and believed that because Bucher’s office is contracted by Wellington, they are not the certifying body. Because there is no language covering this in the statutes, however, there was no definitive answer.

Bucher said that she can prepare the audit for next Tuesday’s meeting.

Gerwig requested that Bucher do an audit from a random precinct in each of the three races to be sure that the second audit was correct.

“I would have much greater confidence if we were to audit each race,” she said.

Priore said he would like to see a full recount by hand to quell voter fears.

“Are these numbers correct?” he asked. “Are these machines correct? Can we ask for a full recount by hand?”

But Kurtz said that only a court could order a hand recount, meaning that an individual candidate or voter must bring a lawsuit.

Bucher noted that a hand recount is automatically allowed only if a race comes within less than one-half of 1 percent difference.

Priore said he was concerned.

“I don’t know that I have the authority to say the first result was incorrect,” he said. “I don’t see that we have that authority.”

But Coates said he believed Kurtz was right. “I believe we are the certifier of our own election,” he said.

The board instructed Bucher to prepare an amendment to the audit report for the board to approve at a meeting to be held Tuesday, March 27 at 6 p.m. at the Wellington municipal complex.

Meanwhile, several Wellington residents filed a lawsuit Wednesday against Bucher and the Wellington Canvassing Board “on behalf of all Wellington voters to ensure the rightfully elected candidates take office and all votes are counted accurately and fairly,” according to a statement released on behalf of Michael Whitlow, Linda Smith Faver, Margaret Jacobs, Karen Lloyd, Kristine Szabo, Robert Sample and Kevin Burch. The statement noted that the plaintiffs all voted for Willhite and Greene on March 13.

News Wellington

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