This story is by CBS News producer Phil Hirschkorn
A Florida Democrat plans to appeal a court ruling stifling her hopes for a new election in the nation's only unresolved congressional race, while Democrats in charge of the next Congress vow to examine the race and could possibly order a revote if the courts don't.
Christine Jennings contends faulty electronic voting machines like the ones used by 40-percent of American voters cost her the seat representing south Florida in the House of Representatives. But she lost a key court ruling on Friday, when a state judge denied experts tapped by her campaign access to the machines.
Florida has certified Republican Vern Buchanan as the winner over Jennings by 369 votes out of 238,000 counted and recounted in the state's 13th congressional district, which encompasses five counties south of Tampa.
State Judge William Gary rejected motions by Jennings and groups representing voters to probe the ES&S touch screen machines and their software used in the most populous county, Sarasota, where if results are to be believed, one in every seven voters chose to skip the race.
"Plaintiffs have presented no evidence to demonstrate," Judge Gary wrote in his order, "the results not valid."
Jennings argues proof of machine malfunction lies in the 18,000 electronic ballots, or 15-percent of those recorded by machines on Nov. 7 and in two weeks of early voting, showing no preference in the House race. By comparison, only two-and-half-percent of Sarasota voters using paper absentee ballots skipped the House race. In two other counties using the same ES&S machines, fewer than five-percent recorded no House vote.
"The testimony of plaintiffs' experts was nothing more than conjecture and not supported by credible evidence," Judge Gary said, after holding two days of hearings in Tallahassee. Gary sided with ES&S, who argued its software, or source code, was a trade secret.
"It's shocking that there is more concern for protecting a company's profits rather than protecting our right to vote," Jennings said in a written statement following the ruling. "The secrecy and question marks surrounding electronic voting is creating a real crisis in confidence among America's voters, and the only way to resolve this is by conducting a thorough review by outside experts."
Meanwhile in Washington, Rep. Rush Holt (D-N.J.) announced that on Jan. 4, the first day of the new Congress, he will call for an "inquiry," a symbolic act putting the House on record recognizing the challenge to Buchanan's election. Jennings has filed a notice of contest with the House Administration Committee, which will begin its own independent investigation, backed by subpoena power, next week.
"The evidence will show the certification did not reflect the will of the voters and a revote is necessary," Holt told reporters. "No one in a seat like this should get too comfortable."
Holt said if Buchanan is eventually removed from his seat, which the House has the power to do and has done at least three times in the past 70 years, that would be "based on the evidence, not on a partisan power play."
Holt plans to reintroduce legislation mandating electronic voting machines to generate a voter verifiable paper trail as backup. Florida is one of 15 states using machines that don't. A majority of the last Congress co-sponsored his bill, but it never came to the floor.
"In too many elections, federal and local in recent years, there have been results that can't be believed and can't be confirmed," Holt said.
The House investigation and court appeals over Florida's race could drag on for months.
"I know that I won, and I know that a re-vote is very, very important, so that every person can have their vote count," Jennings told CBS News. Since she won 53-percent of the Sarasota vote, if a normal percentage of ballots had no preference for the House race – say 3,000 instead of 18,000 – Jennings would have easily beaten Buchanan.
"I do see us as the test case for the United States," Jennings continued. "This one is so in-your-face, that no one can deny that there's a problem."
Only 1,800 Sarasota voters skipped the governor's race, the first listed on the electronic ballot, and only 1,600 skipped the senate race, which immediately followed the House race.
Jennings said, "I will fight as long as I need to, until we have an answer as to what happened to our votes."
Kendall Coffey, Jennings's attorney, who represented Al Gore in the disputed 2000 presidential election, told CBS News, "As a Floridian, it's very frustrating. Instead of 'never again,' it's 'here we go again,'"
Coffey derided the state's "rubber stamp recount" as a re-tally that failed to capture voter intent.
"The only debate is how much the malfunction was machine error. A 15-percent non-vote in a hotly contested congressional race basically hasn't happened before in modern times," Coffey said.