By CBS Evening News producer Phil Hirschkorn.
Right before its 435 members were sworn in Thursday, the House of Representatives cast a shadow over one of its freshman, Republican Vern Buchanan, who represents Florida's 13th Congressional District – a seat that is still the subject of a court battle and a forthcoming House investigation.
"The House remains the judge of the election of its members," House Speaker Nancy Pelosi said from the chair. "The seating of this member-elect is entirely without prejudice to the contest over the final right to that seat."
Pelosi was responding to a parliamentary inquiry raised by Rep. Rush Holt, a New Jersey Democrat who is sponsoring legislation to require all electronic voting machines, such as the touch screen models used by 40% of the nation's voters last year, to have a voter verifiable paper trail.
The controversy over Florida's 13th district stems from the fact that 18,000 electronic ballots in the district's most populous county, Sarasota, did not indicate any preference for the House race, an extraordinarily high "undervote" of fifteen-percent. By comparison, only two-and-half-percent of Sarasota voters using paper absentee ballots skipped the House race.
Florida certified Buchanan as the winner over Democrat Christine Jennings by 369 votes out of 238,000 counted. But Jennings says she was robbed of the victory by malfunctioning machines and is suing for access to the machines and software, or source code, made by ES&S.
"I won that election," Jennings tells CBS News. "What I am concerned with is finding out what happened in this election, getting to the source code, and I want the people of this country to know that their vote counts."
Since she won 53-percent of the Sarasota vote, Jennings contends, if 18,000 more machine votes had been counted, she would have easily beaten Buchanan.
On Wednesday, Jennings filed an appeal of a state judge's ruling from last week that denied her access to the ES&S iVotronic touch-screen machines. Hundreds of voters have signed affidavits attesting to problems they had with them. The Florida appeals court has granted the defendants 20 days, or until Jan. 24, to reply.
"Experts from opposite sides in the litigation agree flaws in the election actually reversed the outcome," said Nick Berning, a spokesman for People of the American Way, which represents Sarasota voters in a companion lawsuit. "The congressional leadership has made clear that the seating of Vern Buchanan as Congressman for Florida's 13th district is provisional."
The House Administration Committee will lead the congressional investigation. "My committee is closely following the course of litigation," Chairwoman Juanita Millender-McDonald of California wrote the appeals court, urging access to the evidence in the machines. "The House customarily relies on state legal processes to provide a full and fair airing of contested election issues raised by the parties," Rep. Millender-McDonald said.
A report issued Wednesday by VoteTrustUSA, VotersUnite.org, and Voter Action points to more than one thousand instances of voting machine problems in the 2006 midterm election.
The anecdotes from more than 300 counties in 36 states include discouraged voters leaving polling places without casting a vote because the machines did not start up correctly, voters saying their choices were incorrect on ballot summary screens, and poll workers describing problems retrieving vote totals.
"In report after report, voters and poll workers were repeatedly frustrated in their effort to vote or have the votes recorded and counted correctly by recurring machine malfunctions," said Joan Krawitz, executive director of VoteTrustUSA.
Since 2002, the federal government has allocated $3 billion to assist states in acquiring new electronic voting equipment.
"The first hand accounts from distressed and frustrated voters unable to make their voices heard because of machine failures is both upsetting and compelling," said Warren Stewart, policy director for VoteTrustUSA. "It's impossible to read these reports and not see that it is crucial that we improve these machines immediately."
The full report can be found at the VoteTrustUSA website.