00662-wexler initial brief

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No. 04-16280-II

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

____________________

ROBERT WEXLER, Congressman )

ADDIE GREENE, Commissioner, )

BURT AARONSON, Commissioner, )

TONY FRANSETTA, )

PLAINTIFFS-APPELLANTS, ) Appeal from the United

) States District Court

v. ) for the Southern

) District of FloridaTHERESA LEPORE, Supervisor of Elections )

for Palm Beach County, Florida, ) Docket No. 04-80216

KAY CLEM, Supervisor of Elections ) CIV-COHN

for Indian River County, Florida and )

President of the Florida Association ) Hon. James I. Cohn

of Supervisors of Elections, )

GLENDA E. HOOD, Secretary of State )

of Florida , )

DEFENDANTS-APPELLEES. )

_________________________________________)

BRIEFOFPLAINTIFFS-APPELLANTS

Robert S. Peck, Esq.

CENTER FOR CONSTITUTIONAL

LITIGATION, PC

1050 31st

Street, N.W.

Washington, DC 20007

(202) 944-2874 (o)(202) 965-0920 (fax)

Email: [email protected]

Jeffrey M. Liggio, Esq.

LIGGIO, BENRUBI & WILLIAMS,

PA

1615 Forum Place

Suite 3B, The Barristers Building

West Palm Beach, FL 33041(561) 616-3333 (o)

(561) 616-3266 (fax)

Email: [email protected]

Attorneys for Plaintiffs-Appellants


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Wexler et al. v. Lepore et al. CaseNo. 04-16280

ROBERT WEXLER, Congressman

ADDIE GREENE, Commissioner,

BURT AARONSON, Commissioner,

TONY FRANSETTA,

PLAINTIFFS-APPELLANTS,

v.

THERESA LEPORE, Supervisor of Elections for Palm Beach County,

Florida,

KAY CLEM, Supervisor of Elections for Indian River County, Florida and

President of the Florida Association of Supervisors of Elections,

GLENDA E. HOOD, Secretary of Stateof Florida,

DEFENDANTS-APPELLEES.

_____________________________________________________________

CERTIFICATEOFINTERESTEDPERSONSANDCORPORATE

DISCLOSURESTATEMENT

The undersigned counsel of record certifies that the following listed persons

have an interest in the outcome of this case:

1. Commissioner Burt Aaronson

2. Office of the Attorney General, Attorneys for Defendant-Appellee

Hood

3. Center for Constitutional Litigation, P.C., Attorneys for Plaintiffs-

Appellants

4. Supervisor Kay Clem

5. Honorable United States District Court Judge James I. Cohn

6. Tony Fransetta, an individual

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Wexler et al. v. Lepore et al. CaseNo. 04-16280

7. Commissioner Addie Greene

8. Secretary of State Glenda E. Hood

9. Paul C. Huck, Jr., Attorney for Defendant-Appellee Hood

10. Chris Kise, Attorney for Defendant-Appellee Hood

11. Ronald Labasky, Attorney for Defendants-Appellees LePore and

Clem

12. Landers & Parsons, P.A., Attorneys for LePore and Clem

13. Supervisor Theresa LePore

14. Liggio, Benrubi & Williams, P.A., Attorneys for Plaintiffs-Appellants

15. Jeffrey M. Liggio, Attorney for Plaintiff-Appellants

16. Robert S. Peck, Attorney for Plaintiffs-Appellants

17. James A. Peters, Attorney for Defendant-Appellee Hood

18. George Waas, Attorney for Defendant-Appellee Hood

19. Congressman Robert Wexler

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REQUEST FOR ORAL ARGUMENT

Pursuant to Eleventh Circuit Rule 28-1(c), Plaintiffs-Appellants request oral

argument. This case presents an issue of great importance involving whether

Floridas treatment of state-required manual recounts in public elections, which

differs from county-to-county on the basis of voting equipment used, violates

voters federal rights under the Equal Protection and Due Process Clauses of the

United States Constitution.

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TABLE OF CONTENTS

CERTIFICATEOFINTERESTEDPERSONSANDCORPORATE

DISCLOSURESTATEMENT ..............................................................................C-1

REQUEST FOR ORAL ARGUMENT..................................................................... i

TABLE OF CONTENTS.......................................................................................... ii

STATEMENT OF JURISDICTION....................................................................... vii

STATEMENT OF THE ISSUES...............................................................................1

STATEMENT OF THE CASE..................................................................................1

A. Course of Proceedings...........................................................................1

B. Statement of Facts. ................................................................................3

C. Statement of the Standard or Scope of Review.....................................5

SUMMARY OF THE ARGUMENT ........................................................................5

ARGUMENT.............................................................................................................6

I. FLORIDA LAW MANDATES A MANUAL RECOUNT,

WHICH CAN NEITHER BE DISPENSED WITH NORREPLACED WITH A MACHINE RECOUNT...................................6

II. CURRENT FLORIDA LAW FOREGOING MANUAL

RECOUNTS FOR BALLOTING USING TOUCHSCREEN

VOTING MECHANISMS VIOLATES EQUAL

PROTECTION, AS WOULD A RULE COUNTING ONLY

BALLOT SUMMARIES FOR THAT EQUIPMENT........................12

A. Strict Scrutiny Applies to Evaluate Whether Equal

Protection is Denied..................................................................12

C. Counting Ballot Image Summaries Would Not

Remedy the Equal Protection Violation ...................................22

D. The Emergency Rule Approach Also Contained an

Unconstitutional Time Limitation ............................................27

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III. THE INABILITY TO EFFECTUATE A MEANINGFUL

STATEWIDE MANUAL RECOUNT VIOLATES

PLAINTIFFS DUE PROCESS RIGHTS ..........................................28

CONCLUSION........................................................................................................32

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

ADDENDUM

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TABLE OF CITATIONS

Cases

ACLU v. Department of State, Case No. 04-2341RX (Aug. 27, 2004).. 4, 10, 19, 22

American Association of People with Disabilities v. Shelley, 324

F.Supp.2d 1120 (C.D. Cal. 2004) ........................................................... 11, 25

Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691 (1962) ..................................................14

Black v. McGuffrage, 209 F.Supp.2d 889 (N.D. Ill. 2002) ................................ 5, 17

Burdick v. Takushi, 504 U.S. 428, 112 S.Ct. 2059 (1992) ......................... 12, 13, 14

Bush v. Gore, 531 U.S. 98, 121 S.Ct. 525 (2000)............................................passim

Florida Democratic Party v. Hood, 884 So.2d 1148 (Fla. 1st

DCA), rev.

denied, 888 So.2d 622 (Fla. 2004).................................................................12

Georgia Manufactured Hous. Assn, Inc. v. Spalding County, 148 F.3d

1304 (11th Cir. 1998) ......................................................................................5

Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801 (1963)...............................................13

Hall v. Holder, 117 F.3d 1222 (11th Cir.1997) .......................................................13

Hendon v. North Carolina Board of Elections, 633 F.Supp. 454

(W.D.N.C. 1986) ...........................................................................................21

Hendon v. North Carolina State Board of Elections, 710 F.2d 177 (4th

Cir. 1983).......................................................................................................21

Hennings v. Grafton, 523 F.2d 861 (7th

Cir. 1975)..................................................29

Illinois Bd. of Elections v. Socialist Workers Party, 440 U.S. 173 (1979)..............30

Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123 (1951) ....................28

Mathews v. Eldridge, 424 U.S. 319 (1976) ................................................ 29, 30, 31

Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362 (1964)..................................... 14, 20

Roe v. Alabama, 68 F.3d 404 (11th

Cir. 1995)............................................ 16, 29, 30

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Roudebush v. Hartke, 405 U.S. 15, 92 S.Ct. 804 (1972).........................................15

Sable Communication of California v. FCC, 492 U.S. 115 (1989).........................22

Twining v. New Jersey, 211 U.S. 78 (1908) ............................................................28

United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031 (1941) ................................14

United States v. Mosely, 238 U.S. 383, 35 S.Ct. 904 (1915)...................................20

United States v. Saylor, 322 U.S. 385, 64 S.Ct. 1101 (1944)..................................20

Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526 (1964)............................................13

Wexler v. Lepore, 342 F.Supp.2d 1097 (S.D. Fla. 2004).................................passim

Wexler v. LePore, 385 F.3d 1336 (11th Cir. 2004) ...................................................2

Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064 (1886) .................................. 13, 30

Constitutional Provisions

U.S.CONST. amend XIV..................................................................................passim

Statutes

Fla. Admin. Code 1S-2.031 ................................................................................ 7, 10

Fla. Stat. 101.015 ................................................................................................3, 8

Fla. Stat. 101.294 ....................................................................................................8

Fla. Stat. 101.5604 ..................................................................................................8

Fla. Stat. 101.5605 ..................................................................................................8

Fla. Stat. 102.141 ................................................................................................6, 7

Fla. Stat. 102.166 ................................................................................................6, 7

Help America Vote Act (HAVA) of 2002, 42 U.S.C. 15301 et seq......................22

Other Authorities

AM.HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (4th

ed. 2000).................27

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Issacharoff, Samuel, Groups and the Right to Vote,44 EMORY L.J. 869

(1995).............................................................................................................16

PIERCE,JR.,RICHARD J.,ADMINISTRATIVE LAW TREATISE (4th

ed. 2002) ...............28

Rules

Rule 1SER04-1 ............................................................................................. 2, 11, 12

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TO THE HONORABLE UNITED STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT:

STATEMENT OF JURISDICTION

The District Court had jurisdiction over this action under 28 U.S.C. 1331,

28 U.S.C. 1343, and 42 U.S.C. 1983. Venue was proper in the United States

District Court for the Southern District of Florida, Fort Lauderdale Division,

pursuant to 28 U.S.C. 1391(b).

This is an appeal from a final judgment, issued on October 25, 2004. A

motion for reconsideration was denied as moot on November 19, 2004. Plaintiffs

filed timely Notice of Appeal on November 24, 2004. This Court has jurisdiction

over the appeal pursuant to 28 U.S.C. 1291.

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STATEMENT OF THE ISSUES

1. Consistent with the Equal Protection Clause of the Fourteenth

Amendment to the U.S. Constitution, may a State that mandates a manual recount

in certain extremely close public election contests forego that recount or rely upon

machine-generated ballot summaries for voters who use touchscreen voting

equipment, while other voters are entitled to have the paper records of their

individual ballots recounted by hand?

2. Consistent with the Due Process Clause of the Fourteenth Amendment to

the U.S. Constitution, may a State that mandates a manual recount in certain

extremely close public election contests forego utilizing some form of

individualized verification to conduct that recount for voters who use touchscreen

voting equipment and instead utilize machine-generated ballot summaries, while

other voters are entitled to have the paper records of their individual ballots

recounted by hand?

STATEMENT OF THE CASE

A. Course of Proceedings.

Plaintiffs, officeholders, candidates for electoral office, and voters, filed this

action for declaratory and injunctive relief on March 8, 2004, alleging that the

Defendants in certifying, approving, and implementing the use of touchscreen

paperless voting systems in fifteen Florida counties created a nonuniform,

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differential standard from the systems used in fifty-two other Florida counties, in

violation of the Equal Protection and Due Process Clauses of the U.S. Constitution.

On May 24, 2004, the District Court granted Defendant Secretary of State

Glenda E. Hoods motion to abstain on the basis that one plaintiff, Robert Wexler,

had previously filed a state constitutional challenge in state court. On September

27, 2004, this Court reversed and vacated the District Courts order. Wexler v.

LePore, 385 F.3d 1336 (11th Cir. 2004). After denying Defendants motion for

reconsideration en banc, the Eleventh Circuit issued its mandate on October 7,

2004.

Trial was scheduled to begin Monday, October 18, 2004. On the eve of trial,

specifically on Friday, October 15, 2004, at 4:08 p.m., Defendant Hood issued an

emergency rule, revising its position from a no manual recount rule for

touchscreen machines to a recount consisting of machine-generated ballot image

summaries for that equipment. At the commencement of trial, District Court Judge

James Cohn ruled that the case would now proceed as a challenge to the

emergency rule. The case was tried over a three-day period and resulted in final

judgment for the Defendants. Because of an emergency petition filed before the

Florida Supreme Court in a different matter that could have affected interpretation

of relevant state law, Plaintiffs filed a motion for reconsideration, which was

denied as moot on November 19, 2004.

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Notice of appeal was timely filed on November 24, 2004.

B. Statement of Facts.

In the aftermath of the controversy surrounding the 2000 presidential

election, Florida endeavored to upgrade the voting systems utilized throughout the

state. As Secretary of State, Defendant Hood, pursuant to Fla. Stat. 101.015, had

responsibility for adopting minimum standards for new voting machines and to

update certification standards on a continuous basis. Hood also had responsibility

for approving or disapproving each voting system. The same state statute requires

county elections supervisors, such as Defendants Teresa LePore and Kay Clem, to

establish written procedures to assure the accuracy and security of the adopted

voting systems.

Fifteen Florida counties opted to purchase touchscreen, or direct recording

electronic (DRE), voting equipment, incapable of producing paper records of each

cast ballot. Fifty-two Florida counties purchased optical-scan, or marksense,

equipment, that retains paper ballots for use in a manual recount. Wexler v.

Lepore, 342 F.Supp.2d 1097, 1099 (S.D. Fla. 2004). Absentee voters, and voters

who utilize provisional ballots in DRE counties vote on marksense equipment. R4-

129-38. On February 12, 2004, the Division of Elections issued Opinion DE 04-

02, declaring that no manual recounts would be conducted for the DREs because

the machines produce nothing worth counting.

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On March 8, 2004, four Plaintiffs instituted this action, alleging that the

election officials determination that they would forego manual recounts for those

voters whose ballots were cast on DREs violated the Fourteenth Amendments

Equal Protection and Due Process guarantees. Three of them are voters and

elected officials, who were seeking reelection at the time: U.S. Representative

Wexler and Palm Beach County Commissioners Addie Greene and Burt Aaronson.

The fourth plaintiff, Tony Fransetta, is a registered voter, who has voted in past

elections and intended to vote in the 2004 and subsequent elections.

While the case was pending, the Florida Division of Administrative

Hearings ruled on August 27, 2004, that the no-recount rule for DREs promulgated

by Defendant Hood violated state law. ACLU v. Department of State, Case No.

04-2341RX (Aug. 27, 2004)1. No appeal was taken from that ruling.

Subsequently, at 4:08 p.m. on Friday, October 15, 2004, before the trial in this case

that was to commence on Monday, October 18, 2004, Defendant Hood

promulgated an emergency rule that provided for the counting of machine-

generated ballot summary images in the event of a manual recount.

1Attached as Addendum A.

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C. Statement of the Standard or Scope of Review.

The District Courts findings of fact are reviewed for clear error and its legal

conclusions are reviewed de novo. Georgia Manufactured Hous. Assn, Inc. v.

Spalding County, 148 F.3d 1304, 1307 (11th Cir. 1998).

SUMMARY OF THE ARGUMENT

In extremely close public election contests, Florida law mandates that a

manual recount be conducted. Although responsibility for certifying voting

equipment capable of fulfilling all the requirements of Florida law falls to

Defendant Secretary of State, her office did not make the capacity to conduct a

manual recount a requirement for approval of equipment. Fifteen of Floridas 67

counties purchased approved voting equipment that does not allow a canvassing

board to examine individual ballots to determine whether the voter has made a

definite choice, as mandated by the state recount statute. The resulting disparate

treatment of votes subject to manual recount, which differs geographically based

on the voting equipment used, violates equal protection and due process, because

ballots do not receive equal treatment and because the requirement of fundamental

fairness is not observed. Contrary to the holding of the District Court, equal

protection does not guarantee that all voters using the same equipment be treated

the same, but that all voters participating in the same election be treated the same.

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ARGUMENT

I. FLORIDA LAW MANDATES A MANUAL RECOUNT, WHICH CAN

NEITHER BE DISPENSED WITH NOR REPLACED WITH A

MACHINE RECOUNT

Floridas election recount law is the appropriate starting point to understand

whether existing procedures amount to the type of arbitrary and disparate treatment

that gives rise to a constitutional violation. In the aftermath of the controversy

surrounding the counting and recounting of ballots during the 2000 presidential

election, the state legislature enacted new recount laws, which provide that when

the margin of difference between the candidates is one-half of one percent or less,

a machine recount shall take place. Fla. Stat. 102.141(6). Understanding that

all voting mechanisms can be subject to error in recording votes, an understanding

confirmed by every expert witness who testified at trial, R5-130-482, R5-130-483;

R5-130-267, R5-130-268; R4-129-165 through R4-129-169;2 the Legislature

mandated a manual recount of the overvotes and undervotes cast in the entire

geographic jurisdiction of such office or ballot measure when the margin of

difference in the machine recount is one-quarter of one percent or less. Fla. Stat.

102.166(1). The statute also permits a candidate to demand and receive a manual

2Defendants Chief of the Bureau of Voting System Certification, Paul Craft,

indicated that in two instances machines were certified by the Department of State

but subsequently found to have bad source code, causing tabulation problems.

Craft, R5-130-493, R5-130-494.

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recount when the machine recount margin falls between one-quarter and one-half

of a percent. Fla. Stat. 102.166(2)(a). While machine recounts are conducted by

rerunning the tabulations of the existing voting equipment or examining the

counters for machines that do not use paper ballots, Fla. Stat. 102.141(6)(b),

manual recounts require observations of individual ballots by the canvassing board

to determine if there is a clear indication on the ballot that the voter has made a

definite choice. Fla. Stat. 102.141(6)(a). See also Opinion DE 04-02. Thus, the

legislative scheme evinces a distrust of a mere machine recount in the most closely

contested elections.

Recounts focus on overvotes and undervotes. Fla. Stat. 102.166(1).

Overvotes occur when the voting system determines that the voter has cast more

votes than permitted in a particular race, Fla. Stat. 97.021(21), while undervotes

occur when the voter improperly does not designate a choice or the voting system

finds that the voter has cast no vote in a particular race, notwithstanding the voters

intent to vote. Fla. Admin. Code 1S-2.031(4).

State law also tasks the Department of State with responsibility to adopt

specific rules for each certified voting system prescribing what constitutes a clear

indication on the ballot that the voter has made a definite choice, and which

shall be uniform to the extent practicable. Fla. Stat. 102.166(5)(b) & (6)(d).

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In addition, the Department has responsibility for adopting minimum

standards for voting systems. Fla. Stat. 101.015. Based on compliance with

those standards, the Department has the authority to approve or disapprove any

voting system. Id.; Fla. Stat. 101.5605. The Department also tests and certifies

the equipment. R4-129-108; R4-129-109; R5-130-434, R5-130-492. Those tests

are designed to assure compliance with statutory requirements, as well as accuracy.

R4-129-108, R4-129-109; R5-130-434. However, the Department has chosen not

to include in its certification criteria any evaluation of a mechanisms capacity to

comply with the manual recount statute. R4-129-108; R4-129-109.

Each board of county commissioners chooses its own voting equipment

from among those mechanisms certified by the Department. Fla. Stat. 101.5604;

Fla. Stat. 101.294. Fifty-two of Floridas 67 counties opted for optical-scan, or

marksense, machines. 342 F.Supp.2d at 1099. To vote using this equipment, a

voter uses a pencil to fill in a bubble or arrow by the name of the selected

candidate on a sheet of paper. The paper is then scanned into the machine, which

tabulates the votes. The original marked paper sheets are preserved for use in any

necessary manual recount. R6-131-544 through R6-131-547. Optical scan

equipment has proven to be the voting mechanism with the least number of

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residual votes and is less expensive than a touchscreen voting machine. R6-131-

539 through R6-131-541.3

Fifteen counties opted for touchscreen voting mechanisms, also known as

direct recording electronic voting systems (DREs), 342 F.Supp.2d at 1099, that do

not produce individual paper records for manual recounts. R4-129-84. To vote

using this equipment, a voter literally touches the screen, which then records the

vote. 342 F.Supp.2d at 1100. These touchscreen voting systems are subject to

mechanical, electronic, and programmatic errors in their functioning. Counties that

opted for DREs still use optical-scan equipment to count provisional and absentee

ballots. R6-131-624, R6-131-627; R5-130-377. Thus, DRE counties have voters

casting ballots on both types of equipment, only some of which are capable of a

manual recount.

Pursuant to her obligation to promulgate a rule for manual recounts in

counties using DREs, Defendant Hoods elections division first issued an opinion

denying authorization to print or review the electronic ballot images of undervotes

occurring in a recounted race. DE 04-02, Division of Elections Opinion (Feb. 12,

3The Division of Elections reported more problems in the 2002 election with DRE

equipment producing overvotes and undervotes than optical scan equipment. R4-

129-84 through R4-129-126. After the 2004 election, the Division issued a similar

report, indicating improvement in DREs but fewer problems still with optical

scans. Fla. Dept of State, Div. of Elections,Analysis and Report for the 2004

General Election (Jan. 31, 2005) (Attached as Addendum B).

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2004). On April 13, 2004, Defendant Hood amended the rule governing recount

procedures as follows:

When a manual recount is ordered and touchscreen ballots are used,

no manual recount of undervotes and overvotes cast on a touchscreen

system shall be conducted since these machines do not allow a voter

to cast an overvote and since a review of undervotes cannot result in a

determination of voter intent as required by Section 102.166(5), F.S.

In this case, the results of the machine recount conducted pursuant to

paragraph (5)(c) shall be the official totals for the touchscreen ballots.

Fla. Admin. Code Rule 1S-2.031(7). This rule is currently in effect, even

though it was determined to be in violation of the requirements of Florida

law. ACLU, supra, at 31.

A machine recount is incapable of detecting whether an undervote is

intentional or the result of a failure of the machine to record a vote. A machine

recount is also insufficient, as a matter of law, as a substitute for a manual recount.

ACLU, supra, at 33 (If the legislature had intended that no manual recounts be

done in counties using voting systems which did not use paper ballots, it could

have easily done so.). Instead, Defendant Hoods department does not have the

authority to preclude manual recounts for a touchscreen voting system because it

does not believe that a manual recount will reveal a clear indication of the voter's

choice. Id. at 36.4

4At one point, 43 percent of California voters used DREs. After experiencing

problems in the testing and certification of software, reliability, accuracy, training,

and security, Californias Secretary of State decertified the systems. American

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On the eve of trial, Defendant Hood promulgated an emergency rule in

response to theACLUruling that provided a different type of machine recount for

DREs. That rule, which expired after 90 days, provided that a canvassing board

conducting a manual recount of a DRE shall order the printing of one official copy

of a ballot image summary for each touchscreen machine that has recorded

undervotes for a race. Rule 1SER04-1(7)(a). Such reports are cumulative and

merely indicate that the machine recorded no vote for that race by use of the word

undervote, a numeric coding, or the absence of an X on the report. 342

F.Supp.2d at 1103. They do not permit the canvassing board to determine whether

the voter made an intentional choice to undervote or that the machine failed to

record the vote due to voter mistake, human error, or system error. Indeed each

and every one of the voting officials who testified conceded as much. R4-129-62

through R4-129-75; R4-129-129 through R4-129-133; R4-129-139; R4-129-140;

R5-130-401 through R5-130-405; R5-130-474 through R5-130-477; R6-131-546

through R6-131-552; R6-131-608; R6-131-628; R6-131-629; R6-131-648 through

R6-131-658. Instead, if this manual recount matches the machine report of the

Association of People with Disabilities v. Shelley, 324 F.Supp.2d 1120, 1124 (C.D.

Cal. 2004). A primary reason for that decertification was that DREs not outfitted

with a voter-verified paper trail do not permit meaningful recounts. Id. at 1128.

The same conclusion that DREs without paper trails do not permit a meaningful

recount should obtain here as well.

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number of undervotes, the results are certified as a final official tally. Rule

1SER04-1(7)(f).5

II. CURRENT FLORIDA LAW FOREGOING MANUAL RECOUNTS

FOR BALLOTING USING TOUCHSCREEN VOTING

MECHANISMS VIOLATES EQUAL PROTECTION, AS WOULD A

RULE COUNTING ONLY BALLOT SUMMARIES FOR THAT

EQUIPMENT

A. Strict Scrutiny Applies to Evaluate Whether Equal Protection is

Denied

The Supreme Court has instructed that:

A court considering a challenge to a state election law must weigh

the character and magnitude of the asserted injury to the rights

protected by the First and Fourteenth Amendments that the plaintiff

seeks to vindicate against the precise interests put forward by the

State as justifications for the burden imposed by its rule, taking into

consideration the extent to which those interests make it necessary to

burden the plaintiff's rights.

Burdick v. Takushi, 504 U.S. 428, 434, 112 S.Ct. 2059, 2065 (1992) (citations

omitted).

A severe restriction on a plaintiffs voting rights is subjected to strict

scrutiny and must be narrowly drawn to advance a state interest of compelling

5

Among the reasons the Defendant gave for promulgating the emergency rule was[a]d hoc, ex-post manual recount processes of touchscreen voting systems

conducted on a county-by-county basis, reminiscent of the circumstances giving

rise to the intensely litigated 2000 General Election, may violate the equal

protection and due process clause[s] of the U.S. Constitution. Quoted in Florida

Democratic Party v. Hood, 884 So.2d 1148, 1150 (Fla. 1st

DCA), rev. denied, 888

So.2d 622 (Fla. 2004).

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importance. Id. (citation omitted). If the law merely imposes reasonable,

nondiscriminatory restrictions, the States important regulatory interests are

generally sufficient to uphold the law. Id. (citation omitted). Floridas recount

procedures, which utilize an individualized recount by hand for those ballots cast

on optical-scan equipment but entirely forego that scrutiny of those cast on DREs,

cannot be considered nondiscriminatory. Voters in DRE counties have no chance

of having a residual vote counted in an election where it could make a difference,

while other voters do. That discriminatory treatment requires strict scrutiny.

To be sure, voting holds an exalted place in the pantheon of constitutional

values as a fundamental political right, because [it is] preservative of all rights.

Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S.Ct. 1064, 1071 (1886). In fact, [n]o

right is more precious in a free country than that of having a voice in the election

of those who make the laws under which, as good citizens, we must live.

Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 535 (1964). See also Hall v.

Holder, 117 F.3d 1222, 1231 (11th Cir.1997)(voting is a right of paramount

constitutional significance).

Thus, all qualified voters have a constitutionally protected right to cast

their ballots and have them counted. . . . Every voters vote is entitled to be

counted once. It must be correctly counted and reported. Gray v. Sanders, 372

U.S. 368, 380, 83 S.Ct. 801, 808 (1963)(citation omitted). See also Reynolds v.

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Sims, 377 U.S. 533, 554, 84 S.Ct. 1362, 1378 (1964);Baker v. Carr, 369 U.S. 186,

208, 82 S.Ct. 691, 705 (1962), citing United States v. Classic, 313 U.S. 299, 61

S.Ct. 1031 (1941)(recognizing that the right to vote is infringed by a false tally).

When the voting mechanism fails to count a vote and the election hinges on

a tally of those votes, the continued failure to count that vote, as occurs under

Defendants system, constitutes an injury of enormous magnitude namely,

disenfranchisement for which there can be no justification. See Reynolds, 377

U.S. at 563, 84 S.Ct. at 1382 (Weighting the votes of citizens differently, by any

method or means, merely because of where they happen to reside, hardly seems

justifiable.). Equally established by virtue of the alternative technologies

available to Defendants to preserve those rights while advancing the States

interest in fair and honest elections,6

there is no need to burden Plaintiffs rights.

It is apparent, then, that weighing theBurdickfactors for the appropriate

constitutional balance between the voters interests, the States legitimate interests,

and the availability of means that accommodates both interests without unduly

burdening the voters rights that the scale tips decisively in favor of Plaintiffs.

While every election dispute does not require strict scrutiny, theSupreme

Court has made clear that recount mechanisms . . . [must] satisfy the minimum

6See R4-129-170 through R4-129-200; R5-130-329 through R5 130-337; R5-130-

350 through R5-130-359.

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Issacharoff, Groups and the Right to Vote,44 EMORY L.J. 869, 883 (1995). Thus,

inRoe v. Alabama, 68 F.3d 404 (11th

Cir. 1995), this Court recognized that unequal

criteria for counting ballots implicated fundamental fairness by diluting the votes

of some voters while disenfranchising others.

InBush, a similar constitutional violation was identified. Two categories of

voters had their ballots denigrated: voters whose ballots were excluded from the

recount order by the Florida Supreme Court and those whose ballots were tallied

before the recount began. Both were considered harmed because their votes were

devalued by the nature of the recount process instituted. Bush, 531 U.S. at 107-08,

121 S.Ct. at 531. The Court found that recount process was not well calculated to

sustain the confidence that all citizens must have in the outcome of elections. Id.

at 109, 121 S.Ct. at 532.

Bush thus establishes that a state entity with the power to assure uniformity

in a statewide recount cannot allow differing standards to prevail without some

assurance that the rudimentary requirements of equal protection and fundamental

fairness are met. It further holds that rules, such as those promulgated by

Defendant Hood, must be designed to ensure uniform treatment. Id. at 106, 121

S.Ct. at 530. A rule that examines some voters ballots for a manual recount and

not others due to the voting equipment utilized or the fortuity of geography

does not constitute uniform treatment. See id. at 107-08, 121 S.Ct. at 531.

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The situation today eerily mirrors the one examined inBush:

the citizen whose ballot was not read by a machine because he failed

to vote for a candidate in a way readable by a machine may still have

his vote counted in a manual recount; on the other hand, the citizen

who marks two candidates in a way discernible by the machine will

not have the same opportunity to have his vote count, even if a manual

examination of the ballot would reveal the requisite indicia of intent.

Id. at 108, 121 S.Ct. at 531.

The same lack of uniformity compelled the court inBlack v. McGuffrage,

209 F.Supp.2d 889, 899 (N.D. Ill. 2002), to find an equal protection violation

when people in different counties have significantly different probabilities of

having their votes counted, solely because of the nature of the [voting] system used

in their jurisdiction. As the court further stated:

the case at bar is not one of an accidental malfunction or unforeseen

error in counting or failing to count a particular group of ballots . . .

but rather a statutory scheme which, depending upon the choices

made by local election jurisdiction officials, will necessarily result in

the dilution of an entire group of citizens right to vote. . . . the votes

cast in some districts will have a significantly greater chance of being

counted than the votes cast in neighboring election districts. . . . Such

a situation does rise to the level of a constitutional violation.

Id. at 901.

The disparate treatment of recounts based on voting mechanisms adopted by

the Defendants here also violates this principle. A ballot that would be recounted

in one county will not be recounted in a neighboring county, simply because of the

equipment used. Even within a county, voters using DREs will not have their

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votes recounted, while their neighbors who voted by absentee or provisional ballot

will. Although the voting mechanisms adopted need not be identical throughout

the state, the capacity to facilitate a manual recount must be common to all the

voting methods. See Bush, 531 U.S. at 109, 121 S.Ct. at 532. There must be an

assurance that the recounts included in a final certification are complete. Id.at

108, 121 S.Ct. at 532.

The need for a recount capability in elections utilizing paperless touch

screen voting machines is underscored by recent experiences in Wellington Village

and Legislative District 91, where the number of undervotes vastly outnumbered

the margin of victory. R6-131-626 through R6-131-636. In Wellington Village in

2002, the margin of victory for a council race was four votes, while 78 ballots were

deemed undervotes. In January 2004 special election District 91 race, with no

other office on the ballot, it is impossible to conceive that 134 people went to the

polling place, waited in line, signed in, stepped up to the voting machine, and

chose to vote for no candidate in an election decided by 12 votes. In both

instances, because paperless DREs were used, no statutorily mandated recount

could take place. R6-131-626 through R6-131-629 and R4-129-215; Exhibit 179.

B. The District Court Erred in Finding that Equal Protection

Applied to Voting Systems, Rather than Voters

The flaw in the District Courts analysis is apparent from how it framed the

issue. The court said it must decide if the rule creates a uniform, nondifferential

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standard for conducting a manual recount in the fifteen counties using certified

touchscreen machines, 342 F.Supp.2d at 1105 (footnote omitted), rather than

statewide. Relying on Justice Souters dissent inBush, the court characterized the

equal protection problem discussed in that case as involving disparate rules . . .

applied to determine voter intent on identical types of ballots used in identical

brands of machines and exhibiting identical physical characteristics. Id. at 1107,

quoting Bush, 531 U.S. at 134, 121 S.Ct. at 545 (Souter, J., dissenting). The court

then found conformity with the requirements ofBush because the standards

utilized in recounts are uniform for each certified voting system. Id. at 1108. One

reason the court found this sufficient is because it mystifyingly determined that the

possibility that a system might malfunction was not before the court. Id. at 1108

n.16. Yet, without a potential to malfunction, which all witnesses agreed occurs,

there would be no need for a manual recount, which the legislature has insisted

take place even with DREs.7

Moreover, because Plaintiffs Complaint did not

anticipate that an 11th

hour emergency rule would change the lawsuits focus, that

allegation was deemed unnecessary, yet is still covered in Complaint 20, 24, 25

and 37.

7InACLU, the hearing officer noted that the legislature had declined to enact an

exemption from manual recounts for DREs. ACLU, supra, at 33.

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Further, the Court found that a voter who casts his or her vote on a DRE has

made a definite decision to undervote, so that the machines recording of an

undervote requires no further inquiry. That finding is contrary to the testimony of

every relevant witness, including Sarah Jane Bradshaw, Defendant Hoods

assistant director of elections, the highest official defendants were willing to make

available for testimony in this case. R4-129-62 through R4-129-74; R4-129-129

through R4-129-133; R4-129-139; R4-129-140; R5-130-401 through R5-130-405;

R5-130-474 through R5-130-477; R6-131-546 through R6-131-552; R6-131-608;

R6-131-609; R6-131-628; R6-131-629; R6-131-648 through R6-131-658.

As argued earlier, the court misconceived the constitutional violation.

Officeholders represent people, not trees or acres,Reynolds, 377 U.S. at 562, 84

S.Ct. at 1382, and not voting equipment. Thus, the courts focus on uniformity of

treatment of equipment was misdirected. After all, [w]eighting the votes of

citizens differently, by any method or means, merely because of where they

happen to reside, hardly seems justifiable. Id. at 563, 84 S.Ct. at 1382. Simply

put, the Equal Protection Clause safeguards the rights of voters to have their valid

votes counted along with the valid votes of other voters participating in that

election. United States v. Saylor, 322 U.S. 385, 388-89, 64 S.Ct. 1101, 1103

(1944); United States v. Mosely, 238 U.S. 383, 35 S.Ct. 904 (1915).

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The court belows analysis was emphatically rejected by the Fourth Circuit

inHendon v. North Carolina State Board of Elections, 710 F.2d 177 (4th

Cir.

1983). There, the District Court also had rejected an equal protection challenge to

the use of different voting machines with different capacities to comply with legal

requirements because all voters in each precinctwere treated alike using the same

voting methods and counting rules. Id. at 180 (emphasis added). That ruling was

remarkably similar to the District Court here.

At issue inHendon were voting machines that did not permit voters to split

their tickets while largely voting for a single party, while other equipment

permitted vote splitting. The Fourth Circuit ruled that the Constitution protects

the right of qualified citizens to vote and to have the votes counted as cast,

necessitating review of any conditions placed on that right by strict scrutiny. Id.

The court acknowledged that a state may employ diverse methods of voting, but

stated that the state may not select methods that place a much more onerous

burden on some voters than others. Id. at 181. The decision found that voters

using certain equipment were unconstitutionally burdened in having their vote

counted as cast than voters using other equipment. Hendon v. North Carolina

Board of Elections, 633 F.Supp. 454 (W.D.N.C. 1986)(characterizing decision).

The inherent constitutional flaw here, like that examined inHendon, is that

some of the voting equipment certified and used by Defendants omits an essential

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capability that is necessary to comply with an integral part of the electoral process,

the mandatory manual recount.

The fact that Defendant Hoods attempt to forego manual recounts in

counties utilizing paperless touchscreen voting machines was deemed ultra vires in

ACLUfurther demonstrates that there is no rationale that can justify the situation

that is the gravamen of this action. Moreover, even if there were some compelling

reason that Plaintiffs have failed to imagine, the requirement of narrow tailoring

that is part of the strict-scrutiny test would have advised Defendants to select a

different machine, capable of providing a paper trail, in order to avoid abridging

the rights of Plaintiffs and others similarly situated.8 See, e.g., Sable

Communication of California v. FCC, 492 U.S. 115, 131 (1989).

C. Counting Ballot Image Summaries Would Not Remedy the Equal

Protection Violation

The emergency rule, which was in effect at the time of trial, would not ameliorate

the constitutional violation if it were adopted as a permanent rule for there remains

no ability to conduct a meaningful manual recount in the 15 counties utilizing

DREs. The rule instead contemplates the counting of machine-generated ballot

8At trial, Representative Robert Wexler testified that Congress made money

available precisely for this purpose in the Help America Vote Act (HAVA) of

2002, 42 U.S.C. 15301 et seq., which Defendant Hood had not applied for. R4-

129-216. HAVA requires that all voting systems produce a permanent paper

record for manual audits in federal elections by January 1, 2006. 42 U.S.C.

15481(a)(2)(B).

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image summaries. Those summaries do not reflect individual ballots, but merely

report the number of undervotes recorded by that particular DRE machine. There

remains no capability of discerning whether the voter made a definite choice.

At trial, Assistant Director of the Division of Elections Bradshaw was asked

if examining a ballot image summary would enable elections officials to tell if an

undervote was a mistake by the voter or an intentional choice. She answered:

A No, I dont believe it makes the distinction between a mistake

of the voter and the voters intent, no.

Q. And, maam, can you and I agree that that report also is not able

to tell us to distinguish whether there was an error of by the poll

workers, a software error, a firmware error, a hardware error, as

opposed to an intentional undervote by the voter?

A. I would say that you would not ever look at that voter image

report, the ballot image report to determine a malfunction for a

hardware or software error of the machine.

Q. Thats because it doesnt tell us; does it?

A. Well, the statutes dont tell you to look to that report for that.

Q. But the statutes do tell you to look to the report to try to

determine the intent of the voter; do they not?

A. Thats correct.

Mr. Liggio to Curt Browning:

Q. You and I agree therefore, that these documents do not allow a

Canvassing Board to distinguish between what you and I agree

was an intent, a choice, and an undervote thats in the system as

a result of some other cause; yes?

A. Yes.

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Q. And if the statute has not changed, please look at Florida

Statute 102.166 parenthesis five, close parenthesis.

Q. Does it not require the Canvassing Board, in reviewing the

undervotes, or the count, if there is clear indication that the

voter made a choice?

A. Yes.

R5-130-405. Mr. Liggio to Theresa LePore:

Q. Okay. Let me ask you a question. Last time when you and I

spoke we talked about the Senate Committee report as to the

definition of a recount; did we not?

A. I believe so.

Q. Do you agree with me that recount means to count again,

simply taking the count totals from each tabulator and adding

them together is not recounting the ballots, its recounting the

ballots summaries. Do you agree with that definition?

A. Yes.

Q. Do we have any way in this audit log to do a recount todetermine whether the voter made a definite choice as opposed

to some error somewhere, Im not talking hacking or fraud, an

error?

A. The audit log comes from the machine. It has information on

how each voter voted. Its a ballot image, if you will.

Q. And the audit log only shows whether a vote was recorded or

not?

A. Correct.

Q. Not whether there was a reason for a vote being failing to be

recorded, other than the voter didnt want to vote?

A. Right.

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Q. So with this audit trail, all we can do is confirm; yes?

A. Yes.

Q. Let me finish, Im sorry. All we can do now is confirm, the

initial count said there were fifty undervotes, and we printed outthis piece of paper internally and, yep, it was fifty undervotes,

thats all we can show now, right?

A. Okay.

Q. Do you agree with that?

A. Thats what the audit log says, yes.

Q. Thanks. And thats what the audit log says that was attached tothe emergency rule, that the Secretary of State promulgated 4

oclock this past Friday afternoon, correct?

A. I dont know what time they did it, but yes.

R6-131-657.

Ballot image summaries reflect what the machine recorded and provides no

indication of the choice made by the voter. Defendants expert Dr. Shamos

testified that there is no presumption that an undervote identified by a ballot image

summary reflects the voters intention or choice. He noted that DREs in California

were decertified by that states Secretary of State because they could not provide

meaningful recounts. R4-129-201; R4-129-202; R5-130-350.9

Elections assistant

director Sarah Jane Bradshaw could not tell why ballot image summaries, available

9The California Secretary of State decertified the DREs, after previously

defending them against a challenge, because they did not permit meaningful

recounts. See Shelley, 324 F. Supp.2d at 1128.

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since May 2004, were insufficient to reflect voter choice then, but was sufficient at

the time the emergency rule was promulgated. R4-129-66 through R4-129-74.

For that reason, Ms. Bradshaw could not tell what happened in the District 91

election. Curt Browning, the Pasco County Elections Director, testified that he had

felt the original no recount rule for DREs complied with Florida law because it

was impossible to recount undervotes that do not exist. R5-130-398.

Recounts of ballot image summaries would constitute a sham, providing no

meaningful manual recount to determine voter choice. The Secretarys own initial

rule agreed with that assessment, forbidding manual recounts on DREs configured

as certified by her office based on the utter uselessness of any printout that could

be conjured from the equipment. Opinion DE 04-02. It is difficult to imagine

and testimony at trial did not establish how those printouts suddenly became

meaningful for purposes of the 11th

hour emergency rule.

In evaluating the ballot-image summary approach, theBush decision

remains instructive:

A manual recount of all ballots identifies not only those ballots which

show no vote but also those which contain more than one, the so-

called overvotes. Neither category will be counted by the machine.

This is not a trivial concern. At oral argument, respondents estimatedthere are as many as 110,000 overvotes statewide. As a result, the

citizen whose ballot was not read by a machine because he failed to

vote for a candidate in a way readable by a machine may still have his

vote counted in a manual recount; on the other hand, the citizen who

marks two candidates in a way discernible by the machine will not

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have the same opportunity to have his vote count, even if a manual

examination of the ballot would reveal the requisite indicia of intent.

Bush, 531 U.S. at 107-08, 121 S.Ct. at 531.

That same nontrivial concern is apparent when using ballot-image

summaries, which merely reflect what the machine recorded. Yet, a manual

recount anticipates a human examination of the ballot to determine whether the

voter made a definite choice, something that the machine report cannot substitute

for. The plain meaning of manual indicates that it must be done by human

hands. AM.HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE, (4th

ed. 2000),

available atwww.bartleby.com/61/20/MOO92000.html. As a result, even when

ballot summary images are utilized, voters and candidates in DRE counties will

receive different treatment from similarly situated voters based on the

happenstance of the county or district in which those voters reside. Such different

treatment constitutes an arbitrary subversion of the electoral process that serves no

legitimate, let alone compelling, state interest and makes out a palpable violation

of the Fourteenth Amendments guarantee of Equal Protection of the Laws.

D. The Emergency Rule Approach Also Contained an

Unconstitutional Time Limitation

The Supreme Court identified one further equal protection problem that

was perpetuated by the 2000 Florida recount schemeBush, 531 U.S. at 108, 121

S.Ct. at 531, that is repeated in Defendant Hoods emergency rule. State law both

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then and the emergency rule now limits the time in which a recount may be

completed. Recounts completed in timely fashion are included, while those that

are not are dispensed with. See 1SER 04-1(7)(i). However, the Court said, the

press of time does not diminish the constitutional concern. A desire for speed is

not a general excuse for ignoring equal protection guarantees. Id., 121 S.Ct. at

532. Just as it could not be countenanced then, it may not now, because the system

established provides no assurance that the recounts included in a final certification

[is] complete. Id.

III. THE INABILITY TO EFFECTUATE A MEANINGFUL STATEWIDE

MANUAL RECOUNT VIOLATES PLAINTIFFS DUE PROCESS

RIGHTS

The Due Process Clause protect[s] the citizen in his private right, and

guard[s] him against the arbitrary action of government. Twining v. New Jersey,

211 U.S. 78, 101 (1908). It guarantees appropriate process and overrides those

processes that are sufficiently devoid of fundamental fairness. Joint Anti-Fascist

Refugee Comm. v. McGrath, 341 U.S. 123, 161 (1951)(Frankfurter, J., concurring).

As a result, the Due Process Clause stands as a bulwark against government

decisions that are erroneous, inconsistent, and subjective by assuring protection

against arbitrary government decisionmaking. RICHARD J.PIERCE,JR.,

ADMINISTRATIVE LAW TREATISE 579 (4th

ed. 2002).

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While federal courts do not generally involve themselves in garden variety

election disputes, enforceable due process rights attach to systemic issues that

involve patent and fundamental unfairness. Roe v. Alabama, 43 F.3d 574, 580

(11th

Cir. 1995). See also Hennings v. Grafton, 523 F.2d 861, 864-65 (7th

Cir.

1975)(due process is implicated when willful conduct . . . undermines the organic

process by which candidates are elected.). Such systemic unfairness exists in a

system chosen to fulfill statutoryrequirements but incapable of assuring that votes

are properly recounted as state law requires. See, e.g., Bush, 531 U.S. at 105, 121

S.Ct. at 530, (indicating that the Constitution guarantees nonarbitrary treatment of

voters in the use of recount mechanisms).

InMathews v. Eldridge, 424 U.S. 319, 335 (1976), the Supreme Court

articulated three distinct factors that ought to be considered in evaluating an

alleged due process violation: 1) whether the private interest affected by the

official action is within life, liberty and property; 2) whether there is a risk of an

erroneous deprivation of that interest through the procedures used, and the

probable value, if any, of additional or substitute procedural safeguards; and 3)

whether the government maintains an overriding interest that includes

consideration of the function involved and the fiscal and administrative burdens

that the additional or substitute procedural requisites would entail.

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All threeMathews considerations militate in favor of the Plaintiffs. The first

whether life, liberty or property is affected is undeniable. The right to vote is

of the most fundamental significance under our constitutional structure. Illinois

Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979). It is a

fundamental liberty. Yick Wo, supra. As such, when the election process reaches a

point of patent and fundamental unfairness, a violation of the due process clause

may be indicated and relief under 1983 therefore in order. Roe, 43 F.3d at 580.

The secondMathews consideration whether alternative procedures could

avoid the risk of an erroneous deprivation also favors the Plaintiffs position. In

a close election, the Florida Legislature has determined that the proper way to

assure a fair and honest election is by engaging in a manual recount. The paperless

DRE machines adopted in 15 counties are incapable of allowing such a recount.

As a result, voters whose ballot is wrongfully read not to record a vote will

erroneously be deprived of their right to vote because of the procedures authorized

by Defendants. Experience demonstrates that this occurrence is not merely

theoretical but real. R5-130-377. The testimony was overwhelming that additional

safeguards are imperative. Defendants expert, Dr. Shamos, testified to a system in

shambles, both at trial and before a congressional committee. R5-130-330; R5-

130-331. Dr. Shamos went on to agree that adding paper back-up to the machines

would be useful. R5-130-337. See also R4-129-159 through R4-129-200.

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Finally, the thirdMathews consideration, the governments interest, also

favors the Plaintiffs. The government shares with Plaintiffs an interest in honest

and fair elections with candidates and voters. There is no divergence of interest

between the two. Moreover, as evidenced by the decision to employ optical scan

equipment in the 52 other Florida counties, it is entirely possible to meet that

common interest without creating insuperable fiscal or administrative burdens by

adopting voting machines capable of complying with Floridas manual recount

requirement. In fact, optical scan equipment costs less than DREs. R6-131-540;

R6-131-541.

While Defendants may argue that there is no budget to purchase new

machines after having spent the allocated funds for the machines at issue here, that

mistake cannot justify the violation of Plaintiffs rights. If it did, then government

actors would always be immune from a challenge like this when they expend

limited funds on equipment inadequate to meet constitutional requirements. Such

a result would render Plaintiffs rights entirely voidable as a result of wrongful

choices by Defendants, which can just as easily be made by design as by

inadvertence.

Moreover, testimony established that Florida had not applied for available

federal funds to finance the purpose of better voting equipment, which will be

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CERTIFICATE OF SERVICE

I certify that on this date I caused a true and correct copy of the foregoing

BRIEF OF PLAINTIFFS-APPELLANTS, in both paper and electronic format, to

be served on the following individuals by depositing same with Federal Express,

using Standard Overnight Delivery and by email:

Honorable United States District Court Judge James I. Cohn

299 East Broward Boulevard, Room 206

Fort Lauderdale, Florida 33301

[email protected]

Paul C. Huck, Jr., Esquire*

Regional Deputy Attorney General

110 Southeast 6th

Street, 10th

Floor

Fort Lauderdale, FL 33301

James A. Peters, Esquire

Office of the Attorney General

400 S. Monroe Street

Tallahassee, FL 32399

[email protected]

George Waas, Esquire


PL-01 The Capitol

Tallahassee, FL 32399-1050

[email protected]

Christopher M. Kise, Solicitor General

Office of the Attorney GeneralPL-01 The Capitol

Tallahassee, FL 32399

[email protected]

Attorneys for Defendant-Appellee Hood
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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ADDENDUM

Page #

American Civil Liberties Union et al. v. Department of State, No. 04-

2341RX (Aug. 27, 2004) ...........................................................................A

Florida Department of State, Division of Elections,Analysis and Report of

Overvotes and Undervotes for the 2004 General Election .......................B


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STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AMERICAN CIVIL LIBERTIES UNION

OF FLORIDA, INC. (ACLU-FL);SOUTHWEST VOTER REGISTRATION

EDUCATION PROJECT (SVREP);

COMMON CAUSE FLORIDA (CCF);

FLORIDA SOUTHERN CHRISTIAN

LEADERSHIP CONFERENCE CHAPTER

(FSCLC); AND THE FLORIDA VOTERS

LEAGUE, INC. (FVL),

Petitioners,

and

PEOPLE FOR THE AMERICAN WAY

FOUNDATION,

Intervenor,

vs.

DEPARTMENT OF STATE,

Respondent.

)

))

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

Case No. 04-2341RX

FINAL ORDER

Pursuant to notice, a final hearing was held in this case

on July 27, 2004, in Tallahassee, Florida, before Susan B.

Kirkland, a designated Administrative Law Judge of the Division

of Administrative Hearings.

Addendum A


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2

APPEARANCES

For Petitioners: Benjamin R. Patterson, Esquire

Jerry G. Traynham, Esquire

Patterson & Traynham

315 Beard StreetPost Office Box 4289

Tallahassee, Florida 32315-4289

For Intervenor: Reginald J. Mitchell, Esquire

1550 Melvin Street

Tallahassee, Florida 32301

For Respondent: George L. Waas, Esquire


The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

Whether Florida Administrative Code Rule 1S-2.031(7) is an

invalid exercise of delegated legislative authority under

Subsection 120.56(3), Florida Statutes (2004).

PRELIMINARY STATEMENT

On July 6, 2004, Petitioners, the American Civil Liberties

Union of Florida, Inc. (ACLU-FL); Southwest Voter Registration

Education Project (SVREP); Common Cause Florida (CCF); Florida

Southern Christian Leadership Conference Chapter (FSCLC); and

The Florida Voters League, Inc. (FVL), filed, pursuant to

Subsection 120.56(3), Florida Statutes (2003), a Petition to

Determine the Invalidity of Rules challenging the validity of

Florida Administrative Code Rule 1S-2.031(7).

On July 9, 2004, Respondent, Department of State, filed an

unopposed Request for Official Recognition, requesting


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3

that official recognition be taken of the following:

(1) Subsections 97.021(3), 101.5603(4), 101.5603(5),

and 101.5612, Florida Statutes (2003) (Exhibit A); (2) Order

Granting Defendants' Motions to Dismiss in Wexler v. LePore,

319 F. Supp. 2d 1354 (S.D. Fla. 2004) (Exhibit B); (3) Order

Granting Defendants [sic] Motion to Dismiss and Determining

Motion for Change of Venue Moot in Wexler v. LePore,

No. 502004CA 000491XXXXMB AA (Fla. 15th Cir. Ct. Feb. 11, 2004)

(Exhibit C); and (4) DE 04-02, Division of Elections Opinion

issued February 12, 2004 (Exhibit D). On July 12, 2004,

Respondent filed Respondent's Second Request for Official

Recognition, requesting that official recognition be taken of

Review of Voting Irregularities of the 2000 Presidential

Election, Report Number 2001-201, Prepared for the Florida

Senate by the Commission on Ethics and Elections, March 2001

(Exhibit E). An Order Granting Official Recognition was entered

on July 26, 2004, granting Respondent's requests for official

recognition.

On July 21, 2004, People for the American Way Foundation

(PFAWF) filed a Petition for Leave to Intervene. The petition

was heard by telephonic conference call on July 26, 2004, and an

Order Granting Petition to Intervene was entered on the same

date.


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4

The parties filed a Prehearing Stipulation on July 27,

2004, and stipulated to certain facts contained in Section E of

the Prehearing Stipulation. Those facts have been incorporated

in this Final Order.

At the final hearing, Petitioners presented the following

witnesses: Howard L. Simon, Benjamin T. Wilcox, Reverend S. L.

Phillips, and John Seibel. Petitioners' Exhibits A through C

were admitted in evidence. Intervenor presented Sharon Lettman

as its witness. Intervenor did not submit any exhibits in

evidence. Respondent called Sarah Jane Bradshaw and Paul Craft

as its witnesses. Respondent's Exhibit F was admitted in

evidence.

The parties agreed to file their proposed final orders

within ten days of the filing of the transcript. On August 5,

2004, the one-volume Transcript was filed. On August 12, 2004,

Petitioners filed an Unopposed Request for Enlargement of Filing

Period requesting additional time to file the proposed final

orders. On August 13, 2004, an order was entered extending the

time for filing the proposed final orders to August 18, 2004.

The parties timely filed their proposed final orders, which have

been considered in rendering this Final Order.

On August 25, 2004, Petitioner SVREP filed a Notice of

Voluntary Dismissal of SVREP, stating that SVREP had been unable

to appear at the hearing to provide evidence of its standing.


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FINDINGS OF FACT

1. Petitioner ACLU-FL is a public interest organization

with approximately 22,000 members in Florida. The great

majority of the ACLU-FL members are registered Florida voters.

ACLU-FL has an interest in advancing civil liberty principles,

including fair, accurate, and reliable electoral processes.

2. As part of its activities, ACLU-FL is involved in

litigation concerning voting issues. Following the 2000

presidential election, ACLU-FL filed an amicus curiae brief in

Bush v. Gore. In Siegel v. LePore, ACLU-FL intervened,

challenging the butterfly ballot. More recently, ACLU-FL filed

an amicus curiae brief in litigation filed by Congressman Wexler

concerning the manual recount of votes cast on touchscreen

voting systems. In Florida Caucus of Black State Legislators,

Inc. v. Crosby, __ So. 2d __, 29 Fla. L. Weekly D1629 (Fla. 1st

DCA July 14, 2004), ACLU-FL was successful in getting a writ of

mandamus issued against the Department of Corrections to require

the Department to provide to offenders, prior to their

discharge, an application form and other forms necessary to

obtain the Governor's review for restoration of their civil

rights and to advise the offenders that the Department will

assist in the preparation of the forms at the offenders'

request.


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3. ACLU-FL attempts to advance confidence in the voting

system and the electoral process. The organization strives to

ensure that the voting systems used in Florida are accurate,

reliable, and capable of providing for recounts and audits.

4. CCF is a government reform advocacy group with a basic

interest in good government, including issues such as campaign

finance reform, ethics, reapportionment, and election reform.

Its members believe that each voter's ballot should be counted

as cast and it is important to be able to verify one's vote and

have a record of each vote as cast. CCF has approximately

90,000 members in Florida.

5. FSCLC is an organization founded by the late Dr. Martin

Luther King, Jr.; Ralph Abernathy; and Reverend C. K. Steele.

This organization has an interest in election issues and was

instrumental in the passage of the Voting Rights Act in the

1960's. It is concerned with having the vote of each voter

counted as cast.

6. PFAWF is a civil rights and civil liberties

organization, which promotes constitutional rights and the value

of the vote. It has numerous voter registration projects,

including the Election Protection Project, which came about as a

result of the 2000 presidential election. The Election

Protection Project in Florida involves educating citizens on


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their rights, the process of voting, and their legal recourse in

the event of election irregularities.

7. No evidence was presented concerning the standing of

the FVL to bring this rule challenge.

8. After the 2000 presidential election, the Committee on

Ethics and Elections prepared a report for the Florida Senate

entitled Review of the Voting Irregularities of the 2000

Presidential Election (the Report). Among other things, the

Report generally discussed the types of voting systems,

including the Direct Recording Electronic (DRE) systems and the

optical scan systems. At the time of the Report, the DRE

systems, sometimes called touchscreen systems, were not used in

Florida.

9. In the optical scan systems, the voter marks a paper

ballot, which is fed into an optical scanning device which

"reads" the ballot and tabulates the results. The paper ballot

is preserved. In a DRE system, the voter indicates his or her

choice by the use of a touchscreen, pushbuttons, or similar

devices, rather than a paper ballot. The Report indicated that

most of the DRE systems do no offer a paper trail as backup for

the vote cast. The evidence presented at the final hearing

established that there are DRE systems which can provide a paper

trail by printing a picture of the screen as it appears to the

voter when the voter indicates that his voting is completed or


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by storing the screen image on microfilm. However, the DRE

systems currently certified by Respondent for use in Florida do

not provide a paper trail.

10. It is clear from the evidence at the final hearing,

that the DRE systems do not allow for an overvote. An overvote

occurs when a voter designates more names than there are persons

to be elected to an office or designates more than one answer to

a ballot question. 97.021(20), Fla. Stat. (2004). DRE

systems either require the voter to unselect a previously

designated candidate before voting for another candidate or

automatically default to the last candidate selected.

11. There can be an undervote using the DRE systems. An

undervote occurs when a voter does not properly designate any

choice for an office or a ballot question. 97.021(33), Fla.

Stat. (2004). Respondent requires that the DRE systems it

certifies must provide a notification to the voter of an

undervote before the voter casts his or her ballot.

12. After the difficult experiences with the 2000

presidential election, the following 15 counties in Florida

switched to a touchscreen voting system: Broward, Charlotte,

Collier, Hillsborough, Indian River, Lake, Lee, Martin, Miami-

Dade, Nassau, Palm Beach, Pasco, Pinellas, Sarasota, and Sumter.

The aggregate voting population of the above-listed counties

comprises slightly more than 50 percent of Florida's registered


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voters. Petitioners, ACLU-FL, CCF, and FSCLC, and Intervenor

PFAWF have members who are registered voters in all 15 counties

with touchscreen voting systems.

13. Respondent has the statutory responsibility to set the

minimum standards for the hardware and software for electronic

and electromechanical voting systems, which include touchscreen

voting systems. 101.015(1), Fla. Stat. (2004). Respondent

must approve electronic and electromechanical voting systems

prior to their use in Florida. 101.015 and 101.5605, Fla.

Stat. (2004). One of the requirements for approval of an

electronic or electromechanical voting system is that the system

"must immediately reject a ballot where the number of votes for

an office or measure exceeds the number of votes which the voter

is entitled to cast or where the tabulating equipment reads the

ballot as a ballot with no votes cast." 101.5606(3), Fla.

Stat. (2004). If the system uses a paper ballot, the system

must be capable of accepting a ballot rejected pursuant to

Subsection 101.5606(3), Florida Statutes (2004), and recording a

no vote for any office that has been overvoted or undervoted.

14. Florida law provides for recounts of votes in certain

situations. If the margin of victory for a candidate or measure

in the first set of unofficial returns is one-half of a percent

or less, a recount of the votes cast is to be ordered by the

board certifying the results on that race or measure.


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102.141(6), Fla. Stat. (2004). If paper ballots are used, the

paper ballots are put through the automatic tabulating

equipment, and a determination is made whether the returns

correctly reflect the votes cast. 102.141(6)(a), Fla. Stat.

(2004). If no paper ballots are used, the canvassing board

examines the counters on the precinct tabulators to determine

whether the total on the precinct tabulators are equal to the

overall election return. If there is a discrepancy, the

counters on the tabulators are presumed to be correct.

102.141(6)(b), Fla. Stat. (2004).

15. If the margin of victory in the second set of

unofficial returns is one-quarter of one percent or less, the

board responsible for certifying the election results shall

order a manual recount of the overvotes and undervotes cast for

that particular office or measure. 102.166(1), Fla. Stat.

(2004). A vote is to be counted "if there is a clear indication

on the ballot that the voter has made a definite choice."

102.166(5)(a), Fla. Stat. (2004). Respondent has the

responsibility to adopt rules for each certified voting system

stating what constitutes "'a clear indication on the ballot that

the voter has made a definite choice.'" 102.166(5)(b), Fla.

Stat. (2004). Respondent also has the authority to promulgate

rules which set forth recount procedures for each certified


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voting system in addition to the statutorily mandated recount

procedures. 102.166(6)(d), Fla. Stat. (2004).

16. On February 12, 2004, Respondent issued DE 04-02,

Division of Elections Opinion on manual recount procedures for

the touchscreen voting systems. Respondent opined:

Because it is impossible for a voter to

overvote or make stray marks on an

electronic ballot, the manual recount

provisions of section 102.166, Florida

Statutes, do not apply and therefore,

counties utilizing touchscreen voting

systems are not required or authorized to

print or review the electronic ballot images

of undervotes occurring in a recounted race.

17. During the 2004 legislative session, legislation was

filed, SB 3004, which would have renamed paper ballots as

marksense ballots and would have required manual recounts only

on voting systems using marksense ballots and would have

provided that manual recounts may not be conducted of undervotes

on touchscreen machines. The CS for CS SB 3004 deleted the

provisions that recounts would be done only on marksense

ballots. The revised proposed legislation died on special

calendar.

18. On April 13, 2004, Respondent amended its rule

governing recount procedures, and Petitioners have challenged

the validity of the portion of the rule dealing with recounts of

touchscreen votes, Florida Administrative Code Rule 1S-2.031(7),

which provides:


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When a manual recount is ordered and

touchscreen ballots are used, no manual

recount of undervotes and overvotes cast on

a touchscreen system shall be conducted

since these machines do not allow a voter to

cast an overvote and since a review ofundervotes cannot result in a determination

of voter intent as required by Section

102.166(5), F.S. In this case, the results

of the machine recount conducted pursuant to

paragraph (5)(c) shall be the official

totals for the touchscreen ballots.

19. Petitioners, ACLU-FL, CCF, and FSCLC, and Intervenor

PFAWF, contend that Florida Administrative Code

Rule 1S-2.031(7), prohibiting manual recounts of undervotes on

the touchscreen voting systems, violates the statutory

requirement for a manual recount and denies voters a method to

insure the accuracy of the votes cast.

20. Respondent argues that if a manual recount were to be

conducted of undervotes using the touchscreen voting systems it

would be useless in determining that there was "a clear

indication on the ballot that the voter has made a definite

choice" because the screen would be blank. This assertion may

be true if the software or hardware on the voting machine does

not malfunction. It does not deal with a malfunction situation

in which what actually appeared on the screen when the vote was

cast was not what was actually recorded by the machine. It is

not known whether such a malfunction has occurred in Florida

because a copy of the screen image is not maintained.


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21. Respondent's expert, Paul Craft, acknowledged that the

touchscreen voting systems have had problems with system

software, but pointed out that the touchscreen voting systems

certified by Respondent currently have no known system software

problems.

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. 120.56(3), Fla. Stat. (2004).

23. Petitioners, ACLU-FL, CCF, and FSCLC, and Intervenor

PFAWF, have standing to bring this rule challenge.

Subsection 120.56(3)(a), Florida Statutes (2004), provides that

"[a] substantially affected person may seek an administrative

determination of the invalidity of an existing rule at any time

during the existence of the rule."

24. In Florida Homebuilders v. Department of Labor and

Employment Security, 412 So. 2d 351, (Fla. 1982), the Florida

Supreme Court set forth the requirements for associational

standing in a rule challenge.

To meet the requirements of section

120.56(1), an association must demonstratethat a substantial number of its members,

although not necessarily a majority, are

"substantially affected" by the challenged

rule. Further the subject matter of the

rule must be within the association's

general scope of interest and activity, and

the relief requested must be of the type


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appropriate for a trade association to

receive on behalf of its members.

Id. at 353-354.

25. Petitioners ACLU-FL, CCF, and FSCLC, and Intervenor

PFAWF, have a substantial number of members who are registered

voters in Florida, and have members who are registered voters in

the 15 counties using the touchscreen voting systems who will

not have their votes manually recounted in the event of a close

election because of the challenged rule. These associations'

interests and activities include ensuring that it members' votes

are recorded accurately and maintaining the integrity of the

voting process. Having a rule declared invalid is within the

types of relief that would be appropriate for an association to

ask on behalf of its members.

26. Respondent argues that Petitioners and Intervenor do

not have standing because they have not demonstrated a

particularized injury that is different in kind from that

sustained by the public generally and that they have not

demonstrated an "injury in fact." Petitioners, ACLU-FL, CCF,

FSCLC, and Intervenor PFAWF, will sustain an injury different

from the public in general. Members voting in the 15 counties

using a touchscreen voting system, will not be entitled to have

their undervotes counted because of the challenged rule, while

voters using other types of voting systems will be entitled to


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have their undervotes counted. In NAACP, Inc. v. Florida Board

of Regents, 863 So. 2d 294, 300 (Fla. 2003), the Florida Supreme

Court rejected the type of argument that would require the

members having an injury in fact, such as cast unintended

undervotes, in order to have standing.

It also appears that the First District

was adopting a rule of standing that would

require a challenge to demonstrate immediate

and actual harm, i.e., rejection of

admission to a state university by a member

before standing would be granted. We

required no such showing in Florida Home

Builders. Indeed, such a holding would

constitute a narrowing of the concept of

standing as defined in Florida Home

Builders. Under our holding there the

required showing is that there would be a

substantial effect of the rule change on a

substantial number of its members.

27. Petitioner FVL presented no evidence on the issue of

its standing, and, thus, has failed to establish that it has

standing to bring this rule challenge. Petitioner SVREP has

voluntarily dismissed its petition.

28. Petitioners and Intervenor, as the parties challenging

an existing rule, have the burden to establish by a

preponderance of the evidence that Florida Administrative Code

Rule 1S-2.031(7) is an invalid exercise of delegated legislative

authority. 120.56(3), Florida Statutes (2004). Petitioners

and Intervenor contend that the rule at issue exceeds

Respondent's grant of rule making authority, modifies and


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contravenes the specific provisions of law it implements, and is

arbitrary and capricious.

29. Section 102.166, Florida Statutes (2004), deals with

manual recounts and provides:

(1) If the second set of unofficial

returns pursuant to s. 102.141 indicates

that a candidate for any office was defeated

or eliminated by one-quarter of a percent or

less of the votes cast for such office, that

a candidate for retention to a judicial

office was retained or not retained by one-

quarter of a percent or less of the votes

cast on the question of retention, or that a

measure appearing on the ballot was approved

or rejected by one-quarter of a percent or

less of the votes cast on such measure, the

board responsible for certifying the results

of the vote on such race or measure shall

order a manual recount of the overvotes and

undervotes cast in the entire geographic

jurisdiction of such office or ballot

measure.

(2)(a) If t

00662-wexler initial brief

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