00662-wexler initial brief
TRANSCRIPT
-
8/14/2019 00662-wexler initial brief
1/84
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
-
8/14/2019 00662-wexler initial brief
2/84
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
C- 1 of 2
-
8/14/2019 00662-wexler initial brief
3/84
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
C- 2 of 2
-
8/14/2019 00662-wexler initial brief
4/84
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.
i
-
8/14/2019 00662-wexler initial brief
5/84
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
ii
-
8/14/2019 00662-wexler initial brief
6/84
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
iii
-
8/14/2019 00662-wexler initial brief
7/84
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
iv
-
8/14/2019 00662-wexler initial brief
8/84
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
v
-
8/14/2019 00662-wexler initial brief
9/84
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
vi
-
8/14/2019 00662-wexler initial brief
10/84
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.
vii
-
8/14/2019 00662-wexler initial brief
11/84
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,
1
-
8/14/2019 00662-wexler initial brief
12/84
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.
2
-
8/14/2019 00662-wexler initial brief
13/84
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.
3
-
8/14/2019 00662-wexler initial brief
14/84
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.
4
-
8/14/2019 00662-wexler initial brief
15/84
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.
5
-
8/14/2019 00662-wexler initial brief
16/84
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.
6
-
8/14/2019 00662-wexler initial brief
17/84
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).
7
-
8/14/2019 00662-wexler initial brief
18/84
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
8
-
8/14/2019 00662-wexler initial brief
19/84
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).
9
-
8/14/2019 00662-wexler initial brief
20/84
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
10
-
8/14/2019 00662-wexler initial brief
21/84
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.
11
-
8/14/2019 00662-wexler initial brief
22/84
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).
12
-
8/14/2019 00662-wexler initial brief
23/84
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.
13
-
8/14/2019 00662-wexler initial brief
24/84
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.
14
-
8/14/2019 00662-wexler initial brief
25/84
-
8/14/2019 00662-wexler initial brief
26/84
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.
16
-
8/14/2019 00662-wexler initial brief
27/84
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
17
-
8/14/2019 00662-wexler initial brief
28/84
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
18
-
8/14/2019 00662-wexler initial brief
29/84
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.
19
-
8/14/2019 00662-wexler initial brief
30/84
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).
20
-
8/14/2019 00662-wexler initial brief
31/84
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
21
-
8/14/2019 00662-wexler initial brief
32/84
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).
22
-
8/14/2019 00662-wexler initial brief
33/84
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.
23
-
8/14/2019 00662-wexler initial brief
34/84
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.
24
-
8/14/2019 00662-wexler initial brief
35/84
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.
25
-
8/14/2019 00662-wexler initial brief
36/84
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
26
-
8/14/2019 00662-wexler initial brief
37/84
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
27
-
8/14/2019 00662-wexler initial brief
38/84
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).
28
-
8/14/2019 00662-wexler initial brief
39/84
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.
29
-
8/14/2019 00662-wexler initial brief
40/84
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.
30
-
8/14/2019 00662-wexler initial brief
41/84
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
31
-
8/14/2019 00662-wexler initial brief
42/84
-
8/14/2019 00662-wexler initial brief
43/84
-
8/14/2019 00662-wexler initial brief
44/84
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
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
George Waas, Esquire
Office of the Attorney General
PL-01 The Capitol
Tallahassee, FL 32399-1050
Christopher M. Kise, Solicitor General
Office of the Attorney GeneralPL-01 The Capitol
Tallahassee, FL 32399
Attorneys for Defendant-Appellee Hood
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected] -
8/14/2019 00662-wexler initial brief
45/84
-
8/14/2019 00662-wexler initial brief
46/84
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
-
8/14/2019 00662-wexler initial brief
47/84
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
-
8/14/2019 00662-wexler initial brief
48/84
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
Office of the Attorney General
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
-
8/14/2019 00662-wexler initial brief
49/84
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.
-
8/14/2019 00662-wexler initial brief
50/84
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.
-
8/14/2019 00662-wexler initial brief
51/84
5
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.
-
8/14/2019 00662-wexler initial brief
52/84
6
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
-
8/14/2019 00662-wexler initial brief
53/84
7
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
-
8/14/2019 00662-wexler initial brief
54/84
8
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
-
8/14/2019 00662-wexler initial brief
55/84
9
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.
-
8/14/2019 00662-wexler initial brief
56/84
10
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
-
8/14/2019 00662-wexler initial brief
57/84
11
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:
-
8/14/2019 00662-wexler initial brief
58/84
12
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.
-
8/14/2019 00662-wexler initial brief
59/84
13
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
-
8/14/2019 00662-wexler initial brief
60/84
14
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
-
8/14/2019 00662-wexler initial brief
61/84
15
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
-
8/14/2019 00662-wexler initial brief
62/84
16
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