Sarasota Alliance for Fair Elections v. Kurt S. Browning

SC07-2074

PLEASE RISE.
O YE, O YE, O YE.
THE SUPREME COURT OF FLORIDA IS
NOW IS SESSION.
ALL THOSE HAVING BUSINESS
BEFORE THIS COURT, DRAW NIGH,
GIVE ATTENTION, AND YE SHALL
BE HEARD.
GOD SAVE THE UNITED STATES,
GREAT STATE OF FLORIDA, AND
THIS HONORABLE COURT.
GOOD MORNING.
GOOD MORNING.
GOOD MORNING.
LADIES AND GENTLEMEN, THE
FLORIDA SUPREME COURT.
PLEASE BE SEATED.
GOOD MORNING, BENCH.
WEM WECOME TO THE FLORIDA
SUPREME COURT AND THE ORAL
ARGUMENT CALENDAR FOR
WEDNESDAY, MAY 7th.
THE FIRST CASE ON OUR CALENDAR
THIS MORNING IS SARASOTA
ALLIANCE FOR FAIR ELECTIONS v.
BROWNING.
READY TO PROCEED?
WE ARE.
THANK YOU.
MAY IT PLEASE THE COURT, MY
NAME IS TOM SHULTS AND I
REPRESENT THE SARASOTA ALLIANCE
FOR FAIR ELECTIONS KINDRA MUNTZ
AND SUSETTE BRYAN.
THERE ARE A FEW ISSUES WE
SHOULD ADDRESS BEFORE WE GET TO
THE SUBSTANTIVE ARGUMENTS IN
THIS CASE.
THE FIRST IS WHAT DOES THIS
CHARTER AMENDMENT DO AND WHY
WAS THIS CHARTER AMENDMENT
ENACTED BY THE PEOPLE OF THE
STATE OF FLORIDA?
THE CHARTER AMENDMENT OF
SARASOTA COUNTY, THE CHART
AMENDMENT IS IN --
WHEN WAS THE CHARTER
AMENDMENT ACTUALLY PASSED BY
THE ELECTORATE AND IN
RELATIONSHIP TO THE CHANGE TO
THE ELECTION CODE INVOLVING THE
KIND OF BALANCE?
YOUR HONOR, THE CHARTER
AMENDMENT WAS PASSED IN
NOVEMBER OF 2006 TO TAKE EFFECT
IN JANUARY 2008.
THE LEGISLATIVE CHANGE OCCURRED
DURING THE SPRING OF 2007.
NOW, THE LEGISLATIVE CHANGE
REQUIRING PAPER BALLOTS DOES
NOT TAKE EFFECT UNTIL I BELIEVE
JULY 2008, WHEREAS IN SARASOTA
WE ALREADY HAVE A PAPER BALLOT
SYSTEM THAT WE'RE USING UNDER
THE CHARTER AMENDMENT, AND WE
HAVE BEEN USING THAT SO FAR
THIS YEAR IN TWO ELECTIONS.
LET ME ASK YOU JUST ONE
QUESTION.
IT SEEMS AS THOUGH THE
UNDERLYING THEME THAT WE'RE
DEALING WITH HERE IS THAT
ALTHOUGH WE DON'T HAVE AN
EXPRESS PREEMPTION, WE HAVE
SOMETHING THAT COVERS THE STATE
OF FLORIDA.
IT SEEMS PRETTY COMPREHENSIVE
IN ITS APPROACH, AND IT APPEARS
THE UNDERCURRENT IS SIMPLY THAT
THERE IS A REAL DANGER THAT WE
WOULD END WITH 67
DIFFERENT KINDS OF APPROACHES
TO ELECTIONS.
AND COULD YOU ADDRESS JUST THAT
UNDERLYING APPROACH TO THIS?
WELL, THERE'S NOT A DANGER
PRESENTED BY THIS CHARTER.
NO?
AMENDMENT.
THERE IS NO DANGER PRESENTED
BECAUSE THIS CHARTER AMENDMENT,
AND THE SECRETARY FOCUSES
PRIMARILY ON THE AUDITING PART
OF IT, AND THE DISTRICT COURT
UNFORTUNATELY ACCEPTED THE
CHARACTERIZATION THAT THE
AUDITS WERE VOTE COUNTS, WHICH
THEY ARE NOT.
THE AUDITS UNDER SECTION A --
UNDER SECTION B AND C OF THE
CHARTER AMENDMENT MERELY
REQUIRE THE AUDITORS TO CHECK
IN A LIMITED FASHION WHETHER
THE MACHINES IN A LIMITED
NUMBER OF PRECINCTS ARE
COUNTING THE VOTES CORRECTLY.
THEY DO A REPORT AND THEY GIVE
THE REPORT TO THE BOARD OF
COUNTIES --
IS THIS DONE BEFORE THE
CERTIFICATION OF VOTES?
YES, IT IS.
AND IF THIS AUDIT FINDS THAT
THERE IS A DISCREPANCY BETWEEN
THE VOTES FOUND INITIALLY AND
THE VOTES FOUND IN THE AUDIT,
WHICH GOVERNS?
THE, THE VOTES THAT ARE
COUNTED UNDER THE STATUTE
ALWAYS GOVERN.
IN OTHER WORDS, THE CANVASSING
OF THE VOTES UNDER THE STATUTE
IS CLEARLY A VOTE COUNT.
THE AUDITS UNDER THE CHARTER
AMENDMENT ARE SIMPLY, SIMPLY AN
INTRACOUNTY ACCURACY CHECK,
WHICH RESULTS IN A REPORT BEING
HANDED TO THE BOARD OF COUNTY
COMMISSIONERS.
IT HAS NO LEGAL EFFECT;
HOWEVER, IT INFORMS THE
COMMISSION AS TO WHETHER OR NOT
THE MACHINES THAT THEY'VE SPENT
QUITE A BIT OF MONEY ON ARE
FUNCTIONING CORRECTLY.
I THINK YOU WERE BEGINNING
TO AT LEAST TELL US, AND I'M
INTERESTED IN THIS, AS TO THE
PURPOSE OF THIS CHARTER
AMENDMENT AND, YOU KNOW, I, THE
WAY I LOOK AT THIS, I'M GOING
TO ASK THE OTHER SIDE THIS IS
THAT THE ELECTION CODE SETS UP
A FLOOR AS TO WHAT'S MINIMALLY
ACCEPTABLE, BUT I THINK YOU
WERE GOING TO TELL US THAT WHAT
THE VOTERS IN SARASOTA COUNTY
WANTED IS TO MAKE SURE THAT TO
ENHANCE THE INTEGRITY OF THE,
OF THE VOTING SYSTEM.
RIGHT, AND IN FACT, THAT'S
STATED RIGHT IN THE AMENDMENT.
THERE ARE TWO PURPOSES.
TO ENSURE ACCURACY IN
ELECTIONS, AND TO ENSURE, THE
PUBLIC'S CONFIDENCE IN ELECTION
RESULTS.
AND THE CHARTER AMENDMENT
REALLY DOES THAT WITHOUT
BUMPING UP AGAINST ANY
PROVISIONS OF THE STATUTE.
I'M JUST WONDERING BECAUSE
THE THING ABOUT THE AUDIT, WE
GET THERE IF WE FIND THERE IS
IMPLIED PREEMPTION, WE THEN
DON'T WORRY ABOUT THE CONFLICT,
WHETHER THERE IS CONFLICT IN
INDIVIDUAL PROVISIONS BECAUSE
WHAT WE WOULD BE SAYING IS THAT
NO COUNTY COULD PASS SOMETHING
THAT HAS A, A VOTING SYSTEM
THAT PROVIDES FOR MORE
INTEGRITY THAN THE LEGISLATURE
HAS DECIDED TO PROVIDE -- I
MEAN, THAT WOULD BE --
THAT WOULD BE THE RESULT OF
IMPLIED PREEMPTION.
ISN'T THE PROBLEM CIRCLE
BACK TO JUSTICE LEWIS WAS, WAS
CONCERNED ABOUT, OUR, IS HIS
QUESTIONING ABOUT AND THAT IS
THAT IF THERE IS NOT IMPLIED
PREEMPTION THEN WHAT WE'RE INTO
IS THAT EVERY TIME A COUNTY
DOES THIS AND THE, THE VALUE --
EVALUATING WHETHER IT IS IN
CONFLICT OR NOT IN CONFLICT,
AND EACH AND EVERY ITEM.
AND IT SEEMS TO ME THAT THAT --
WHY, WHY DOESN'T THAT JUST AN
UNNECESSARY BURDEN ON THE
SYSTEM?
WELL, THAT'S WHAT OUR
CONSTITUTION REQUIRES, YOUR
HONOR.
BECAUSE THIS IS A HOME RULE
COUNTY.
HOME RULE COUNTIES HAVE BROAD
AUTHORITY AS LONG AS THEY ARE
NOT INCONSISTENT WITH GENERAL
LAW.
AND ALSO THAT THE STATUTE 120,
I BELIEVE --
WE DON'T DO THAT AS FAR AS
ANY OTHER ELECTION LAWS ARE
CONCERNED.
AS FAR AS THE ELECTION LAWS ARE
CONCERNED, WE HAVE A SERIES OF
CASES IN WHICH WE HAVE, HAVE
EMPHASIZED THE NECESSITY FOR
UNIFORMITY ACROSS THE STATE IN
ORDER TO BE ABLE TO EVALUATE
WHETHER EACH VOTE'S BEING
COUNTED, AND HOW ALL OF
THESE ELECTION CONTESTS THAT WE
GET ON A, ELECTION BASIS, I
MEAN, WE CERTAINLY WENT THROUGH
THAT IN 2000.
AND EVERY VOTE WILL BE
COUNTED IN SARASOTA COUNTY.
AND I UNDERSTAND THE COURT'S
APPRECIATION FOR UNIFORMITY,
BUT THE LEGISLATURE HAS NEVER
PREEMPTED LOCAL ELECTION LAW,
AND IT'S VERY SIGNIFICANT THAT
WE WENT THROUGH THE 2000
EXPERIENCE, AND --
HOW ABOUT GIVING US A
THUMBNAIL SKETCH OF THAT AS FAR
AS WHAT EXISTED ON THE GROUND
BEFORE THE PASSAGE OF THIS
CHARTER AMENDMENT AND, AND BE A
LITTLE MORE EXPANSIVE AS FAR AS
NOT JUST COUNTY LEGAL
PROVISIONS BUT THE AUTHORITY
VESTED IN LOCAL SUPERVISORS OF
ELECTIONS IN TERMS OF THEIR
DISCRETION AS FAR AS WHAT THE
VOTING APPARATUS THAT WOULD BE
USED, YOU KNOW, ONE OF THE
ISSUES WE HAD BACK IN THE 2000
ELECTIONS WAS THIS IDEA OF
BUTTERFLY BALLOT KIND OF THING.
WHERE THE APPEARANCE AT LEAST
WAS THAT THERE WERE 67
DIFFERENT WAID OF CONDUCTING
ELECTIONS IN THE STATE OF
FLORIDA.
CERTAINLY THAT WAS AN
APPEARANCE GIVEN TO THE GREATER
WORLD OUT THERE.
CAN YOU INFORM US?
CAN YOU GIVE US A VIEW AS TO
HOW MUCH LOCAL AUTHORITY
ALREADY EXISTS WITH LOCAL
VOTING --
TRADITIONALLY --
TRADITIONALLY, IT HAS ALWAYS
EXISTED.
ELECTION -- THE ADMINISTRATION
ON A LOCAL LEVEL OF ELECTIONS
HAS NEVER BEEN UNIFORM.
THE COUNTIES, AND IN FACT, AS
IT EXISTS TODAY, THERE ARE
THREE DIFFERENT VENDORS OF
VOTING MACHINES WHO MANUFACTURE
SIX DIFFERENT SYSTEMS, ANY OF
WHICH CAN BE SELECTED BY A
COUNTY SO YOU HAVE FROM
COUNTIES -- LIBERTY COUNTY HAS
A DIFFERENT SYSTEM FROM LEON,
HARDY COUNTY HAS A DIFFERENT
SYSTEM FROM SARASOTA, ET
CETERA.
BUT ALL OF THOSE SYSTEMS
HAVE BEEN APPROVED BY THE
DEPARTMENT OF STATE.
THAT'S CORRECT, YOUR HONOR,
AS THIS SYSTEM HAS BEEN.
THE CHARTER ADOPTED SYSTEM
WHICH HAS BEEN USED BY THE WAY
BY CERECITEY COUNTY IS THE ONLY
SYSTEM WHICH PROVIDES THE PAPER
BALLOT TO THE DISABLED.
WE DID IT EARLY UNDER THE
CHARTER AMENDMENT WHEREAS THE
REST OF THE STATE DOESN'T HAVE
TO DO IT UNTIL 2012.
TO GET BACK TO YOUR QUESTION,
YOUR HONOR, THE ADMINISTRATION
OF ELECTIONS HAS NEVER BEEN
UNIFORM.
THERE -- HAS ALWAYS BEEN
AUTHORITY VESTED IN THE LOCAL
GOVERNMENTS TO ADMINISTER
ELECTIONS, INCLUDING THE
SELECTION OF VOTING SYSTEMS.
NOW, VOTING --
HASN'T THAT CHANGED
DRAMATICALLY AFTER THE 2000
ELECTION, HASN'T THE
LEGISLATURE ESSENTIALLY
REWRITTEN THE ELECTION CODE
AFTER 2000 TO TRY TO OBTAIN
SOME UNIFORMITY IN VOTING IN
THE STATE OF FLORIDA, AND ISN'T
THAT EXEMPLIFIED BY SECTION
101041, WHICH SAYS NO VOTE
SHALL BE RECEIVED OR COUNTED IN
ANY ELECTION EXCEPT AS
PRESCRIBED BY THIS CODE.
NOW, IF THAT'S NOT EXPRESS
PREEMPTION, ISN'T THAT A PRETTY
CLEAR INDICATION OF IMPLIED
PREEMPTION AND THE INTENTION
THAT THE VOTING SYSTEM BE AS
UNIFORM AS POSSIBLE THROUGHOUT
THE STATE.
THAT IS THE STATEMENT THAT
THEY WANT TO HAVE VOTES COUNTED
AS DESIGNATED IN THE CODE AND
THAT IF ANY COUNTY IS GOING TO
ENACT A LAW REGARDING THE
COUNTING OF VOTES, IT SHOULD
NOT -- IT CANNOT BE
INCONSISTENT WITH THAT LAW,
YOUR HONOR, SO YES, DEFINITELY
THEY SAID IF YOU'RE GOING TO
COUNT A VOTE, YOU ARE GOING TO
COUNT IT THE WAY THAT WE HAVE
DESIGNATED IN THE STATUTE.
BUT WHAT DID THE LEGISLATURE --
DOESN'T THAT INCLUDE THE
SYSTEM FOR COUNTING THE VOTES?
THE MACHINES THAT ARE USED FOR
COUNTING THE VOTES MAY NOT BE
STATED IN THAT SECTION BUT
OTHER SECTIONS DO REQUIRE THE
APPROVAL OF THE STATE IN ORDER
TO USE A CERTAIN VOTING SYSTEM.
CORRECT.
HOWEVER, UNDER 5604, YOUR
HONOR, THEY DID NOT CHANGE THE
POWER OF THE COUNTIES TO SELECT
A VOTING SYSTEM.
NOW THE VOTING SYSTEM HAS TO BE
FROM A MENU APPROVED BY THE
SECRETARY, NO DOUBT ABOUT IT,
BUT IF THE LEGISLATURE HAD
INTENDED TO ENFORCE UNIFORMITY
IN 2001, WHAT THEY WOULD'VE
DONE IS THEY WOULD'VE SAID SO.
THEY WOULD'S SAID ALL LOCAL
LAWS ARE PREEMPTED AND THEY
WOULD NOT HAVE LEFT IN 5604 THE
POWER OF THE COUNTIES TO SELECT
THEIR OWN VOTING SYSTEM.
WOULD YOU CONTINUE WITH WHAT
JUSTICE ANSTEAD WAS ASKING,
WHICH IS I AM TRYING TO
UNDERSTAND, YOU KNOW, WE ALL --
MOST OF US KNOW ABOUT THE 2000
ELECTION FIRSTHAND.
AND I DON'T KNOW LIKE WAS IT A,
A LONG ELECTION CODE THAT
EXISTED IN 2000?
WHAT CHANGES WERE MADE AFTER
THE 2000 ELECTION AND MAYBE
THAT CAN HELP US FIGURE OUT IF
-- BECAUSE WE KNOW THERE WASN'T
-- AT LEAST I WOULDN'T THINK
ANYONE COULD MAKE AN ARGUMENT
THAT THERE WAS IMPLIED
PREEMPTION IN 2000.
FILL THAT TIME, I THINK, I
MEAN, TO ME I WOULD, I WOULD
LOVE THERE TO BE TOTAL
UNIFORMITY BUT WHAT CHANGED IN
AFTER 2000 IN THE CODE?
WAS IT MADE THREE TIMES AS
LONG?
WAS IT -- IF YOU COULD EXPLAIN
THAT.
THEY BANNED PUNCH CARD
BALLOTS.
THAT'S WHAT THEY DID --
THEY TOOK THE ISSUES -- THEY
DID MORE THAN THAT AS FAR AS
WHAT WOULD TRIGGER A MANUEL
RECOUNT.
THEY REWROTE --
IN 2000, WAS THAT SOME
STATES, SOME COUNTIES DECIDED
TO HAVE A MANUEL RECOUNT AND
OTHERS DIDN'T.
IS THAT STILL POSSIBLE FOR THAT
TO OCCUR?
THEY, THEY PLANNED PUNCH
CARD BALLOTS AND THEY DID A
TWO-PHASE RECOUNT IN THE
REWRITE.
THERE IS A FIRST PHASE RECOUNT
IS A MACHINE RECOUNT THAT TAKES
PLACE IF THERE IS A HALF A
PERCENTAGE DIFFERENCE IN ANY
RACE.
THAT'S NOT A MANUAL RECOUNT.
THEN THERE IS A PHASE TWO
RECOUNT IF THERE IS A QUARTER
PERCENT DIFFERENCE AFTER THE
PHASE ONE RECOUNT, THEY
ACTUALLY SIT DOWN AND MAN WALE
RECOUNT THE OVERVOTES AND UNDER
VOTES.
DO THEY PUT A STANDARD IN AS
TO HOW WHAT WOULD BE COUNTED AS
A VOTE?
A AFTER 2000?
THE I BELIEVE THE SECRETARY
HAS ENACTED STANDARDS THAT
ADDRESS THAT PARTICULAR ISSUE.
AND IS YOUR COUNT AND
RECOUNT PROCESS IN YOUR CHARTER
AMENDMENT, DOES IT MIRROR WHAT
THE STATUTE PROVIDES?
NO, IT'S NOT, IT'S NOT
ANYTHING CLOSE TO WHAT THE
STATUTE IS YOUR HONOR BECAUSE
IT'S NOT A COUNT OR RECOUNT.
IT'S SIMPLY GOING AND IN MAKING
SURE THAT THE MACHINES ARE
COUNTING THE PAPER BALLOTS
CORRECTLY.
PRIOR TO CERTIFICATION?
PRIOR TO CERTIFICATION.
BY INDEPENDENT AUDITORS.
AND WHAT DOES THE STATUTE
PROVIDE?
THE STATUTES DO NOT PROVIDE
FOR PRECERTIFICATION AUDITS.
THEY PROVIDE --
WHAT OF SECTION 101.5911
PROVIDE FOR?
DOESN'T THAT SECTION SAY THAT
THE SECRETARY OF STATE IS
SUPPOSED TO PROMULGATE RULES
ABOUT AUDITS?
AND HAS THAT -- HAS THE
SECRETARY OF STATE DONE THAT?
YOU KNOW I'M HAVING A PROBLEM
WITH THE AUDIT SECTION OF YOUR
CHARTER AMENDMENT BECAUSE IF
THE STATUTE PROVIDES THAT THE
SECRETARY OF STATE IS SUPPOSED
TO DO RULES FOR AUDIT AND THAT
THE SECRETARY OF STATE HAS IN
FACT -- HOW DOES YOUR
AUDIT WITH SIT WITH THOSE
RULES.
THE STATUTE REQUIRES
POST-CERTIFICATION AUDITS.
THE ORDINANCE REQUIRES
PRE-CERTIFICATION AUDIT.
THE STATUTE TELLS THE SECRETARY
TO ENACT RULES REGARDING POST
CERTIFICATION AUDITS.
WELL, THE STATUTE ACTUALLY
SAYS SELF-SUBSCRIBE DETAILING
AUDIT PROCEDURES FOR EACH
VOTING SYSTEM WHICH SHALL BE
UNIFORM TO THE EXTENT PRACTICAL
ALONG WITH THE STANDARD FORMS
FOR AUDIT REPORTS.
IT DOESN'T ACTUALLY USE THE
TERM PRE^OR POST AUDIT.
I BELIEVE YOUR HONOR IS
READING 591.
5911.
THAT'S A POST CERTIFICATION
AUDIT, IF I'M NOT MISTAKEN.
AND THE SECRETARY THAT IS QUITE
DIFFERENT FROM WHAT THE
ORDINANCE SAYS.
THE SECRETARY IS EMPOWERED TO
ENACT RULES WHICH I DON'T THINK
THEY HAVE AS OF YET BUT I WILL
LET THE SECRETARY' LAWYERS
SPEAK TO THAT.
YOU SAID THE AUDIT IS NOT
GOING TO HAVE ANY LEGAL EFFECT.
AS FAR AS COUNTING VOTES.
CORRECT, YOUR HONOR.
SURELY YOU HAVE TO
CONTEMPLATE IF YOU HAVE A
PRE-CERTIFICATION AUDIT, AND
THE AUDIT DISCLOSES ISSUES,
THAT IT IS GOING TO COMPLETELY
THROW A WRENCH IN THE
CERTIFICATION PROCESS AS A
PRACTICAL MATTER, IS IT NOT?
AS A PRACTICAL MATER MAY
GIVE REASON FOR CONTEXT TEST OF
AN ELECTION BUT HAVING SAID
THAT THIS AUDIT DOES NOT DO
ANYTHING THAT A MEMBER OF THE
PUBLIC CANNOT ALREADY DO UNDER
THE STATUTE UNDER 101572, A
MEMBER OF THE PUBLIC CAN WALK
INTO THE ELECTION OFFICE, PICK
RANDOM BALLOTS, AND CONDUCT THE
SAME TYPE OF AUDIT CALLED FOR
IN THIS CHARTER AMENDMENT.
SO MY QUESTION IS, IF A
MEMBER OF THE PUBLIC CAN WALK
IN AND CONDUCT THIS TYPE OF
AUDIT, WHICH THEY CAN, THEN WHY
CAN'T THE PEOPLE OF SARASOTA
COUNTY SAY WE CAN'T -- WE'D
LIKE THIS TO HAPPEN IN OUR
COUNTY BECAUSE WE WANT THIS
MACHINE TO OPERATE CORRECTLY.
AS I UNDERSTAND YOUR
ARGUMENT EARLIER THAT THIS IS
REALLY INTENDED JUST TO INFORM
THE COUNTY COMMISSION, WHY IS
IT PRECERTIFICATION?
BECAUSE THE CLOSER YOU
CONDUCT AN AUDIT OF THE ACIACY
OF THE MACHINES TO ELECTION DAY
THE MORE EFFICACY OF THE AUDIT
AND THE MORE CREDIBILITY THE
AUDIT IS GOING TO HAVE.
IF YOU WAIT MONTHS UNTIL AFTER
THE ELECTION DAY, THE PUBLIC IS
GOING TO USE CONFIDENCE IN THE
EFFICACY OF THE AUDIT.
I DIDN'T THINK THAT WAS THE
REASON YOU WERE DOING IT.
I THOUGHT THAT WAS IF THE
BENEFIT OF THE COUNTY
COMMISSIONERS.
WELL, THAT'S THE REPORT GOES
TO THE COUNTY COMMISSION SO
THAT THEY CAN REVIEW IT,
DETERMINE IF THEIR MACHINES ARE
WORKING CORRECTLY, BUT THE
OVERALL PURPOSE OF THE
AMENDMENT IS TO PROMOTE PUBLIC
CONFIDENCE IN THE ELECTION.
WELL, AND YOU KNOW, AS WE
LOOK AT THIS, I DON'T THINK
THERE'S A MEMBER ON THIS COURT
THAT WOULD SAY WE WANT TO
UNDERMINE THE CONFIDENCE IN ANY
ELECTION.
I MEAN CERTAINLY THESE
QUESTIONS ARE NOT DESIGNED FOR
THAT.
BUT AN UNDERLYING, WITH ALL THE
BEST MOTIVES I THINK
THAT'S UNDERSTOOD AND IT GOES
WITHOUT SAYING YOU'RE REALLY
TRYING TO GET IT RIGHT, WHERE
DOES THIS TAKE US, THOUGH?
I THINK ONE THING THE LESSON OF
THE 2000 EXPERIENCE
DEMONSTRATED IS THAT WE DO NEED
TO HAVE CONFIDENCE IN OUR
ELECTIONS BUT ALSO I THINK
THERE'S AN ISSUE IS THIS GOING
TO THROW THE JUDICIAL BRANCH
MORE INTO THIS ELECTIVE PROCESS
THROUGH CREATING MORE AVENUES
FOR LITIGATION THAN IT IS GOING
TO RESOLVE, AND I HAVE AN
UNDERLYING CONCERN ABOUT THAT'S
WHY I ASKED THE QUESTION ABOUT
67 DIFFERENT APPROACHES, AND
I'M NOT SURE THAT IF WE'RE
LOOKING AT IT FROM A POLICY
STANDPOINT THAT IT'S, THAT IT'S
A GOOD IDEA TO THRUST THE
JUDICIAL BRANCH INTO THE MIDDLE
OF EVERY ELECTION THAT OCCURS,
AND I THINK IT MAY BE HARMFUL
AND THAT GOES, THAT DOESN'T
MEAN WE OUGHT NOT HAVE VALID
ELECTIONS I MEAN PLEASE
UNDERSTAND THAT.
CAN YOU HELP ME WITH THAT?
WELL, I THINK IT, IT REALLY
GETS DOWN TO WHAT IS THE LEGAL
EFFECT OF THESE AUDITS.
IT HAS NO LEGAL EFFECT.
AND THEN YOU HAVE TO DETERMINE
WHETHER THE COURT WANTS TO GET
INVOLVED AND REWORK WRITING THE
ELECTION CODE, WHICH IN MY
OPINION THE SECOND DCA MAJORITY
CODE DID WHEN THEY WROTE IN A
STATE STATEMENT OF PREEMPTION
INTO THE ELECTION CODE.
THAT'S SOMETHING THE COURT
NEEDS TO AVOID, ESPECIALLY WHEN
DEALING WITH A HOME RULE
COUNTY, AND, AND THE DEBATE WE
ARE HAVING HERE IN YOUR HONOR'S
STATEMENTS ABOUT EVERYBODY
WANTS TO HAVE ACCURATE
ELECTIONS EVERYONE IN THIS
COURTROOM AGREES WITH THAT.
IT'S UP TO THE LEGISLATURE,
HOWEVER, TO ENACT A LAW CALLING
FOR UNIFORMITY.
IF THE LEGISLATURE WANTS TO BAN
THE ABILITY OF THE LOCAL
SUPERVISOR OR A COUNTY TO CHECK
THE ACCURACY OF THE MACHINES,
THEY REALLY NEED TO SAY THAT
BECAUSE BY THE WAY, RIGHT HERE
IN LEON COUNTY YOUR OWN
SUPERVISOR HAS HIS OWN SYSTEM
OF AUDITS IN PLACE.
HE IN FACT TESTIFIED AT THE
TRIAL.
WELL, UNDER THE SECOND DCA
OPINION WELL, THAT'S
UNCONSTITUTIONAL.
LOCALITIES ARE POWERLESS TO
CHECK THE ACCURACY OF THEIR
MACHINES.
IF THE SECOND DCA MAJORITY
OPINION --
BUT YOU SAY THAT YOU -- AN
ELECTIONS HAVE ALREADY BEEN
CONDUCTED AND WAS THIS AUDIT
PROCEDURE INVOKED AFTER THESE
ELECTIONS?
THE AUDIT PROCEDURE WAS NOT
INVOKED BECAUSE OF THEM --
BECAUSE THE MAJORITY
OPINION.
BUT THE NEW SYSTEM WAS
ALREADY PURCHASED AND IS IN
FACT IN PLACE IN, IN SARASOTA.
AND THAT NEW SYSTEM ISN'T
KEEPING WITH THE SYSTEMS THAT
THE STATE AS HAS APPROVED.
WELL, YES, EXACTLY, IN FACT
WE HAVE PUT INTO PLACE THE
DISABLED PAPER BALLOT SYSTEM
FOUR YEARS AHEAD OF TIME.
PEOPLE OF SARASOTA COUNTY ARE
VERY PROUD OF THAT.
THE SECRETARY OF STATE BELIEVES
THAT WAS UNCONSTITUTIONAL ON
OUR PART.
BECAUSE WE DID IT PURSUANT TO A
CHARTER AMENDMENT, WHICH, WHICH
REQUIRED US TO SELECT THIS
TYPE OF, OF SYSTEM, AND I --
WE ARE GOING TO GET TO THE
BOTTOM OF THIS SO ARE YOU THEN
SAYING IS THAT THERE'S GOING TO
BE LITIGATION ABOUT THE
DISABLED USING YOUR EQUIPMENT?
IS THAT SOMETHING ON THE
HORIZON NOW THAT IS --
I'M SORRY.
THAT IS SOMETHING THAT'S
BEING ARGUED HERE IN COURT AND
WAS ARGUED IN THE SECOND DCA.
THE SECRETARY IS ARGUING THAT
WE, WE DID SOMETHING WRONG BY
REQUIRING THE ADOPTION OF THE
DISABLED SYSTEM BECAUSE WE
DIDN'T HAVE TO DO IT UNTIL
2012.
WELL, I THINK WHAT WE ARE
DEALING WITH --
UNDER THE LAW.
IF YOU HAD, IF THE
SUPERVISOR OF ELECTIONS HAD
SAID WE'RE GOING TO PROVIDE A
VERIFIED PAPER BALLOT BEFORE
THE LAW HAD CHANGED, AND THE
SUPERVISOR HAD SAID THEY ARE
GOING TO DO THAT, THE -- I
WOULD ASSUME NOBODY WAS GOING
TO CHALLENGE THAT.
I GUESS IT'S BECAUSE THE SOURCE
OF THE IS A REQUIREMENT IN THE
CHARTER AS POSED TO THE
DISCRETION OF THE SUPERVISOR OF
ELECTIONS,
WHICH TO ME IS THAT HOW YOU
PERCEIVED WHAT HAPPENED.
WELL WITH ONE CORRECTION,
THE SUPERVISOR HAS NO POWER TO
SELECT A SYSTEM.
THAT POWER IS A COUNTY POWER.
WELL DONE IN THE COUNTY.
ADDRESSED THROUGH THE COUNTY
COMMISSION.
WHEN YOU SAID MR.^SANCHO, I
KNOW THAT HE IS THROUGHOUT THIS
WHOLE TIME HAS ALWAYS PRIDED
THAT LEON COUNTY HAS A BETTER
SYSTEM THAN MOST OF THE STATE.
AND HE TESTIFIED IN YOUR, IN
YOUR BEHALF AND NONE OF THIS
CONFLICTED WITH THE ELECTION
CODE.
CORRECT.
YOUR HONOR, BUT SO WHAT WE HAVE
ENACTED UNDER PARAGRAPH A, AND
AGAIN ALL OF THESE PROVISIONS
ARE DEVISABLE.
THERE'S BEEN CONCERNS ABOUT
PARAGRAPH C ABOUT THAT NO
ELECTION SHALL BE CERTIFIED IN
TILL.
WELL, THE, THE CHARTER
AMENDMENT HAS A VERY STRONG
SEVERABILITY CLAUSE IN IT, AND
I -- THE OTHER SIDE HAS NOT
ARGUED THAT THAT SEVERABILITY
CLAUSE CANNOT BE APPLIED IN
THIS CASE.
SO YOU'RE AGREEING THAT THAT
PARTICULAR PERMISSION IS IN
CONFLICT WITH THE STATUTE?
I'M NOT AGREEING WITH THAT,
YOUR HONOR.
I THINK IT CAN BE RECONCILED
BUT TO THE --.
WELL, AREN'T THE TIME FRAMES
ACCORDING TO YOUR CHARTER
AMENDMENT AND THE STATUTE,
AREN'T THE TIME FRAMES OFF IF
YOU FOLLOW YOUR PROCEDURE?
THE, NO, THEY ARE NOT, YOUR
HONOR BECAUSE THE, THE, THE
SECTION K AUDIT WHICH IS THE
QUOTE UNQUOTE COMPREHENSIVE
AUDIT HAS TO BE COMPLETED
WITHIN FIVE DAYS FOR --
BUT ISN'T --
AND THE ELECTION DOESN'T
HAVE TO BE CERTIFIED UNTIL 7 OR
12 DEPENDING ON WHETHER IT'S A
PRIMARY OR GENERAL.
OTHER THAN YOU CALLED IT AN
AUDIT AREN'T WE REALLY TALKING
ABOUT A RECOUNT.
NO, YOUR HONOR, BECAUSE IT
HAS NO LEGAL EFFECT.
THIS DOES NOT, THIS DOES NOT
AFFECT THE DUTIES OF THE
CANVASSING COMMISSION
WHATSOEVER.
IT'S AN INTERNAL AUDIT WITH A
REPORT TO THE COUNTY
COMMISSIONER.
HOW CAN YOU SAY IT HAS NO
LEGAL EFFECT IF IN FACT YOU'RE
NOT GOING TO CERTIFY THE
RESULTS OF THE ELECTION UNTIL
AFTER YOU'VE DONE THIS?
WELL, THAT'S WHERE, THAT'S
WHERE THE CONCERN IS.
AND THAT, IF WE CANNOT
RECONCILE THAT PROVISION WITH
THE STATUTE, WHICH REQUIRES
CERTIFICATION IN TELEVISION
DAYS AND THERE'S NO DOUBT
YOU'VE GOT TO CERTIFY ON THE
12th DAY.
NOTHING CAN CHANGE THAT IN A
LOCAL, IN A LOCAL LAW.
SO UNLESS WE CAN RECONCILE THAT
PROVISION WITH THE ORDINANCE,
AND I BELIEVE IT CAN AND I
BELIEVE, I BELIEVE IT CAN IN
THIS WAY AND THAT MEANS IF YOU
READ THE, THE CHARTER
AMENDMENT, YOU HAVE TO COMPLETE
YOUR AUDIT WITHIN FIVE DAYS.
IF THE ELECTION IS OTHERWISE
READY FOR CERTIFICATION ON THE
FOURTH DAY, YOU DON'T SET IT UP
FOR CERTIFICATION BECAUSE THE
AUDIT WILL BE COMPLETE UNDER
NEXT DAY BUT WHEN THE AUDIT IS
COMPLETED, THEN WILL BE
CERTIFIED.
NOW, IF THE COURT CANNOT
RECONCILE IT IN THAT FASHION,
THAT PROVISION IS EASILY
SEVERABLE.
WELL YOU ALREADY -- THE
TRIAL JUDGE IN THIS CASE
ALREADY FOUND THAT WAS IN
CONFLICT.
HE SAID HE HAD CONCERNS.
YOU HAVEN'T -- WELL, HE
SAID, I MEAN, IT LOOKED TO ME
THAT IT WAS THAT THAT ITSELF
WAS THE CONFLICT BUT HE WASN'T
GOING TO HOLD THE WHOLE THING
UNCONSTITUTIONAL.
YOU HAVEN'T APPEALED THAT
FINDING, HAVE YOU?
NO, WE HAVEN'T.
WE HAVEN'T.
IT SEEMS TO ME YOU'RE
POTENTIALLY CREATING MORE
PROBLEMS THE WAY YOU DESCRIBED
IT BECAUSE IF THE AUDIT DOES
NOT HAVE ANY LEGAL EFFECT, AND
IF THE AUDIT WOULD CHANGE THE
RESULT OF THE ELECTION, THEN
YOU'RE GOING TO HAVE A BIG
PROBLEM IN THE COUNTY BECAUSE
YOU'VE NOW AGREED THAT YOU
HAVE ELECTED THE WRONG
CANDIDATE.
THE SAME WOULD HAPPEN IN THE
POST CERTIFICATION AUDITS IN
THAT ELECTION.
IT SHOWS THE WRONG CANDIDATE
WAS ELECTED?
WHAT HAPPENS?
SOMEBODY WILL FILE A
PETITION FOR MANDAMUS OR A
PETITION FOR PROHIBITION TRYING
TO PROHIBIT YOU FROM CERTIFYING
THE WRONG RESULT.
WELL SOMEBODY -- WELL, IT
WOULD ALREADY BE CERTIFIED
UNDER THE ORDINANCE.
YES, IF SOMEBODY WERE TO TRY TO
DO THAT, THAT WOULD BE A --
THAT WOULD BE A TRADITIONAL
ELECTION CONTEST BECAUSE THE
AUDIT --
WELL, GETTING BACK TO THE
CHIEF JUSTICE'S ISSUE WITH THE
JUDICIARY GETTING INVOLVED IN
THE, IN EVERY ELECTION PROCESS.
WELL, THAT'S SOMETHING THAT
SHOULD NOT HAPPEN.
AND THAT'S SOMETHING THAT DID
HAPPEN IN THE SECOND DCA WHICH
THEY -- WHEN THEY WROTE THE
ELECTION -- WROTE THE ELECTION
CODE IN MY VIEW TO PUT A
STATEMENT OF INTENT IN THERE
THAT'S NOT OTHERWISE IN THERE.
FOR PEOPLE WHO WANT AUTHORITY
AND POWER TO OVERALL ELECTION
LAWS IT'S NOT IN THE LAW.
IN FACT THE LAW INFORMS LOCAL
GOVERNMENTS TO ACT TO SELECT
THEIR OWN VOTING SYSTEMS SO
ESPECIALLY WHEN WE HAVE A HOME
RULE COUNTY AND THIS IS A VERY
IMPORTANT CASE FOR EFFICACY OF
HOME RULE AUTHORITY.
IF THIS COURT IS GOING TO
AFFIRM THE SECOND DC A, ANY
NUMBER OF HOME RULE CHARTER
AMENDMENTS COULD BE SUBJECT TO
ATTACK BY COURTS FINDING THAT
THE LEGISLATURE REALLY SHOULD
HAVE BEEN MORE, UNIFORM.
THAT THEY MUST HAVE MEANT TO
PREEMPT.
AND WHEN YOU'RE DEALING WITH
THE ELECTION CODE AND THE
CIRCUMSTANCES OF THE 2000
ELECTION, WHEN THE OPPORTUNITY
TO PREEMPT WAS HANDED TO THEM
ON A SILVER PLATTER, HERE IT
IS, LOOK AT ALL THE PROBLEMS
LOCALLY.
WHAT DID THEY DO?
THEY BANNED PUNCH CARD BALLOTS.
AND THAT'S THE EXTENT THAT THEY
LIMITED THE LOCALITIES.
THEY ALSO SAID NO VOTE SHALL
BE RECEIVED OR COUNTED IN ANY
ELECTION EXCEPT AS PRESCRIBED
BY THIS CODE.
THAT'S CORRECT, YOUR HONOR,
BUT THIS IS NOT A VOTE COUNT.
IT IS NOT A COUNT OF VOTES.
IT DOES NOT DETERMINE THE --.
IT IS RECEPTION OF VOTES,
RECEIVING VOTES.
ISN'T THE WHOLE SYSTEM THAT YOU
USE, THAT'S HOW YOU RECEIVE THE
VOTES?
WELL, I BELIEVE THE
RECEPTION OF THE RECEIVING OF
VOTES IS THE ACTUAL ACT THAT
THE VOTER WALKS THROUGH AND
PUTS HIS BALLOT IN THE OPTICAL
SCANNER AND FILLS IN THE, IN
THE CIRCLES.
IT'S, IT'S NOT A, IT'S NOT THE
SORT OF PROCEDURE AT LEAST IN
MY VIEW THAT WE'RE, THAT WE'RE
TALKING ABOUT HERE.
SO YOU'RE SAYING THAT ONLY
THING THAT THE LEGISLATURE
CARED ABOUT WHEN IT WROTE THIS
SAYING THAT ONLY AS PRESCRIBED
BY THIS CODE IS THE ACTUAL
PHYSICAL WAY THAT YOU RECEIVE
THE VOTES?
AND THE WAY YOU COUNT THEM.
AND THE WAY YOU COUNT THEM, AND
AS WE TALKED ABOUT, THEY
REWROTE THE RECOUNT PROVISIONS
TO KIND OF DOVE, DOVETAIL WITH
THAT, BUT IF WE UPHOLD THE
MAJORITY OPINION OF THE SECOND
DCA, THEN LOCAL CHARTER
GOVERNMENTS ARE GOING TO BE
POWERLESS TO CHECK THE ACCURACY
OF, OF THEIR MACHINES AT A TIME
WHEN IT'S REALLY, REALLY
PERTINENT.
YOU'RE WELL OVER YOUR TIME,
BUT I MEAN WE ARE TRYING TO GET
TO THE BOTTOM OF THIS.
THESE ARE IMPORTANT QUESTIONS
SO WE WILL GIVE YOU A COUPLE
MINUTES REBUTTAL.
ALL RIGHT.
THANK YOU VERY MUCH.
RESPONSE.
GOOD MORNING,
PETER ANTONACCI.
WITH ME, COUNSEL FOR SUPERVISOR
DENT.
I HAVE A BASING SORT OF THE
FUNDAMENTAL QUESTION ON THIS
PREEMPTION ISSUE.
IF THIS CHARTER AMENDMENT HAD
ONLY SAID NO VOTING SYSTEM
SHALL BE USED IN SARASOTA
COUNTY THAT DOES NOT PROVIDE A
VOTER VERIFIED A BALLOT --
PAPER BALLOT, IS IT YOUR
POSITION THAT BECAUSE THERE IS
IMPLIED PREEMPTION THAT A
COUNTY COULD NOT VOTERS OF A
COUNTY COULD NOT DIRECT THAT
THEY WANT IT --, GREATER DEGREE
OF ACCURACY THAN THE, THAN IS
REQUIRED UNDER THIS STATE LAW?
IT IS, JUSTICE PARIENTE.
SO IN OTHER WORDS THEY COULD
NOT HAVE REQUIRED A VERIFIED
PAPER BALLOT?
CORRECT.
AND YOU ALSO WOULD SAY THAT
THEY COULD NOT PROVIDE FOR A
GREATER ACCESS TO THE DISABLED
THAN THE, THAN THE STATE
ALLOWED AT THE TIME?
IT IS A BIT -- CORRECT, IT
IS ABOUT THE ALLOCATION OF, OF
POWER BETWEEN THE LOCAL
GOVERNMENT AND THE STATE
GOVERNMENT.
SO WHAT IS -- YOU SEE, I
MEAN IT WOULD BE SO SIMPLE AND
THIS IS -- I HAVE AGAIN, I, I
BELIEVE WE SHOULD HAVE UNIFORM
VOTING THROUGHOUT THE COUNTRY,
YOU KNOW, I CANNOT BELIEVE THAT
WE'RE STILL WITH ALLOWING
COUNTIES TO PICK THEIR VOTING
SYSTEM AND, YOU KNOW, WHERE YOU
MIGHT HAVE ONE MORE ACCURATE
THAN THE OTHER BUT THAT'S NOT
WHAT WAS DONE AFTER THE 2000
ELECTION.
THERE WAS EVER A TIME THAT THE
LEGISLATURE WOULDIVE SAID WE'RE
PREEMPTING, WE ARE SPECIFYING
AND YOU CAN'T DEVIATE, THAT WAS
THE TIME.
AND HOW DO WE AS A, AS A COURT
DECIDE THAT THAT -- MAYBE THAT
WAS A GOOD IDEA THEY SHOULD'VE
DONE IT BUT SAY THEY MUST'VE
DONE THAT.
IF THERE WAS ANY CONCERN
ABOUT THE HOLDING OF THE SECOND
DISTRICT, BELOW, THE
LEGISLATURE WOULD BE HERE TODAY
COMPLAINING LOUDLY.
THAT THE SECOND DCA GOT IT
WRONG.
I EXPECT IT WAS PRETTY BUSY
LAST SESSION WITH THE BUDGET.
YOU KNOW, TO SAY THAT THEY WERE
GOING TO CORRECT AN OPINION, I
THINK BUT -- WHAT I'M ASKING
YOU -- SO EXPLAIN TO ME WHY A
COUNTY COULDN'T SPECIFY A
GREATER ACCURACY THAN THE, THAN
IS ALLOWED OR REQUIRED UNDER
GENERAL LAW?
BECAUSE UNIFORMITY IS WHAT'S
REQUIRED AND THE LEGISLATURE
HAS DETERMINED THROUGH ITS
DELEGATION OF AUTHORITY TO THE
SECRETARY OF STATE AUTHORITY
THAT WAS ENHANCED IN 2005
JUSTICE PARIENTE, FOR THE FIRST
TIME THE LEGISLATURE IN THEIR
DESIRE TO ENHANCE UNIFORMITY
GAVE THE SECRETARY ADDITIONAL
AUTHORITY BY GIVING THE
SECRETARY CAUSES OF ACTION TO
GO INTO COURT TO ENFORCE HIS
INTERPRETATION OF THE RULES AS
AGAINST ANY SUPERVISOR THAT DID
NOT AGREE WITH HIM.
SO THAT WAS AN EXAMPLE TO YOUR
QUESTION ABOUT WHAT HAS
HAPPENED UNIFORMITY-WISE SINCE
2000.
THE LEDGISLATURE HAS AMENDED
THE LEGISLATURE CODES SEVEN
TIMES IN AN EFFORT TO BRING
ABOUT UNIFORMITY, AND THAT WAS
ONE OF THE KEY PIECES OF
LEGISLATION IN 2005 TO GIVE THE
SECRETARY THAT POWER TO ENFORCE
HIS INTERPRETATION OF THE
RULES.
HOW MANY DIFFERENT KINDS OF
VOTING SYSTEMS CAN THE LOCAL
GOVERNMENTS HAVE AROUND THE
STATE?
UNDER THE CURRENT STATUTORY
SCHEME.
I BELIEVE THERE ARE THREE.
OKAY, AND WHY ARE THERE
THREE?
IF WE'RE GOING TO HAVE
UNIFORMITY?
BECAUSE I ASSUME ALL THREE HAVE
THEIR BENEFITS AND HAVE THEIR
ISSUES.
THAT IS, THAT IN ANY CRITIQUE
OF THOSE THREE THAT SOME OF
THEM ARE GOING TO HAVE
WEAKNESSES AND SOME OF THEM ARE
GOING TO HAVE STRENGTHS AND SO
WE START OFF WITH A LACK OF
UNIFORMITY.
BECAUSE YOU HAVE THREE
DIFFERENT SYSTEMS.
SO THE ISSUE THAT I'M HAVING
DIFFICULTY WITH IS THAT WHY IN
THE WORLD WOULD EITHER THE
LEGISLATURE OR THE SECRETARY OF
STATE OR ANYBODY OBJECT TO
LOCAL ELECTIONS OFFICIALS
TRYING TO BE SURE THAT THEIR
SYSTEM OPERATES AS INTENDED AND
THAT THEY GET IT RIGHT?
WHY, WHAT -- WHERE IS THE, THE
CONCEPT OF NOT ALLOWING LOCAL
GOVERNMENT TO SAY WE AGREE WITH
YOU, LEGISLATURE, AND SECRETARY
OF STATE, AND WE WANT TO COMPLY
WITH EVERYTHING THAT YOU'RE
DIRECTING US TO DO BUT IN
ADDITION TO THAT, WE WANT TO GO
THE EXTRA MILE AND BE ABLE TO
ASSURE OUR LOCAL CITIZENS THAT
WE GOT IT RIGHT, THAT THEY'RE
AWARE OF THIS ENORMOUS LITANY
OF ISSUES THAT YOU JUST A
PARTIAL AMOUNT OF REVEALED IN
THE, IN THE 2000 ELECTIONS
SCENARIO.
BUT WHERE THE BASIS, THE
RATIONAL OF SAYING TO LOCAL
GOVERNMENT SAYING NO WE DON'T
WANT YOU TO CHECK IN ANY WAY.
WE DON'T WANT YOU TO PUT A
GUARD OUT FRONT TO BE SURE THAT
THERE IS ACTUALLY A HUMAN BODY
THAT SHOWS UP, YOU KNOW, TO
VOTE.
WE DON'T WANT YOU TO DO ANY
EXTRA SAFEGUARDS, ANY EXTRA
THINGS TO ENSURE YOUR LOCAL
PEOPLE THAT WE GOT IT RIGHT.
NOW WHERE IS THE, I'M HAVING
DIFFICULTY WITH PROHIBITED
LOCAL GOVERNMENT FROM DOING
THAT.
WELL, I'M, I'M INTERPRETING
YOUR QUESTION IN TWO WAYS.
ONE, THAT HAS TO DO WITH THE
PURCHASE OF THE MACHINES, THE
SYSTEM.
AND THE OTHER HAS TO DO WITH
ACCURACY OF THE SYSTEMS.
RIGHT, THE INTEGRITY OF THE
ELECTION SYSTEM AND WHAT THE,
THE THIS THING CLEARLY DOES IS
SAY WE WANT TO HAVE THIS EXTRA
CHECK, YOU KNOW, THAT, ON THE
THING.
AND SO WHERE IS THERE A POLICY
THAT SAYS NO, WE DON'T WANT ANY
EXTRA CHECKS.
WELL, IF YOU WERE TO TAKE
THIS ORDINANCE AS AN EXAMPLE
JUSTICE ANSTEAD, THIS ORDINANCE
INTERFERES WITH THE COUNTING,
RECOUNTING, AND CERTIFICATION
OF VOTES.
AND IF YOU ARE INTERFERING WITH
THOSE THREE CRITICAL THINGS,
YOU ARE -- HOW DOES IT
INTERFERE WITH THE
CERTIFICATION IF OBVIOUSLY THE
DATES FOR CERTIFICATION AND THE
REQUIREMENT FOR CERTIFICATION
ARE ENFORCED?
THAT IS THAT NO, THIS CANNOT
DELAY CERTIFICATION.
THAT, THAT ALL IT IS IS A
LITTLE EXTRA THING OVER HERE.
IT'S SORT OF LIKE SAYING, YOU
KNOW, WE'RE GOING TO GET THE
OPINION OF THE COUNTRY'S
FOREMOST ELECTION EXPERT AND
JUST HAVE IT SO THAT WE CAN
ASSURE OUR LOCAL PEOPLE WE'VE
GONE THIS EXTRA MILE.
HOW DOES IT INTERFERE AS LONG
AS ALL THE REGULATIONS AND THE
STATE LAWS ARE ENFORCED?
FOR THE VERY REASON THAT
JUSTICE CANTERO POINTED OUT
BECAUSE IT WILL HAPPEN AS NIGHT
FOLLOWS DAY THAT THERE WILL BE
INCONSISTENT RESULTS AND THOSE
INCONSISTENT RESULTS WILL BE
KNOWN AND MANIFEST BEFORE
CERTIFICATIONS.
WELL, THAT SEEMS TO ME TO BE
A POLICY OF SEE NO EVIL, HEAR
NO EVIL, SPEAK NO EVIL.
THAT IS THAT IF THERE ARE
PROBLEMS THERE, WE DON'T WANT
TO KNOW, AND I, WHERE IS THE
RATIONALE THAT WE DON'T WANT TO
KNOW?
QUITE TO THE CONTRARY.
THE LEGISLATURE THIS YEAR HAS
PROVIDED FOR COMPREHENSIVE
AUDITS.
UNDER THE SUPERVISION OF THE
SECRETARY, WITH THE SECRETARY
PROVIDING FOR THE PROCEDURES
AND THOSE AUDITS ARE TO TAKE
PLACE IMMEDIATELY AFTER AN
ELECTION.
MAYBE I'M -- CAN I GO BACK
TO SOMETHING BECAUSE WE ARE
AGAIN DEALING WITH TWO ISSUES.
IF THERE ARE PROVISIONS THAT
ARE IN CONFLICT, THEN THAT IS A
WELL KNOWN THEORY OF JUDICIAL
INVOLVEMENT.
YOU LOOK AND SAY IF THERE'S A
CONFLICT WITH THE PROVISION,
THEN WE WOULD, WE WOULD STRIKE
THAT PROVISION.
BUT I, I JUST WOULD, LET ME
AGAIN GO BACK TO MY BASIC
QUESTION BECAUSE I GUESS I
THOUGHT I WAS GOING TO GIVE THE
EASIEST EXAMPLES THAT IF THE
VOTERS OF SARASOTA COUNTY HAD
WANTED AS MANY PEOPLE HAD SAID
WAS NECESSARY, VERIFIED PEOPLE
BALLOTS, AND THEY SAID THAT'S A
REQUIREMENT.
HOW WAS THAT GOING TO BE
PREEMPTED BY THE ELECTION CODE?
HOW WAS IT THAT THEY COULD NOT
HAVE PROVIDED THAT UNDER WHAT
THEORY AGAIN OF PREEMPTION?
IS THERE SHOWN THAT THE
LEGISLATURE INTENDED NOT TO
ALLOW A COUNTY BEFORE THE
STATUTE WAS AMENDED TO HAVE
THAT PAPER TRAIL?
BECAUSE THE LEGISLATURE
DELEGATED THAT RESPONSIBILITY
TO THE BOARD OF COUNTY
COMMISSIONERS.
AND AS THIS COURT SAID IN THE
WILSON CASE, THE BOARD OF
COUNTY COMMISSIONERS WHEN THAT
TERM IS USED BY THE
LEGISLATURE, IT HAS A VERY
DIFFERENT MEANING THAN THE
COUNTY.
THE BOARD OF COUNTY
COMMISSIONERS HAS BEEN
DELEGATED BY THE LEGISLATURE
PRIOR TO THE AMENDMENT ALL OF
THE DISCRETION TO CHOOSE
AMONGST THE MENU AND IF
SARASOTA COUNTY BY -- SIMPLY
DECIDED NO WE'RE GOING -- NOT
GOING TO ALLOW OUR COUNTY
COMMISSION TO DO THAT, THAT IS
NOT ONLY A DIRECT CONFLICT.
THAT IS COLLIDING WITH THE --
SO NOW WE'RE, NOW I'M
UNDERSTANDING SOMETHING THAT I
MAYBE WASN'T UNDERSTANDING
BEFORE.
IF THE COUNTY COMMISSION HAD
REQUIRED THE PAPER BALLOT,
YOU'RE SAYING THAT THAT WOULD
NOT HAVE CONFLICTED WITH THE
ELECTION CODE?
IF THE COUNTY COMMISSION HAD
CHOSEN PAPER BALLOTS,
CERTAINLY.
OKAY.
SO IT'S BECAUSE THE VOTERS OF
THE COUNTY THROUGH THE CHARTER
AMENDMENT SAID IT'S REQUIRED
THAT THAT THEN SAYS THAT IT IS,
THAT THAT WAS PREEMPTED?
I -- I THINK IT'S --
I'M NOT SURE I -- I'M STILL
TRYING -- YOU'RE SAYING THAT
THE VOTERS THEMSELVES COULDN'T
REQUIRE A GREATER DEGREE OF
INTEGRITY BECAUSE THEY SAID
THEY WANTED IT THEN THEIR
COUNTY COMMISSION T. HAD TO BE
THAT THE COUNTY COMMISSION
WANTS LESS, THAT THEY'RE THE
ONLY ONES THAT CAN MAKE THE
DECISION.
NO.
I APOLOGIZE.
IT'S THE LEGISLATURE THAT SAID
THE BOARD OF COUNTY COMMISSION
HAVE ALL THE OPTIONS THAT THE
SECRETARY OF STATE GIVES IT --
BECAUSE IT'S IN THE CHARTER
THAT IT IS, IT'S IN CONFLICT AS
OPPOSED TO, SEE THAT'S
DIFFERENT TO ME THAN THERE IS
PREEMPTION.
PREEMPTION WOULD SAY THAT THE
LOCAL -- LOCALITIES, WHETHER
THEY DID IT THROUGH THE COUNTY
COMMISSION OR ANYONE COULDN'T
DO SOMETHING.
NOW I DIDN'T REALIZE THE
ARGUMENT WAS IT WAS THE METHOD
BY WHICH THEY, IN, IMPOSED
THESE ADDITIONAL REQUIREMENTS
THAT'S UNCONSTITUTIONAL.
LET ME MAKE MYSELF CLEAR.
THE BOARD OF COUNTY
COMMISSIONERS IN ANY COUNTY CAN
CHOOSE AMONGST THE VARIOUS
OPTIONS THAT THE SECRETARY
GIVES IT WITH RESPECT TO
PURCHASING A SYSTEM.
THAT IS CLEAR.
SO IT ALSO REQUIRES THE
BOARD OF COUNTY COMMISSIONERS
COULD REQUIRE PREAND POST
CERTIFICATION ODD ISN'T.
-- AUDITS?
NO, BECAUSE THAT IS A MATTER
OF PREEMPTION.
THAT IS A MATTER OF CONFLICT
WITH STATE LAW.
THERE ARE CERTAINLY THINGS
IN THE CODE, IN THE STATE CODE
DELEGATED TO BOARD OF COUNTY
COMMISSIONERS AND CERTAIN THAT
ARE NOT.
IS THAT WHAT YOU ARE SAYING?
WELL --
WHAT ARE SOME THINGS
DELEGATED TO THE BOARD OF
COUNTY COMMISSIONERS.
I THINK THE BEST EXEMP IS
THAT THE BOARD OF COUNTY
COMMISSIONERS IS DELEGATED THE
AUTHORITY TO DRAW PRECINCTS, AN
ACT WHICH REQUIRES PECULIAR
KNOWLEDGE OF LOCAL FACTS AND
THOSE ARE -- THAT'S A
RESPONSIBILITY THAT IT'S
CLEARLY DELEGATED IN THE CODE.
IT'S DONE IN CONJUNCTION WITH
THE SUPERVISOR.
IT'S NOT THE -- THE SECRETARY
DOESN'T HAVE ANYTHING TO DO
WITH IT AND THAT IS A MATTER
WITH THE LEGISLATURE SAYING
HERE IS A DUTY.
CARRY IT OUT.
IF THE COUNTYS HAD THE
AUTHORITY TO DO THAT, ON THEIR
OWN, THERE WOULD BE NO REASON
FOR THE LEGISLATURES TO LAY OUT
SO CLEARLY THAT THE COUNTY
COMMISSION IS THE GROUP THAT IS
RESPONSIBLE FOR DRAWING
PRECINCT MAPS, PRECINCT MAPS
THAT CHANGE VIRTUALLY EVERY
YEAR IN ALL OF THE LARGE
COUNTIES.
ANOTHER GOOD EXAMPLE IS THE
HIRING OF POLL WORKERS.
THE SUPERVISORS WERE REQUIRED
TO HIRE AND TRAIN POLL WORKERS
UNDER THE GENERAL AUTHORITY OF
THIS, OF THE SECRETARY OF
STATE WITH RESPECT TO
PROCEDURES.
BUT THOSE ARE TWO MATTERS THAT
ARE PECULIARLY LOCAL THAT HAVE
SOME LOCAL CONDITIONS THAT
ATTEND TO THEM THAT DON'T HAVE
STATEWIDE APPLICABILITY BUT
THEY'RE UNDER BOTH
CIRCUMSTANCES THE LEGISLATURE
IS SAYING WE ARE SUPERIOR OF
GOVERNMENTAL ENTITY WE ARE
TELLING YOU WHAT THE POLICY IS
AND HOW TO CARRY IT OUT.
I WANT YOU TO GO BACK AND
FINISH YOUR ANSWER TO JUSTICE
ANSTEAD'S QUESTION THAT YOUR
HONOR IN THE MIDDLE OF WITH
REGARD TO THE INTEGRITY OF THE
PROCESS.
HE HAD A QUESTION PENDED AND
YOU WERE IN THE MIDDLE OF IT
THAT I WOULD LIKE YOU TO
ANSWER.
WELL, IT.
IT SIMPLY HAD TO DO WITH
WHAT THE POLICY RATIONAL WAS
BEHIND OBJECTING TO LOCAL
GOVERNMENT OFFICIALS WHETHER
IT'S THE SUPERVISOR OF
ELECTIONS OR WHETHER IT'S THE
COUNTY COMMISSION OR WHETHER
IT'S THE VOTERS.
IN THE PARTICULAR COUNTY AS WE
HAVE IN THIS INSTANCE DOING
SOMETHING THAT IS AN EXTRA
ENSURER OF THE INTEGRITY OF THE
ELECTIONS IN THAT, IN THAT
COUNTY.
WELL WHO'S TO SAY, JUSTICE
ANSTEAD.
I, I TAKE WHAT MY COLLEAGUE
MR.^SHULTS HAS, THE EXAMPLE
HE'S GIVEN, WHAT IS, WHAT HAS
MORE INTEGRITY IS GOING MOO
MEAN SOMETHING DIFFERENT IN
LAFAYETTE COUNTY THAN PERHAPS
IT DOES IN PALM BEACH COUNTY.
AND AS WE HAVE SEEN
THROUGHOUT FLORIDA, THAT'S
EXACTLY THE WAY FLORIDA'S
ELECTION SYSTEM SEEMS TO
OPERATE, THAT IS THAT SOME
SUPERVISOR OF ELECTIONS ARE
PROACTIVE IN ENSURING THE
INTEGRITY OF THE ELECTIONS
SOME OF THEM FEEL IT'S A PRO
FORMA THING AND THEY'LL -- THAT
KIND OF THING LIKE THAT, BUT
WHERE IS THE OBJECTION TO THOSE
EITHER PUBLIC OFFICIALS OR THE
PUBLIC TELEPHONE AND THE
COUNTERY OF WANTING -- PUBLIC
ITSELF AND THE COUNTY OF
WANTING TO HAVE AN EXTRA CHECK?
OKAY.
SO LONG AS IT DOESN'T INTERFERE
WITH THE COUNTING AND
CERTIFICATION OF THE BALLOTS.
IT --
SO IT'S ALL RIGHT AS LONG AS
IT DOESN'T INTERFERE?
SO LONG AS IT DOESN'T
INTERFERE AFTER THE
CERTIFICATION OF THE BALLOTS.
BECAUSE THAT IS WHAT THE
LEGISLATURE HAS SAID.
LET ME -- LET ME ASK YOU
THIS QUESTION.
LET'S SUPPOSE THAT THE
COMPANIES THAT SUPPLY YOU KNOW,
THAT WE DO HAVE SOME KIND OF
MACHINES OR COMPUTERS OR
SOFTWARE OR SOMETHING, THAT IS
A MATTER OF, YOU KNOW, THE, THE
REASON WE WANT YOU TO BUY OUR
SYSTEM IS BECAUSE IMMEDIATELY
AFTER THE ELECTION, WE HAVE OUR
TECHNICIANS SWEEP INTO YOUR
COUNTY AND CONDUCT AN AUDIT AND
ISSUE YOU A REPORT AND, AND
THEY ESSENTIALLY DO THE SAME
THING THAT, THAT THE VOTERS OF
SARASOTA COUNTY HAVE VOTED TO
DO.
WOULD THAT BE AGAINST THE LAW?
IF A VOTING MACHINE COMPANY
WERE TO CONTRACT WITH THE
SUPERVISOR TO SERVICE THEIR
EQUIPMENT WITH RESPECT TO THE
ACCURACY AFTER THE FACT, I
THINK THAT WOULD BE PERFECTLY
ACCEPTABLE.
SO --
SO A PRIVATE COMPANY COULD
DO THIS SAME AUDIT AND REPORT
TO THE COUNTY COMMISSION.
NOT THE SAME AUDIT.
SUPERVISOR OF ELECTIONS OR
WHATEVER, AND, AND THAT WOULD
BE NO PROBLEM?
THAT WOULD NOT RUN AFOUL WITH
THE LAW.
NOT THE SAME AUDIT BECAUSE
THE AUDITS THAT --
WHY COULDN'T --
BECAUSE THE AUDITS THAT ARE
LAID OUT IN THE SAFE AMENDMENT
INTERFERE WITH THE COUNTING,
RECOUNTING, AND CERTIFICATION
OF BALLOTS.
AS, AS, I BELIEVE JUSTICE WELLS
POINTED OUT, WHEN YOU'RE GOING
TO HAVE DUELING NUMBERS, IT'S
GOING TO THROW A MONKEY WRENCH
INTO EVERY OUTCOME, EVERY
CERTIFICATION WHEN YOU HAVE AN
AUDIT --
SO A PRIVATE COMPANY
COULDN'T DO THIS?
NOT BEFORE THE CERTIFICATION
OF, OF THE VOTE, NO.
CERTAINLY NOT.
BECAUSE THAT WOULD INTERFERE
WITH THE LEGISLATIVE SCHEME.
THAT WOULD INTERFERE WITH THE
CANVASSING BOARD.
SO WE DON'T, WE DON'T WANT
TO CHECK ININTEGRITY OR THE
ACCURACY OF THE SYSTEMS.
THE LEGISLATURE --
IS THAT WHAT THE
LEGISLATURE'S SAY.
THE LEGISLATURE HAS SAID.
IS IT THE LEDGISLATURE OR
THE SECRETARY OF STATE?
NO, THE LEGISLATURE HAS SAID
IN 101591 THAT AUDITS, WHICH
ARE NOT RECOUNTS, THOSE --
IT WAS THE SECRETARY OF
STATE UNDER THE STATUTORY
SCHEME NOW?
THAT PICKS OUT HOW MANY
DIFFERENT SYSTEMS THE COUNTIES
CAN CHOOSE FROM?
YES, THERE IS A --
SO THE SECRETARY OF STATE
COULD PICK OUT 20 DIFFERENT
WAYS.
IS THAT CORRECT.
ASSUMING THAT THEY MET THE
STANDARDS CREATED BY THE
SECRETARY CREATED BY RULE.
YOU SAID THAT THERE WERE
THREE DIFFERENT SYSTEMS THAT
HAVE BEEN APPROVED.
AT THIS POINT, YES.
DO YOU KNOW IF THERE IS A
COMMON THEME IN THOSE THREE
SYSTEMS?
WHY THOSE WERE APPROVED.
WELL, MY COLLEAGUE IS
CORRECTING ME.
THERE ARE THREE DIFFERENT
MANUFACTURERS OF THE SAME
SYSTEM.
BUT I THINK WE GENERALLY THINK
OF THEM AS DIFFERENT SYSTEMS
BECAUSE THEY OPERATE SOMEWHAT
DIFFERENTLY BUT THEY ALL YIELD
A PAPER BALLOT.
IT REALLY ABOUT SIX SYSTEMS
FROM THREE COMPANIES, CORRECT?
I MEAN, SOME OF THESE COMPANIES
THAT HAVE BEEN SELECTED REALLY
HAVE THAN ONE KIND OF SYSTEM SO
WE ARE TALKING ABOUT THREE
SYSTEMS BUT I THINK IT WAS
SOMEWHERE I READ THERE WAS
REALLY SIX SYSTEMS THAT ARE
BOUGHT HERE.
I DON'T BELIEVE SO, JUSTICE
QUINCE.
I BELIEVE THERE ARE THREE PAPER
BALLOT KINDS OF SYSTEMS NOW
THAT DIFFERENT MANUFACTURERS
OFFER.
AND THE -- AND THE SECRETARY
HAS CERTIFIED.
LET ME ASK YOU THIS BECAUSE
WHAT CONCERNS ME MOST ABOUT THE
CHARTER AMENDMENT AND THE
STATTUTE IS THE WHOLE
AUDITING PROCESS.
AND SO TELL ME WHAT IS YOUR
INTERPRETATION OF WHAT THIS
CHARTER AMENDMENT SAYS ABOUT
POST ELECTION AUDITS?
AS I READ IT, IT SEEMS TO SAY
THAT YOU HAVE TO HAVE IT WITHIN
24 HOURS OF THE ELECTION OR
SOMETHING TO THAT EFFECT I
BELIEVE AND SO HOW DOES THAT
SQUARE WITH ANY KIND OF AUDIT
PROVISIONS THAT HAVE BEEN
PROMULGATED BY THE SECRETARY OF
STATE?
WELL, THEY HAVE BEEN
PROMULGATED BY THE LEGISLATURE
AND THE SECRETARY'S IN THE
PROCESS OF PROMULGATING RULES
TO IMPLEMENT THEM.
BUT THOSE AUDITS OCCUR AFTER
THE CANVASSING BOARD HAS ACTED.
AND THEY ARE IN THE NATURE OF
AFTER ACTION REVIEWS.
FOR INTEGRITY PURPOSES.
WHEN WERE THOSE AUDIT
PROVISIONS ENACTED INTO STATE
LAW?
THEY WERE ENACTED IN 20007.
SO THOSE COULD BE USED
CERTAINLY FOR AN ELECTION
CONTEST?
ACTUALLY, THE TIMING OF
THEM, I'M GLAD YOU ASKED THAT
BECAUSE THE TIMING OF THEM IS
SET UP SO THAT THE RESULTS OF
THE AUDIT ARE AVAILABLE FOR
ANYONE WHO HAS FILE ADTEAMLY
CONTEST.
SO ON MY QUESTION, AND
YOU'RE ALMOST OUT OF TIME, IS
THE SAME ARGUMENT TO BE MADE,
YOU KNOW, SO MANY ELECTIONS ARE
LOCAL NOW, YOU KNOW, YOU HAVE
COUNTY,, YOU KNOW, PARTICULAR
THINGS.
DOES THE STATE HAVE THE SAME
INTEREST IF THIS IS ONLY TO BE
SOMETHING THAT WAS USED AND
IMPLEMENTED WITH RESPECT TO
ELECTIONS THAT ONLY AFFECTED
SARASOTA COUNTY?
IT'S INTERESTING THAT, THAT
THE LEGISLATURE HAS GIVEN SOME
ADDITIONAL AUTHORITY TO
MUNICIPALITIES.
BECAUSE A MUNICIPAL ELECTION
WILL NEVER AFFECT ANY OTHER
POLITICAL SUBDIVISION OTHER
THAN ITSELF.
BUT EVERY TIME SARASOTA COUNTY
GOES TO THE POLLS AND THERE IS
ANY KIND OF STATEWIDE
ELECTION GOING ON, CERTAINLY IN
ANY GENERAL ELECTION, WHAT
HAPPENS IN SARASOTA COUNTY
HAPPENS IN WEST PALM, BROWARD,
ESCAMBIA AND SO ON.
SO THE NEED FOR UNIFORMITY AND
THE NEED TO NOT MEDDLE IN THE
AREA, THE SENSITIVE AREA OF
COUNTING VOTES, THAT SARASOTA
COUNTY HAS NO GREATER INTEREST
IN THAN ANY OTHER COUNTY.
YOUR OPPONENT SEEMS TO
SUGGEST THAT THERE IS A
MATERIAL DIFFERENCE WITH REGARD
TO HOME RULE.
SITUATIONS WITH THE CHARTER AND
SO WOULD YOU ADDRESS THAT.
WELL, I DISAGREE, YOUR
HONOR.
AND THAT IS BECAUSE --
I ASSUME THAT.
[LAUGHTER]
THAT IS WHY.
RESPECTFULLY.
WITH MY FRIEND MR.^SHULTS.
SOME REASONS.
AND THAT IS BECAUSE THE HOME
RULE, THE GRANT OF HOME RULE
AUTHORITY IN THE CONSTITUTION
IS VERY CLEAR.
CHARTER COUNTY CAN GO AS FAR AS
IT WANTS SO LONG IS THERE IS NO
CONFLICT WITH STATE LAW AND AS
THE SECOND DCA FOUND, THERE IS
PREEMPTION HERE.
IN THIS VERY NARROW AREA THAT
THE COURT LAID OUT, I MEAN THE
COURT DID NOT SAY THE ENTIRE
ELECTION CODE PREEMPTS
EVERYTHING THAT ANY COUNTY OR
ANY CHARTER COUNTY OR EVEN A
MUNICIPALITIES MAY WANT TO DO.
NEEDS TO GO ITEM BY ITEM
WITH REGARD TO THE ANALYSIS.
THAT'S, THAT'S CERTAINLY THE
SECRETARY'S POSITION THAT YOU
HAVE TO LOOK VERY CAREFULLY AT
WHATEVER IT IS THE LOCAL
GOVERNMENT PRUPORTS TO DO.
SO THERE'S NOT BLANKET
PREEMPTION EVEN IMPLIED BUT
THERE IS ONLY SELECTIVE
PREEMPTION ON THOSE THINGS THAT
ARE IN ACTUAL CONFLICT RATHER
THAN AN ENTIRE AREA.
NO, THAT'S NOT WHAT THE DCA
FOUND.
THE DCA FOUND IMPLIED
PREEMPTION.
AS --
THE ENTIRE.
AS TO THE FIVE AREAS THAT IT
LAID OUT.
COUNTING RECOUNTING,
CANVASSING, AND CERTIFICATION
OF BALLOTS.
ISN'T IT BETTER, SEE I GUESS
IN THAT WAY, THAT'S, THAT'S,
NOW THAT'S CONFUSION FUSING
BECAUSE I THOUGHT IF YOU HAVE
IMPLIED PREEMPTION IT HAD TO
APPLY TO EVERYTHING THAT'S IT
SEEMS TO ME THE BETTER WAY TO
ANALYZE THIS AND YOU MAY BE
RIGHT ON THE AUDITS OR MAYBE
EVEN ON ALL FIVE AREAS IS, IS
THAT IN ACTUAL CONFLICT.
BECAUSE OTHERWISE, AS YOU SAID,
YOU KNOW, IT'S NOT BECAUSE OF
THE 150-PAGE CODE THAT THERE IS
PREEMPTION WE HAVE GOT TO LOOK
AT THE AREA AND I HAVE READ THE
SECOND DISTRICT OPINION AS
BROADER AS SAYING WHEN THERE IS
APPLIED PREEMPTION, IT MEANS
LOCAL GOVERNMENTS CANNOT ACT IN
THIS AREA, BUT YOU ARE NOW
SAYING NO WE HAVE GOT TO LOOK
AT THE AREAS THAT THEY'VE
ADDRESSED.
THE QUESTION THAT WAS
CERTIFIED TO THE COURT INVOLVED
ONLY THOSE FIVE AREAIAS WITH
RESPECT TO THE PREEMPTION
DOCTRINE.
AND THAT WOULD BE OUR POSITION
AS WELL.
CERTAINLY FOR EXAMPLE, SOME
LOCAL GOVERNMENTS HAVE SOME
CAMPAIGN FINANCE KINDS OF
ADDITIONAL REGULATIONS AND
THOSE PERHAPSES COULD STAND
SCRUTINY.
I DON'T KNOW.
THOSE AREN'T BEFORE THE COURT
AND THOSE WERE NOT BEFORE THE
SECOND DCA.
THANK YOU, YOUR HONOR.
THANK YOU.
YOU'VE USED YOUR TIME.
MR.^LABASKY.
ARE YOU GOING TO ARGUE,
ALSO?
YOUR HONOR, JUST I REALIZE
OUR TIME IS GOING YOUR HONOR
BUT JUST MOMENTARILY, RONALD
LABASKY ON BEHALF OF THE
SUPERVISOR OF ELECTIONS IN
SARASOTA COUNTY I WOULD LIKE TO
KEY ON WHAT JUSTICE CANTERO
ASKED MR.^ANTONACCI CONCERNING
1010410 WHICH HAS BEEN IN THE
CODE FOR MANY YEARS LONG BEFORE
THIS ORDINANCE WAS PROPOSED AND
PASSED IN SARASOTA COUNTY.
BUT I THINK THAT IN RESPONSE IN
CONJUNCTION WITH THAT, THE
COURT REALLY SHOULD ALSO LOOK
AT ONE OF THE AUTHORITIES THAT
ARE PROVIDED TO MUNICIPALITIES.
THERE IS IN 1036.3 SIR, 605 A
SPECIFIC ACKNOWLEDGMENT THAT
MUNICIPALITIES MAY ENACT
CERTAIN PROVISIONS BY ORDINANCE
AS LONG AS THEY DO NOT CONFLICT
WITH THE CODE.
SO THERE'S SPECIFIC AUTHORITY.
THERE'S NO RECIPROCAL AS IT
RELATES TO COUNTIES OR CHARTER
COUNTIES AND AS IT RELATES TO
SUPERVISOR OF ELECTIONS AND THE
CANVASSING BOARD WHICH IS
RESPONSIBLE FOR HANDLING ALL OF
THE VOTING AND COUNTING OF
THOSE VOTES, THE, THE KEY ISSUE
IS WHAT MR.^ANTONACCI INDICATED
AS WELL.
YOU HAVE --
ISN'T IT REALLY AS JUSTICE
PARIENTE ASKED A LITTLE WHILE
AGO, IS THIS REALLY A MATTER OF
CONFLICT VERSUS PREEMPTION?
BECAUSE CAN'T COUNTIES REALLY
LEGISLATE IN THIS AREA WITHOUT
AS LONG AS THERE IS NO
CONFLICT?
AND IT SEEMS TO ME THAT THAT'S
WHAT WE OUGHT TO REALLY BE
LOOKING AT IS CONFLICT VERSUS
PREEMPTION.
WELL, YOU KNOW, IN FIRST OF
ALL, CONFLICT CLEAR.
THAT'S CLEAR.
IF THERE IS ANY CONFLICT THERE
IS NO POCKET THAT A COUNTY
COULD ENACT AN ORDINANCE TO
THAT EFFECT.
AND SO DO YOU -- ARE YOU
MAINTAINING THAT THERE ARE
PORTIONS OF THIS THAT CONFLICT?
OR ARE YOU MAKING THE OPPOSITE
POSITION.
NO, NO, NO, JUSTICE.
CLEARLY THERE ARE SECTIONS OF
THIS ORDINANCIDARY OR THIS
CHARTER AMENDMENT THAT
CONFLICT.
THE TRIAL COURT EVEN FOUND THAT
AND LEFT IN ITS OWN OPINION
THOSE ISSUES FOR I GUESS
ANOTHER DAY.
HOWEVER, YOU WOULD GET THERE TO
DEAL WITH THOSE CONFLICTS.
BUT IT SEEMS TO ME THAT ONE
PERSON'S CONFLICT IS ANOTHER
PERSON'S PREEMPTION, AND, AND,
AND THAT WHAT I AM CONCERNED
ABOUT IS IT SEEMED TO ME
YOU'RE, THE RESPONDENT'S
POSITION AND TO PUT THE SECOND
DISTRICT WAS SAYING IS THAT
THERE ARE CERTAIN AREAS OF THE
ELECTION CODE WHICH ARE
PREEMPTED.
IS THAT YOUR POSITION?
YES, YOUR HONOR.
AND I THINK IT'S THE KEY AS IT
RELATES TO WHAT THE COURT
DECISIONS HAVE CONSISTENTLY
STATED, WHICH IS IF YOU LOOK AT
WHAT THE LEGISLATURE HAS DONE,
BEGINNING WITH 101041, IT'S
PERVASIVE NATURE OF THAT ENTIRE
ENACTMENT THAT BASICALLY IS
TELLING THOSE COUNTIES 67
COUNTIES AROUND THE STATE WE
WANT YOU TO ACT AND WE ARE
DIRECTING TO YOU, YOU TO ACT IN
A CONSISTENT FASHION.
WE DON'T WANT WHEN WE HAVE AN
ELECTION IN A SENATE STATE
SENATE SEAT OR A HOUSE OF
REPRESENTATIVES SEAT IN
SARASOTA COUNTY THAT EXTENDS
INTO MANATEE COUNTY OR DESOTO
COUNTY TO HAVE THE SUPERVISOR
OF ELECTIONS AND NOW AN
INDEPENDENT NONGOVERNMENTAL
BODY INVOLVED IN THE HANDLING
OF BALLOTS.
AND SO THAT MY, MY VOTE IN
SARASOTA COUNTY, AS A
CANDIDATE, IS BEING HANDLED IN
A DIFFERENT FASHION THAN IT IS
IN MANATEE COUNTY AND MY
CERTIFICATION MAY NOT COME
THROUGH BECAUSE WE HAVE SOME
UNKNOWN SET OF CIRCUMSTANCES
THAT CAUSE CONCERN.
SO IT'S THE AUDITING PART
THAT MOST CONCERNS YOU?
OF THIS, OF THIS CHARTER
AMENDMENT.
THERE -- MOST CERTAINLY IT
IS THE MOST IN CONFLICT AND
CLEARLY NOT INTENDED BY THE
LEGISLATURE.
-- CERTIFIED QUESTION I AM
TRYING TO SEE WHERE THE
REQUIREMENT AND IT MAY BE A
MOOT ISSUE BUT TO ME IT SORT OF
WAS -- STOOD OUT OF REQUIRING
THE PAPER TRAIL.
WHICH FIT INTO ANY OF THOSE
CATEGORIES.
YOU ALSO AGREE THAT THAT WAS
PREEMPTED?
ALLOWING A COUNTY TO MANDATE
THAT THERE BE A PAPER TRAIL?
THROUGH, THROUGH A MANDATE
UPON THE COUNTY COMMISSIONERS
WHO COULD CHOOSE A SYSTEM.
IF YOU -- IF YOU GO BACK IN
TIME, PRIOR TO 2007, WHEN THE
LEGISLATURE BASICALLY SAID WE
ARE GOING TO HAVE ONE TYPE OF
VOTING SYSTEM, WHICH IS GOING
TO BE A PAPER SYSTEM WITH THE
OPTICAL SCAN WHERE YOU COLOR IN
THE LITTLE DONUTS OR MAKE
LITTLE ARROWS BUT WE ARE NOT
GOING TO HAVE TOUCH SCREENS AND
WE ARE GOING TO HAVE PAPER AND
THEN WE HAVE DIFFERENT SYSTEMS
THAT ARE HANDLED DIFFERENTLY.
BUT YOU ARE SAYING THAT THE
CODE WOULD ALLOW DISCRETION ON
THE COUNTY TO DO IT ONE WAY OR
ANOTHER.
BUT NOT ALLOW THE VOTERS TO SAY
WE DON'T WANT DISCRETION.
WE WANT THE MOST, THE SYSTEM
THAT HAS THE MOST INTEGRITY.
YOU'RE SAYING THAT WOULD BE
SOMETHING THE LEGISLATURE
INTENDED TO HAVE HAPPEN TO HAVE
MORE DISCRETION SO THERE COULD
POSSIBLY BE MORE VARIATION
DEPENDING ON WHO'S IN THE
COUNTY COMMISSION?
I THINK --
THAT DOESN'T MAKE SENSE TO
ME.
EXCUSE ME.
I'M SORRY.
I THINK IT WAS THE INTENT OF
THE LEGISLATURE TO ALLOW THE
BOARD OF COUNTY COMMISSIONERS
THE AUTHORITY TO EXAMINE
WHATEVER VOTING SYSTEMS WERE
AUTHORIZED AND CERTIFIED BY THE
STATE OF FLORIDA TO MAKE THAT
CHOICE AND ITS DISCRETION AND
THAT THERE WAS NO AVAILABILITY
FOR THE CHARTER TO HAVE A
MANDATED SYSTEM, WHICH IN FACT
DEPENDING UPON WHAT THE CHARTER
AMENDMENT SAID, COULD IN FACT
MANDATE THAT THE COUNTY
COMMISSION USE A SYSTEM THAT
WAS NOT AUTHORIZED BY THE STATE
OF FLORIDA.
CAN THEY USE THAT TO MANDATE
ONE THAT IS WITHIN WHATEVER THE
SECRETARY OF STATE WAS IN THOSE
REQUIREMENTS?
WHY CAN'T THEY DO THAT?
I THINK THAT UNDER THE
CIRCUMSTANCES SINCE WE ONLY
HAVE ONE SYSTEM BUT I THINKIST
ALWAYS THE CHOICE OF THE COUNTY
COMMISSION.
AND AGAIN BACK TO THE
QUESTION YOU MEAN THAT THE
VOTERS OF THE COUNTY CAN'T TELL
THEIR COUNTY COMMISSION WHICH
ONE THAT THAT COUNTY WANTS AS
LONG AS IT COMPLIES?
NOT, NOT IN THE WAY THE
LEGISLATIVE SCHEME, PERVASIVE
SCHEME.
WE UNDERSTAND WHERE THE
BOTTOM LINE IS NOW.
THANK YOU.
THANK YOU VERY MUCH.
BUT IF I COULD HAVE ONE
ADDITIONAL THOUGHT.
CERTAINLY.
IF YOU LOOK AT THE AUDIT
PROVISION, AND CLEARLY
OBVIOUSLY WE HAVE BEEN FOCUSING
ON THAT BUT WHEN WE ARE TALKING
ABOUT THE COUNTING OF VOTES IF
YOU LOOK AT 6.02 B, THE
STATEMENT IN THAT IS IF A
MUSHEEN COUNTER IS UNAVAILABLE
FOR ANY REASON THE VOTER
VERIFIED BALLOT SHOULD BE
COUNTED BY HAND BY AUDITORS
WHAT YOU HAVE DONE IS CHANGE
THE ELECTION CODE AND
METHODOLOGY IN THIS SECTION BY
SAYING WE HAVE INDEPENDENT
AUDITORS WHOEVER THEY ARE
COUNTING VOTES AND WE'RE GOING
TO MAKE THAT THE COUNT.
[INAUDIBLE]
THE ELECTION CODE PROVIDES
THAT THE COUNTY CANVASSING
BOARD WILL FOLLOW THE
PROCEDURES OF THE ELECTION CODE
TO DETERMINE HOW THAT VOTE IS
COUNTED BECAUSE OTHERWISE VOTES
IN SARASOTA COUNTY UNDER THIS
WILL BE COUNTED AND DETERMINED
DIFFERENTLY THAN ANY OTHER
COUNTY IN THIS STATE.
THANK YOU, YOUR HONOR.
THANK YOU VERY MUCH.
SHORT REBUTTAL.
WE ARE GOING TO EVEN OUT THE
TIME.
YOU HAVE BOTH GONE OVER BUT IT
IS AN IMPORTANT ISSUE.
THANK YOU, YOUR HONOR.
ON THE LAST POINT MR.^LABASKY
UNDER SECTION 6.2, IF THE
MACHINES ARE BROKEN, THE
AUDITORS WILL COUNT THE PAPER
BALLOTS AND THE PAPER BALLOT
COUNTS ARE FOR THE PURPOSES OF
AUDIT THAT GOES TO THE COUNTY
COMMISSION.
IT'S NOT A COUNT FOR PURPOSES
OF THE CANVASSING BOARD.
AND DURING THAT TIME, THERE
CAN'T BE COUNTED FOR PURPOSES
OF THE CERTIFICATION BECAUSE
THE AUDITORS ARE HANDLING THEM.
WELL, THEY CAN BE, THEY WILL
LIKELY BE COUNTED AND THEY
WOULD BE COUNTED BY MIDNIGHT ON
THE NIGHT OF ELECTION DAY.
THEY RUN THROUGH THE AUTOMATIC
TABULATION MACHINES SO THERE'S
REALLY NO, THERE'S NO CLASHING
OF WHO HAS THE BALLOTS AND
WHO'S COUNTING THEM.
NOW THEY WILL SPECULATE AND SAY
THERE WILL BE THIS HORRIBLE
STATE OF AFFAIRS THAT WILL
OCCUR BUT THAT'S ALLISH, I'M
NOT GOING TO CALL IT WISHFUL
THINKING ON THEIR PART.
BUT IT'S SPECULATION.
STATE LAW PROVIDES FOR A
RECOUNT IF THE VOTE IS UNDER A
CERTAIN PERCENTAGE DIFFERENCE,
CORRECT.
CORRECT, YOUR HONOR.
SO IF THERE HAS TO BE A
RECOUNT DURING THE 12 DAYS OF
CERTIFICATION, THAT CANNOT
OCCUR DURING THE FIRST FIVE
DAYS OR AT LEAST DURING THE
PERIOD WHERE THE INDEPENDENT
AUDITORS ARE CONDUCTING THEIR
AUDIT.
IT WOULD HAVE TO WAIT UNTIL
AFTER THAT.
NO, IT COULD OCCUR, YOUR
HONOR, BECAUSE REMEMBER, THE
LIMITED AUDIT IS ONLY FOR 5% OF
THE PRECINCT.
THERE ARE 157 PRECINCT IN
SARASOTA SO WE'RE TALKING ABOUT

REMEMBER, THE LIMITED AUDIT
IS ONLY FOR 5 PERCENT OF THE
PRECINCTS.
THEY ARE 157 PRECINCTS IN
SARASOTA, SO WE'RE TALKING ABOUT
ROUGHLY EIGHT PRECINCTS.
I'M TALKING ABOUT WHERE THE
DIFFERENCE IS A CERTAIN
PERCENTAGE, THERE HAS TO BE A
MANUAL RECOUNT OF ALL VOTES,
DOESN'T THERE?
THAT'S CORRECT, YOUR HONOR.
SO THE COUNTY'S WILL HAVE TO
BE DONE, AND THEN THERE WILL BE
A STATE RECOUNT WHICH CANNOT
OCCUR UNTIL AFTER THE COUNTY'S
DONE.
THAT IS NOT, THAT'S A
SPECULATIVE STATEMENT, WITH ALL
DUE RESPECT, YOUR HONOR.
THERE WAS NO EVIDENCE OFFERED
THAT THIS COULD NOT OCCUR.
THE STATE CALLED THE SUPERVISOR
OF ELECTIONS.
SHE DID NOT SAY SHE COULD NOT
COMPLY WITH THIS PROVISION AND
NOT COMPLY WITH STATE LAW.
SHE DID NOT SAY THAT.
[INAUDIBLE]?
SHE WASN'T ASKED THAT, BUT
MR. SANCHO --
YOU CALLED HIM --
IT WAS NOT REBUTTED, YOUR
HONOR.
WHILE I'M ON THE SUBJECT OF
KATHY DENT'S TESTIMONY, SHE SAID
IT COULD TAKE PLACE.
THERE HAS BEEN THIS BIG ARGUMENT
BEING MADE THAT SOMEBODY'S GOING
TO TOUCH THE BALLOTS WHO'S NOT
ALLOWED TO.
WELL, SHE HAD TO ADMIT ON
CROSS-EXAMINATION THAT IT COULD
OCCUR WITHOUT ANYONE ELSE
TOUCHING THE BALLOTS.
TALK ABOUT THE INDEPENDENT,
SOMEONE INDEPENDENT AND OUTSIDE
OF THE SYSTEM DOING THE AUDIT.
THAT'S NOT NECESSARY FOR THIS
PROCESS?
YES, IT IS NECESSARY, YOUR
HONOR, BUT THEY DON'T NEED TO
TOUCH THE BALLOTS PHYSICALLY IN
ORDER TO COMPLETE THE PROCESS.
WHAT DO THEY NEED TO DO?
THEY NEED TO LOOK AT THE
BALLOT.
THEY LOOK AT IT AFTER THEY'RE
THROUGH AUDITING, THE BALLOT IS
FLIPPED, AND THE NEXT BALLOT IS
PRESENTED TO THE AUDITORS.
THIS IS EXACTLY THE SAME THING
THAT HAPPENS WHEN A MEMBER OF
THE PUBLIC WANTS TO AUDIT THE
VOTE IN THE SUPERVISOR'S OFFICE,
WHICH IS NOT AN UNUSUAL EVENT.
THAT'S HOW THESE AUDITS WOULD
OCCUR AS WELL.
JUSTICE CANTERO, I THINK I MAY
HAVE GIVEN YOU THE MISIMPRESSION
THAT THE PROVISION OF 0.41 WAS A
PROVISION THAT WAS ENACTED AFTER
THE 2000 ELECTION, BUT I'VE
REVIEWED THE HISTORY NOTE UNDER
THE STATUTE.
IT WAS NOT ENACTED AFTER THE
2000 ELECTION, IT WAS ALREADY IN
PLACE BEFORE THE 2000 ELECTION.
SO THAT WAS NO REMEDY THAT THE
LEGISLATURE WAS TRYING TO ENACT
AS A RESULT OF 2000.
AND AS WE KNOW, THERE WAS A
WHOLE WIDE VARIETY OF LOCAL
VOTING SYSTEMS IN 2000 DESPITE
041.
AS SOME OF YOU, I THINK
CORRECTLY, HAVE NOTED, THIS IS
AN ISSUE REGARDING CONFLICT AND
INCONSISTENCY BECAUSE WE'RE
DEALING WITH ARTICLE 8 OF OUR
CONSTITUTION AND HOME RULE
POWERS, AND AS THE COURT SAID IN
MULLIGAN, THE FACT THAT YOU'RE
DEALING WITH A HOME-RULE COUNTY
MAKES THE PREEMPTION ESPECIALLY
SIGNIFICANTLY.
THERE IS NO EXPRESS PREEMPTION
IN THIS CASE.
THERE ARE STATEMENTS THAT
SUGGEST THAT THE SECRETARY
SHOULD INTERPRET THE LAW
UNIFORMLY, BUT A STATEMENT OF
UNIFORMITY IS NOT SUPPORT FOR
IMPLIED PREEMPTION BECAUSE
THAT'S A DANGEROUS,
JUDICIALLY-IMPOSED DOCTRINE WHEN
YOU'RE DEALING WITH HOME RULE.
FURTHER LEGISLATION ENACTED
SINCE THIS LITIGATION STARTED
THAT FURTHER EVENTS OF
LEGISLATIVE INTENT IN THIS AREA?
NO, YOUR HONOR.
WELL, THERE WERE AMENDMENTS IN
2007, THERE WAS A
POSTCERTIFICATION AUDIT WHICH IS
NOW IN PLACE WHICH IS
INTERESTING TO NOTE BECAUSE BOTH
THE SECRETARY AND THE SARASOTA
ALLIANCE TESTIFIED BEFORE THE
SENATE ABOUT THIS LITIGATION.
AND THE SENATE AND THE
LEGISLATURE IN 2007 COULD HAVE
EASILY SAID THAT THERE SHALL BE
NO AUDITS OF THE BALLOTS EXCEPT
AS DESCRIBED HEREIN.
VERY EASY STATEMENT TO MAKE.
THAT WAS NOT MADE.
SO WE GET BACK TO A CONFLICT
ANALYSIS.
AND LIKE IN MULLIGAN, THE
MULLIGAN FORFEITURE STATUTE
DEALT WITH FELONY, THE LOCAL
ORDNANCE DEALT WITH
MISDEMEANORS.
THERE WAS NO CONFLICT.
SO IS YOUR BOTTOM LINE IN
ORDER FOR THERE TO BE EXPRESS
PREEMPTION, THE LEGISLATURE HAS
TO USE SOME PART OF THE WORD
PREEMPT?
YES.
YES, YOUR HONOR.
EITHER PREEMPT OR NO LAW SHALL
BE ENACTED BY A COUNTY OTHER
THAN THE LAWS HEREIN, WORDS TO
THAT EFFECT.
THIS COURT'S MADE IT CLEAR IT
HAS TO BE JUST --
WHAT ABOUT AN EXPRESS GRANT
WITH REFERENCE TO
MUNICIPALITIES?
THAT'S, AND I'M GLAD YOU
ASKED THAT BECAUSE THE REASON
THAT IS IN THE STATUTE, I
BELIEVE, IF YOU LOOK AT ARTICLE
8, IT SAYS MUNICIPAL ELECTIONS
SHALL BE CONDUCTED ONLY AS
PROVIDED BY LAW.
SO ARTICLE 8 ACTUALLY RESTRICTS
MUNICIPALITIES, ACTUALLY
ADDRESSES MUNICIPALITIES IN
THEIR ABILITY TO CONDUCT
ELECTIONS.
SO THE LEGISLATURE ENACTED IN
THE ELECTION CODE THEY SAID
MUNICIPALITIES CAN CONDUCT --
AND I'M PARAPHRASING NOW -- BUT
THEY CAN CONDUCT ELECTIONS
ACCORDING TO THE CODE AND EXCEPT
AS PROVIDED IN A MUNICIPAL
CHARTER.
WELL, I THINK THAT ACTUALLY
SUPPORTS OUR POSITION BECAUSE
THERE WAS A RESTRICTION IN
ARTICLE 8 THAT WAS FREED UP IN
THE STATUTE ON MUNICIPALITIES.
THERE'S NO RESTRICTION ON
COUNTIES' ABILITY TO CONDUCT
ELECTIONS IN ARTICLE 8.
AND WITH THAT, BOTH SIDES
HAVE EXHAUSTED MORE THAN YOUR
TIME.
AND SOME MAY BE TROUBLED THAT
WE'VE GONE OVER TIME, BUT THIS
IS AN IMPORTANT ISSUE.
I THANK BOTH SIDES FOR YOUR
PROFESSIONALISM, FOR YOUR
ARTICULATE WAY IN WHICH YOU HAVE
ADDRESSED THIS PROBLEM, AND IT'S
AN ISSUE THAT'S IMPORTANT TO
FLORIDIANS, SO I THINK IT'S
IMPORTANT WE TAKE SOME EXTRA
TIME TO LOOK AT IT.
WE'LL TAKE THIS CASE UNDER
ADVISEMENT.
THANK YOU, BOTH.
THANK YOU, YOUR HONOR.