SUPREME COURT OF FLORIDA. Case No. SC DCA Case No. 1D FLORIDA DEMOCRATIC PARTY v. GLENDA HOOD, etc. et al

SUPREME COURT OF FLORIDA Case No. SC04-2072 DCA Case No. 1D04-4667 FLORIDA DEMOCRATIC PARTY v. GLENDA HOOD, etc. et al. ____________________________...
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SUPREME COURT OF FLORIDA Case No. SC04-2072 DCA Case No. 1D04-4667

FLORIDA DEMOCRATIC PARTY v.

GLENDA HOOD, etc. et al. __________________________________________________________________ Petitioner Respondent

__________________________________________________________________ BRIEF OF RESPONDENT GLENDA HOOD __________________________________________________________________

Richard A. Perez, General Counsel Florida Bar No. 0122416 Florida Department of State R.A. Gray Building 500 South Bronough Street Tallahassee, Florida 32399 Telephone (850) 245-6527 Facsimile (850) 245-6127

George N. Meros, Jr. Florida Bar No. 263321 Michael A. Sexton Florida Bar No. 131520 Jonathan P. Kilman Florida Bar No. 555274 GrayRobinson, P.A. Post Office Box 11189 Tallahassee, Florida 32302 Telephone (850) 577-9090 Facsimile (850) 577-3311

Attorneys for Respondent, Glenda Hood

TABLE OF CONTENTS TABLE OF CONTENTS...................................................................................... i TABLE OF AUTHORITIES................................................................................. iii STATEMENT OF CASE AND FACTS................................................................ 1 SUMMARY OF ARGUMENT ............................................................................. 13 ARGUMENT ....................................................................................................... 13 I.

THE COURT’S REVIEW IS LIMITED ...................................................... 13

II.

THE DEPARTMENT’S WRITTEN JUSTIFICATION FOR PROMULGATING THE EMERGENCY RULE SATISFIED FLORIDA LAW......................................................................................... 17 A. The Rule Responded To A Genuine Emergency. .................................... 18 B. The Department’s Adoption Of The Emergency Rule Was Procedurally Fair.................................................................................... 27

III.

EVEN IF THE COURT COULD EXAMINE THE MERITS OF THE EMERGENCY RULE, WHICH IT CANNOT, THE RULE IS A VALID EXERCISE OF DELEGATED, LEGISLATIVE AUTHORITY............................................................................................. 30 A. The Emergency Rule Meets The Statutory Requirements For Recounts Under Florida Law. .............................................................................. 30 B. The Wexler v. Lepore Decision Requires The Rejection Of Any Substantive Challenge To The Department’s Recount Procedures For Touchscreen Systems............................................................................ 37

IV.

THIS CASE IS ABOUT MANUAL RECOUNTS, NOT CERTIFICATION OF SYSTEM RELIABILITY OR COMPUTER MALFUNCTION....................................................................................... 39

V.

ONLY THE DEPARTMENT HAS THE CONSTITUTIONAL AUTHORITY TO IMPLEMENT REGULATIONS IN THE PRESIDENTIAL ELECTIONS................................................................... 44

i

CONCLUSION.................................................................................................... 47 CERTIFICATE OF SERVICE.............................................................................. 48 CERTIFICATE OF COMPLIANCE WITH FONT REQUIREMENT .................... 49

ii

TABLE OF AUTHORITIES Cases

Bush v. Gore, 531 U.S. 98 (2000) ............................................................................ 18, 19, 45 Cunningham v. Agency for Health Care Admin., 677 So. 2d 61 (Fla. 1st DCA 1996)................................................................. 16 Florida Democratic Party v. Hood, No. 1D04-4667 (Fla. 1st DCA Oct. 28, 2004) ...................................... 16, 22, 23 Florida Health Care Assoc. v. Agency for Health Care Admin., 734 So. 2d 1052 (Fla. 1st DCA 1998) ............................................................. 18 Florida Home Builders Assoc. v. Division of Labor, Bureau of Apprenticeship, Florida Dep't of Commerce, 355 So. 2d 1245 (Fla. 1st DCA 1978)............................................................ 18 Golden Rule Ins. Co. v. Fla. Dep't of Ins., 586 So. 2d 429 (Fla. 1st DCA 1991)..........................................................22, 23 Krajenta v. Div. of Workers’ Comp., 276 So. 2d 1200 (Fla. 1st DCA 1979) ............................................................. 16 Little v. Coler, 557 So. 2d 157 (Fla. 1st DCA 1990)..........................................................22, 27 Palm Beach County Canvassing Bd. v. Harris, 772 So. 2d 1273, 1289 (Fla. 2000)................................................................. 19 Reform Party of Florida v. Black, _ So. 2d _, 2004 WL 2075415 (Fla. 2004) ..................................................... 25 St. Paul Title Ins. Corp. v. Davis, 392 So. 2d 1304 (Fla. 1980) .......................................................................... 17 Times Pub. Co. v. Florida Dept. of Corrections, 375 So. 2d 304 (Fla. 2d DCA 1979)............................................................... 24 Weber v. Shelley, 347 F.3d 1101 (9th Cir. 2003) ....................................................................... 26 Wexler v. Lepore, 878 So. 2d 1276 (Fla. 4th DCA 2004 .............................................................. 26 Wexler v. Lepore, Case No. 04-80216-CIV-COHN (S.D. Fla. Oct. 25, 2004)................... 37, 38, 39 Statutes

§ 101.015(4)(b), Fla. Stat. (2004) ...................................................................... 40 § 101.015, Fla. Stat. (2004) ........................................................................... 3, 35 § 101.35, Fla. Stat. (2004)................................................................................. 40

iii

§ 101.5601-101.5615, Fla. Stat. (2004)................................................................ 3 § 101.5603, Fla. Stat. (2004) ............................................................................... 3 § 101.5604, Fla. Stat. (2004) ............................................................................. 36 § 101.5605, Fla. Stat. (2004) .................................................................. 30, 35, 39 § 101.5606(3), Fla. Stat. (2004)......................................................................... 31 § 101.5606, Fla. Stat. (2004) ............................................................................. 35 § 101.56062(3), Fla. Stat. (2004)....................................................................... 35 § 101.5607, Fla. Stat. (2004) ........................................................................30, 39 § 101.5608(3), Fla. Stat. (2004)......................................................................... 35 § 101.5612(1), Fla. Stat. (2004)......................................................................... 43 § 101.5612(2), Fla. Stat. (2004)......................................................................... 43 § 101.5612(4)(b), Fla. Stat. (2004) .................................................................... 43 § 101.5612, Fla. Stat. (2004) .................................................................. 30, 39, 40 § 102.141(5)(b), Fla. Stat. (2004) ...................................................................... 34 § 102.155(5)(b), Fla. Stat. (2004) ...................................................................... 31 § 102.166(5)(a), Fla. Stat. (2004) .................................................................. 4, 44 § 102.166(5)(b), Fla. Stat. (2004) ....................................................... 4, 20, 30, 45 § 102.166(6)(d), Fla. Stat. (2004) .................................................................. 4, 20 § 102.166, Fla. Stat. (2004) ................................................................................. 7 § 120.54(2)(a), Fla. Stat. (2004) ........................................................................ 27 § 120.54(2)(c), Fla. Stat. (2004) ........................................................................ 28 § 120.54(2), Fla. Stat. (2004) ............................................................................ 28 § 120.54(3)(a)1, Fla. Stat. (2004) ...................................................................... 28 § 120.54(3)(c), Fla. Stat. (2004) ........................................................................ 28 § 120.54(3)(e)6, Fla. Stat. (2004) ...................................................................... 29 § 120.54(4)(a), Fla. Stat. (2004) ........................................................................ 17 § 120.54(4)(a)2, Fla. Stat. (2004) ...................................................................... 16 § 120.54(4)(a)3, Fla. Stat. (2004) ...................................................................... 27 § 120.54(4), Fla. Stat. (2004) ........................................................................ 1, 13 § 120.54(8)(a)-(h), Fla. Stat. (2004)..................................................................... 2 § 120.54(8)(e), Fla. Stat. (2004) ...................................................................... 1, 2 § 120.56 (1), Fla. Stat. (2004) ............................................................................. 6 § 120.56(2), Fla. Stat. (2004) ........................................................................ 6, 28 § 120.56(3)(b), Fla. Stat. (2004).......................................................................... 7 § 120.56(3), Fla. Stat. (2004) .............................................................................. 6 § 120.56(4), Fla. Stat. (2004) .............................................................................. 6 § 120.56(5), Fla. Stat. (1996) ............................................................................ 14 § 120.56(5), Fla. Stat. (2004) .......................................................................14, 17 § 120.569, Fla. Stat. (2004) ................................................................................. 6 § 120.57(1), Fla. Stat. (2004) ............................................................................ 23 iv

§ 120.57, Fla. Stat. (2004)................................................................................... 6 § 120.68(1), Fla. Stat. (2004) ............................................................................ 17 § 120.68(9), Fla. Stat. (2004) ........................................................................ 1, 13 § 120.68, Fla. Stat. (2004)................................................................................. 16 § 97.021(21), Fla. Stat. (2004)............................................................................. 4 § 97.021(34), Fla. Stat. (2004)............................................................................. 4 § 97.021, Fla. Stat. (2004)............................................................................30, 31 §§ 101.5601-101.5614, Fla. Stat. (2004) ............................................................ 35 3 U.S.C. § 5........................................................................................... 19, 25, 46 Rules

Fla. Admin. Code Ch. 1S-2................................................................................. 3 Fla. Admin. Code Ch. 1S-5............................................................................... 42 Fla. Admin. Code Ch. 1S-7............................................................................... 42 Fla. Admin. Code R. 1S-1.003 .......................................................................... 27 Fla. Admin. Code R. 1S-2.015 .......................................................................... 40 Fla. Admin. Code R. 1S-2.031(7) .................................................................... 6, 7 Fla. Admin. Code R. 1SER-04-1(6)(b)(1) .......................................................... 32 Fla. Admin. Code R. 1SER-04-1(6)(b)(2) .......................................................... 32 Fla. Admin. Code R. 1SER-04-1(6)(b)(3) .......................................................... 32 Fla. Admin. Code R. 1SER-04-1(7)................................................................... 32 Constitutional Provisions

Art. II, § 1, cl. 2, U.S. Const.......................................................................... 2, 45 Art. V, § 4(b)(3), Fla. Const.............................................................................. 17 Laws of Florida

Ch. 2001-40, Laws of Fla.................................................................................... 2

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STATEMENT OF CASE AND FACTS I.

THE LIMITED ADMINISTRATIVE RECORD FOR REVIEW OF EMERGENCY RULEMAKING This case presents the single issue of whether the Department of State

(“Department”) properly invoked emergency rulemaking to ensure that uniform procedures for manual recounts were timely in place for each system of touchscreen voting in use in 15 Florida counties. The substance of the emergency rule is not properly before this Court, nor is the certification of touch screen voting systems. As described in greater detail in Part I of the Argument, this Court’s review is expressly limited to: (a) the existence of an emergency (i.e., “immediate danger to the public health safety and welfare”), as described by the Department, and (b) the fairness of the procedure used to adopt the emergency rule given the circumstances. See § 120.68(9), Fla. Stat. (2004). The record on appeal of an emergency rule is limited to the text of the emergency rule and the agency’s emergency rule-making record as defined in subsection 120.54(8)(e) (“all notices and findings made under [Section 120.54(4), Florida Statutes]”). The limitation of the record to “all notices and findings made” by the Department in adopting the emergency rule is important, given separation of powers concerns and, in the context of the presidential election, the constraints on 1

judicial interference with legislative discretion as imposed by Article II of the U.S. Constitution. U.S. Const., Art. II, § 1, cl. 2. By seeking to invalidate the emergency rule based on mere disagreement with the Department’s factual and policy judgments regarding the nature of the emergency and the procedural steps reasonably available to provide fairness, Appellant urges this Court to usurp the discretion delegated to the Department by the Legislature. While subsections 120.54(8)(a)-(h) provide a broader scope of what constitutes a “rulemaking record,” it is unclear that any provision of that statute beyond 120.54(8)(e) applies to the adoption of an emergency rule. Regrettably, Appellant provided the court below an incomplete and misleading account of the Department’s rule-making process based upon factual allegations and documents that fall well outside the limited scope of section 120.54(8)(e). See [Petition, at 48, 9 and Exhs. 2, 5-8]. That incomplete, cherry-picked record likely prompted the misunderstanding evident in the dissenting opinion below. To ensure that this Court is not similarly mislead, the Department is compelled to provide a complete description of the factual record consistent with Chapter 120. II.

THE COMPLETE RECORD Shortly after the 2000 Presidential election, the Florida Legislature

overhauled the State’s elections laws. See Chapter 2001-40, Laws of Florida. The 2

overhaul covered a range of topics, including methods for voting, tabulating votes, and conducting recounts. See id. The Legislature’s reforms included amendment to Florida’s Electronic Voting Systems Act (§§ 101.5601-101.5615, Fla. Stat. (2004)) 1 and Section 101.015, Florida Statutes. These provisions required the Department to adopt comprehensive rules setting forth how electronic voting systems would be approved/certified for use by the Department. The Department acted expeditiously in doing so. The Department’s certification rules, including subsequent amendments, are found in Chapter 1S-2, Florida Administrative Code (Dep’t of State, “Florida Voting Systems Standards,” effective April 2002 is incorporated into Chapter 1S-2). These rules, which form the basis for the certification of all voting systems in use in Florida (including the touchscreen voting systems), have never been challenged administratively or judicially. As noted above, the 2001 elections law reforms included significant changes to section 102.166, the statute providing for manual recounts. For example, the Legislature limited mandatory manual recounts to elections where the margin of victory is .25% or less. § 102.166(1), Fla. Stat. (2004). The Legislature also limited any manual recount to an examination of only the overvotes (as defined in

1

Section 101.5603, Florida Statutes, expressly authorizes voting systems that do not use paper ballots. 3

§ 97.021(21)) and undervotes (as defined in § 97.021(34))cast in the relevant race, eliminating a wholesale recount of all votes cast. Id. Further, the Legislature set forth a new standard to govern whether a vote would be counted as a result of a manual recount - “a clear indication on the ballot that the voter has made a definite choice,” Id. § 102.166(5)(a) - and directed the Department 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.’” Id. § 102.166(5)(b). Finally, the Legislature directed the Department to adopt detailed rules prescribing the procedure for conducting a manual recount for each certified voting system. Id. § 102.166(6)(d). Given the continued concerns regarding the interpretation of ambiguous or incomplete physical markings on optical scan ballots, the Department adopted a uniform rule addressing manual recounts for those particular voting systems. Because such ambiguities did not, and could not, exist with regard to touchscreen systems — which do not involve paper ballots at all, only electronic ballots with unambiguous digital indicia of voter choice or non-choice — the Department determined that no further rule was required at that time for touchscreen systems. In connection with the 2002 election cycle, it first became clear in the heat of post-election events that some confusion existed with respect to manual recounts 4

of votes cast on touchscreen systems. For example, in December, 2003, following a close special election in Florida House District 91 that triggered a manual recount, county canvassing boards in touchscreen counties recognized a need for clarity in recount methodology. In light of these events, the Department re-focused on the difficulties inherent in creating manual recount rules for touchscreen systems. The touchscreen systems did not permit overvotes or cause ambiguous undervotes, which together form the traditional basis for a manual recount, if one is called for by law. The Legislature was fully aware of this situation. Appellant’s Exh. 2, DE 04-02, at p. 2, n. 2 (referencing the report prepared by the Senate Committee on Ethics & Elections, March 2001). The report forming the basis of 2001 reforms recognized that manual recounts were likely unnecessary for touchscreen systems since they produced neither overvotes nor undervotes. See id. Indeed, that was one of the primary appeals of such systems. Following the House District 91 election, the Department received inquiries from supervisors of elections in counties utilizing touchscreen systems seeking guidance on whether such counties were required to print out ballot images of all undervotes in a race subject to manual recount. On February 12, 2004, the Department issued DE 04-02 (“Opinion”), opining that given the characteristics of 5

approved touchscreen systems, no such action was necessary or authorized since overvoting was impossible and no stray marks exist which might evidence a voter’s clear choice. See Appellant’s Exh. 2, DE 04-02, at 1-2. Recognizing that this Opinion was of general applicability, the Department utilized its rule-making authority to codify the substance of the Opinion as a rule. Notice of rule development of the proposed rule occurred in the Florida Administrative Weekly on February 13, 2004. No challenge to the proposed rule under Sections 120.56 (1) and (2), Florida Statutes, was ever made. Nor was any challenge made to the Opinion as an agency statement defined as a rule under Section 120.56(4), Florida Statutes. Indeed, no request for a hearing of any kind was made, including any petition under Sections 120.569 and 120.57, Florida Statutes, by any person (including Appellant). The rule (Rule 1S-2.031(7), Fla. Admin. Code) was filed for adoption on March 24, 2004, and became effective on April 13, 2004. Not until July 6, 2004 did any party seek to challenge the validity of Rule 1S-2.031(7). On that date, various parties (not the Appellant) challenged the existing rule as provided in Section 120.56(3), Florida Statutes, as exceeding the Department’s grant of rule-making authority by contravening other provisions of statute, and that the rule was arbitrary or capricious. After specifically concluding 6

that Rule 1S-2.031(7) was not arbitrary or capricious, ALJ Susan Kirkland found on August 27, 2004 that the rule contravened the provisions of Section 102.166, Florida Statutes. The order was not effective until the end of the thirty day appeal period (i.e., September 26, 2004). See § 120.56(3)(b), Fla. Stat. (2004). After the decision in that rule challenge proceeding, the Department was faced with determining how to address the effect of the Final Order invalidating its rule. The primary election was to be held on August 31, 2004 and the Department did not wish to trigger “doubt or confusion on the eve of a state-wide primary.” Thus, in light of the thirty-day grace period noted above, the Department directed election supervisors to continue to follow the rule. During the grace period, the Department would proceed “in a deliberate and inclusive manner” to consider the adoption of a new rule (as opposed to taking an appeal). Appellant’s Exh. 5. The deliberations included a limited comment period allowing input from the touchscreen systems manufacturers, as well as interested parties, including Appellant. Id. The notice to these interested parties solicited suggestions “as to the process for conducting a manual recount based on the parameters of touchscreen voting systems currently certified by the State of Florida.” Most importantly, the Department asked each manufacturer to “suggest the means by which ballot image 7

files can be more efficiently printed and the information contained therein more easily reviewed by county canvassing boards.” Any comments were to be sent no later than September 10, 2004. Appellant’s Exh. 6. In the same memo and directed to the affected supervisors (who were about to conduct the primary election), the Department sought comments as to the issues directed to the general public and the issue directed to the manufacturers. These comments were to be sent no later that September 15, 2004. The Department stated that it intended to make a decision on an appeal or the filing of an emergency rule no later than September 20, 2004. Appellant’s Exh. 6. The Department received numerous comments from various parties (including Appellant) on or around September 10, 2004. Appellant’s Exh. 7. Except for the comments of the manufacturers which will be discussed below, some of these public comments were unworkable given the proximity of the election, such as: outfit all touchscreen counties with optical scan devices; provide printers for each touchscreen machine; adopt a new touchscreen technology which had not been submitted to the state by its manufacturer. All of those suggestions were impractical given that they would have to be in place by October 18, 2004— the date of the commencement of early voting. Appellant’s comments simply stated that the information contained in the 8

touchscreen machines should be securely stored and then somehow reviewed by the canvassing board to determine if the voter made a definite choice. According to Appellant, the board should review ballot image files, “backup vote files,” and other unnamed “saved records.”2 Of course, the ultimate Department rule provides for just such a review of ballot image files. The input from the three manufacturers of the systems in use in Florida was of more immediate use to the Department’s decision-making process. Each manufacturer suggested alternative methods to provide data for a recount. Two manufacturers, Sequoia and Diebold, suggested various solutions for recounting ballot images which were presently doable and which were subsequently incorporated into the ultimate emergency rule. ES&S, however, the manufacturer of touchscreen voting systems for 11 counties 3 utilizing those systems, noted that while its system could collect the data necessary to provide for a manual recount of the ballot images or reports generated by its system, it also could create “programming enhancements [software]” which could streamline the process. See Appellee’s App. A.

2

Those comments did not propose the collection of any different data, the creation of parallel paper trails, or any alternative procedure for manually reviewing and interpreting the existing electronic ballot data. 3 Broward, Charlotte, Collier, Lake, Lee, Martin, Miami-Dade, Nassau, Pasco, Sarasota, and Sumter. 9

The upgrade was also valuable in that the ballot image files contained in the software utilized in the primary were not readily searchable based on their indicia of an undervote. To reflect an undervote for a particular office or issue, the ballot record for each such voter was left blank. The upgrade would allow the software to search for such blank fields, indicate the occurrence of an undervote, and sort such votes for ease of later review. This software patch (if it could be utilized) would have had to be created, tested and approved by the Department. ES&S could not project how soon it would be available. It is here that Appellant’s selective use of the available rule-making record is most misleading. While it included some (though not all) information from Sequoia and Diebold in its Appendix, Appellant did not include the ES&S submission that proffered a new and potentially vital software upgrade. Of course, the upgrade could be available only if ES&S had time to present the upgrade to the Department and have it certified. Appellant’s omission of the ES& S material is even more troubling when considered in light of the comments the Department received from the supervisors, which Appellant also omitted from its record. On September 20, 2004, Pasco County Supervisor of Elections, Kurt Browning, acting on behalf of all affected supervisors and especially ES&S supervisors, noted that performing a manual 10

recount using existing systems would be of “concern” to Miami-Dade and would be “a challenge for the other counties.” See Appellee’s App. B. Most importantly, Supervisor Browning noted that the proposed ES&S upgrade would be extremely helpful to the supervisors using that equipment and that those supervisors fully supported expedited Department testing and certification of the upgrade. Given this input, the Department worked cooperatively with ES&S to certify the upgrade. On September 23, 2004, the Department received the application for the certification of the enhanced software from ES&S. While reviewing the ES&S application, the Department, on September 30, 2004, contacted interested parties, along with each of the other identified interested parties, to discuss a meeting to receive input, including more detailed comments on the process of conducting a manual recount. The Department was specifically interested in how to resolve any discrepancies that might be discovered during a manual recount and tabulation of undervotes. The interested parties offered October 12, 2004 which, while expressing the desire for a more expeditious schedule, the Department accepted. On October 1, 2004, ES&S’s application was deemed complete, and on October 5-6, 2004, the upgrade was successfully tested in Pasco County and was certified on October 8, 2004. See Appellee’s App. C. Concurrently, the Department, now satisfied that it could overcome the logistical hurdles necessary 11

to conduct a ballot image manual recount, determined not to appeal the ALJ’s Final Order and announced that fact publicly and to proceed with an emergency rule. On October 12, 2004, the scheduled meeting with Appellant and other interested parties took place. This meeting was held in public and attended by the Appellant and others as well as the media and press. Far from presenting the Department with meaningful suggestions to improve the draft Rule, the attendees merely presented a “Settlement Agreement” to the Department which included, inter alia, a requirement that the Department acquiesce to partial federal and judicial control of Florida’s election. 4 Nevertheless, the interested parties expressed great interest in commenting on the Rule draft which was circulated at that meeting. They were informed that such comments would be welcome and considered, but would have to be submitted as soon as possible because the Department was under a deadline which would require it to file the Rule prior to October 18, 2004, when early voting commenced. On October 15, 2004, the Department promulgated the Rule. On October 22, 2004, Appellants commenced this litigation. On October 28, 2004, the First

4

This is the same relief requested from and rejected by Judge Cohn in Wexler v. Lepore, infra. 12

District Court of Appeal squarely rejected each of Appellant’s arguments. This emergency appeal followed. SUMMARY OF ARGUMENT The questions certified by the First District Court of Appeals should be answered in the affirmative. The Department has demonstrated that there was a genuine emergency requiring a rule for manual recounts involving touchscreen systems. When an administrative law judge invalidated the existing rule, it was literally impossible to complete ordinary rule-making procedures before election day. Moreover, the Department’s adoption of the rule was procedurally fair. Even though it was not required to do so, the Department sought the advice of numerous interested parties, including the manufacturers of the touchscreen systems and Appellant. In light of the foregoing, the Department’s justification for the adoption of the Emergency Rule far exceeds all legal requirements. ARGUMENT I.

THE COURT’S REVIEW IS LIMITED As noted above, the Court may not review the substance of the Emergency

Rule. Under section 120.68(9), it may only review the “agency's findings of immediate danger, necessity, and procedural fairness prerequisite to the adoption of an emergency rule pursuant to section 120.54(4).” Any challenge to the 13

substance of the rule, with one exception not applicable here, is subject to the exhaustion of administrative remedies. It is undisputed that Appellant has made no effort whatsoever to exhaust its remedies and hence, this Court lacks jurisdiction to consider the merits of the rule. In nonetheless attempting to obtain from this Court the sort of substantive review it has sought in its earlier papers here, Appellant may contend that administrative review is not practical because the efficacy of this Emergency Rule is of immediate importance. However, section 120.56(5), Florida Statutes, provides an expedited administrative remedy for challenges to the validity of emergency rules. That provision, adopted in 1996, provides as follows: Challenges to the validity of an emergency rule shall be subject to the following time schedules in lieu of those established by paragraphs (1)(c) and (d). Within 7 days after receiving the petition, the division director shall, if the petition complies with paragraph (1)(b), assign an administrative law judge, who shall conduct a hearing within 14 days, unless the petition is withdrawn. The administrative law judge shall render a decision within 14 days after the hearing. See § 120.56(5), Fla. Stat. (1996). This section was obviously adopted to provide the procedure appellants must follow to challenge the validity and substance of emergency rules. There is no reason to believe that the Division would not have acted with speed had a proper challenge been filed.

14

Appellant has ignored its obligation to exhaust administrative remedies prior to seeking judicial review of the substance of the manual recount rule. Initially, in accordance with the Administrative Procedure Act, the Department provided a full comment period for the original rule in the Spring of 2004. Appellant did not preserve that administrative process. Moreover, Appellant again failed to provide substantive feedback during the limited comment period in September 2004. It chose instead to urge partial federal and judicial control of the elections process. Finally, Appellant failed to take advantage of the expedited administrative review process set forth in the APA. Appellant suggests that its challenge is directed only to the “written justification” for enacting the emergency rule, but it plainly seeks a back-door review of the substance of the Emergency Rule. Appellant’s attempt to obtain a judicial re-write of the manual recount rule would require the Court to reach beyond its statutory and constitutional authority. Among other things, the Court would be usurping the Legislature’s delegation of manual recount rule-making to the Department. For these reasons, the First District Court of Appeal recognized that “[t]he courts generally do not concern themselves with the substantive validity of the emergency rule.” Florida Democratic Party v. Hood, No. 1D04-4667 (Fla.

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1st DCA Oct. 28, 2004) at 6 (citing Krajenta v. Div. of Workers’ Comp., 276 So. 2d 1200, 1202 (Fla. 1st DCA 1979)). The only other substantive challenge under the APA to the Emergency Rule would be a facial constitutional challenge involving no disputed issues of fact. See § 120.68, Fla. Stat. (2004). Appellant, however, is challenging many issues of fact. Furthermore, Appellant claims that the Rule is invalid because it violates subsection 120.54(4)(a)2, Florida Statutes. See [Petition, at 21]. This provision provides that “[t]he agency [should] take[] only that action necessary to protect the public interest under the emergency procedure.” Far from providing a statutory basis for reviewing the merits of the Emergency Rule’s validity, this provision simply mandates that an agency’s emergency rule must be tailored to the actual emergency and not extend to other non-emergency circumstances. Cunningham v. Agency for Health Care Admin., 677 So. 2d 61 (Fla. 1st DCA 1996). Appellant makes no such overbreadth claim. Finally, the dissenting judge below speculates that the Petition could have been treated as an appeal from an intermediate order or could be considered under the Court’s “all writs” power. Where the Court’s review jurisdiction is narrowly limited by statute, as it is here, such treatment of the petition would be improper. “The all writs provision of [Article V, Section 3(b)(7) of the Florida Constitution] 16

does not confer added appellate jurisdiction on this Court, and this Court’s all writs power cannot be used as an independent basis of jurisdiction . . . .” St. Paul Title Ins. Corp. v. Davis, 392 So. 2d 1304, 1305 (Fla. 1980). Nor does it confer added jurisdiction to a District Court. See Art. V, § 4(b)(3), Fla. Const. Moreover, even if the emergency rule —which is final— could be twisted into being viewed as intermediate in nature, the narrow exception that might permit broader review does not apply here. See § 120.68(1), Fla. Stat. (2004). Appellant did not even attempt to avail themselves of the proper avenue of challenging the rule’s validity as set forth in section 120.56(5), Florida Statutes. II.

THE DEPARTMENT’S WRITTEN JUSTIFICATION FOR PROMULGATING THE EMERGENCY RULE SATISFIED FLORIDA LAW The Department’s “Specific Reasons for Finding an Immediate Danger to

the Public Health Safety and Welfare” easily surpass the minimum requirements for adopting an emergency rule. [Appellant’s Exh. 1]. Section 120.54(4)(a), Florida Statutes, provides that “if an agency finds that an immediate danger to the public health, safety, or welfare requires emergency action, the agency may adopt any rule necessitated by the immediate danger.” An agency finding of immediate danger, like all other agency findings of fact and judgments of policy, is entitled to substantial deference by this Court. Moreover, in the context of adopting rules 17

governing the manner and conduct of Presidential elections, such deference is heightened, given Article II of the United States Constitution’s enumeration of state legislative primacy in determinations of how to apportion election-related authority and the Legislature’s express apportionment of authority to the Department. See Bush v. Gore, 531 U.S. 98, 113-14 (2000) (Rehnquist, C.J., concurring). “[T]o utilize emergency rulemaking procedures . . . , an agency must express reasons at the time of promulgation of the rule for finding a genuine emergency. Those reasons must be factually explicit and persuasive. Florida Home Builders Assoc. v. Division of Labor, Bureau of Apprenticeship, Florida Dep't of Commerce, 355 So. 2d 1245, 1246 (Fla. 1st DCA 1978).” Florida Health Care Assoc. v. Agency for Health Care Admin., 734 So. 2d 1052, 1053-1054 (Fla. 1st DCA 1998). Appellant does not dispute these basic requirements. [Petition, at 1314]. A.

The Rule Responded To A Genuine Emergency.

The impending elections, coupled with the lack of uniform standards for the 15 touchscreen counties, constituted an immediate danger to the welfare of Floridians. That danger is manifest in light of events following the 2000 election, and the immediacy of the danger necessitated an expeditious solution. 18

Furthermore, the urgency of putting uniform rules in place is compounded by the approach of November 1, 2004, the deadline for taking advantage of the safeharbor provision of 3 U.S.C. § 5. 3 USC § 5 provides that if the State has its voting procedures in place prior to election day, its federal electors will be presumed valid. Indeed, the Legislature’s intent to qualify for that safe-harbor, recognized both by this Court, Palm Beach County Canvassing Bd. v. Harris, 772 So. 2d 1273, 1289 (Fla. 2000), and by the U.S. Supreme Court, Bush v. Gore, 531 U.S. at 110-11, renders the urgency of having uniform rules in place beyond any lawful dispute in this proceeding. Nor can the current emergency reasonably be ignored by attempting to blame it on the Department. Following the 2001 revision of the Election Code, the Department acted as expeditiously as possible to fulfill its many new statutory duties. The Department adopted such rules as it then deemed necessary prior to the 2002 election. Given the information then available to it and the mismatch between the law and the inherent nature of touch-screen voting systems, the Department initially exercised its reasonable judgment that no further manual recount rules were required for such systems. Following elections in 2002 and 2003, however, and the unanticipated actions of certain county supervisors in their manner of conducting recounts of touch-screen votes, it became apparent that 19

further rulemaking would be needed to ensure uniformity. Consequently, the Department promptly initiated and completed rulemaking to address that concern. That rulemaking, however, was challenged and ultimately led to an unanticipated invalidation of the rule. At that moment, the prospect of an emergency was presented and the Department had to determine how to respond to the ruling – whether by appeal or through an attempted cure of the supposed problems. When the ALJ invalidated the existing manual recount rule for touchscreen systems on August 27, early voting for the general elections was less than two months away. Moreover, the prospect of ad hoc recount determinations by the fifteen supervisors of election in counties with touchscreen systems was unacceptable. The risk, for example, that one or two of the county supervisors might, in an undervote situation, begin speculating on the voter’s presidential selection based on party affiliation or votes for one or more other offices was deeply disturbing and presented the danger of unprincipled and non-uniform standards for a recount. The possibility of such disuniformity established a pressing need for the Department to adopt rules for manual recounts of touchscreen systems. §§ 102.166(5)(b) & (6)(d). In light of additional evidence and experience with touchscreen voting, the Department determined that it needed, even for touch20

screen systems, 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.’” Id. Moreover, the Department was required to “adopt detailed rules prescribing additional recount procedure for each certified voting systems which shall be uniform to the extent practicable.” Id. 5 If the Department did not adopt the Emergency Rule when it did, it would have run afoul of these express legislative mandates. As noted above, the ALJ’s ruling collided with the election schedule. It was rendered 67 days before the November 2, 2004 general election, 52 days before the commencement of early voting (October 18, 2004), and only 4 days before a statewide primary election. The timing was exacerbated by Appellant. Rather than play an active role in the full rule-making period preceding the adoption of the touchscreen manual recount rules in the Spring of 2004, Appellant provided no substantive comments. Appellant failed again to provide specific solutions for

Given the nature of touch-screen voting systems – which present no possibility of ambiguous markings or indications – merely a digitally recorded indication of selection or non-selection for each office or questions – the Department determined that either the presence or absence of a recorded selection was the only clear indication of a voter’s definitive choice and acted to implement a uniform standard to that effect, thus eliminating any risk of a speculative and unprincipled inquiry into what a voter might have desired, but did not indicate, on the “ballot.” 21 5

manual recounts during the limited comment period in September/October 2004. Instead, Appellant waited until October 22, 2004 to lodge its formal protests. The purported lack of an emergency asserted by Appellant is certainly not grounded in Florida law. Courts have expressly recognized that a change in the law, coupled with a pre-existing deadline, can permit the promulgation of an emergency rule. For example, in Little v. Coler, 557 So. 2d 157, 159 (Fla. 1st DCA 1990), the court found that a new legislative enactment, coupled with a legislatively-mandated budget deadline, was an “emergency” for rule-making purposes. Specifically, the court held that an agency was not expected to anticipate a legislative decision to enact a law. Id. The ALJ’s decision and the impending election here are closely analogous to the legislative action and budget deadline in Little. See id. Appellant has also argued that the ALJ’s decision was not a “sudden or unforeseeable event” justifying emergency action. [Petition, at p. 16]. However, the ALJ’s ruling was no more predictable than the legislative action in Little. Indeed, the First District Court of Appeal below found that the Little case was dispositive in rejecting Appellant’s arguments. Florida Democratic Party v. Hood, No. 1D04-4667 (Fla. 1st DCA Oct. 28, 2004) at 7. Appellant’s reliance on Golden Rule Ins. Co. v. Fla. Dep't of Ins., 586 So. 2d 429, 430-431 (Fla. 1st DCA 1991) is unavailing. The First District Court of Appeal 22

correctly “disagree[d] with the [Appellant’s] reliance” on that decision. Florida Democratic Party v. Hood, No. 1D04-4667 (Fla. 1st DCA Oct. 28, 2004) at 6-7. In Golden Rule, the agency attempted to justify its promulgation of an emergency rule on several grounds. Included among those grounds was the fact that an administrative hearing officer in a case brought under section 120.57(1), Florida Statutes, had determined that the agency could not rely on an unpromulgated policy which expanded its existing rule. The agency then determined to promulgate an emergency rule to adopt the policy. The court rejected that rationale. Most importantly, the Court noted that the agency already had an existing rule upon which it could rely to continue to meet its statutory obligations until a permanent rule was adopted.6 The Golden Rule court did not hold that the invalidation of an agency rule where no other rule exists to fill the gap could not justify the emergency promulgation of a new rule. Indeed, the Court rejected the agency’s claim of emergency precisely because it still had a rule upon which it could rely, leading to the inescapable conclusion that the invalidation of a rule can form the basis of an

6

“The agency currently has in place Florida Administrative Code chapter 4-58 which sets forth the requirements for health insurance filings.” Golden Rule, 586 So. 2d at 431. 23

emergency rule in order for an agency to continue to fulfill its statutory obligations. At least one other court has agreed that the invalidation of a previous rule could form the basis for an emergency rule. In Times Pub. Co. v. Florida Dept. of Corrections, 375 So. 2d 304 (Fla. 2d DCA 1979), the court declared that an emergency rule was invalid because it failed to state adequately the grounds for the emergency. See id. at 306. Immediately thereafter, and solely in order to correct deficiencies in the initial rule, the same agency adopted a subsequent emergency rule. See id. at 306-07. The First District Court of Appeal accepted the proffered reasons for the necessity of the new emergency rule, although it partially invalidated the new rule on other grounds. See Times Pub. Co., 375 So. 2d at 307. Implicit in the court’s decision is that the invalidation of a previous rule can result in an “unforeseen event,” upon which an emergency rule can be promulgated. See id. Appellant also argues that the lack of specified and uniform standards for manual recounts during the 2004 general election does not create an emergency. [Petition, at 17-19]. This argument is facially unmeritorious. Appellant simply ignores the Florida Supreme Court’s recent decision in Reform Party of Florida v. Black, _ So. 2d _, 2004 WL 2075415, at *11-*12 (Fla. 24

2004). There, the Court recognized the state’s “compelling interests [in] maintaining fairness, honesty, and order” [during elections] and in “avoiding confusion, deception, and even frustration of the democratic process.” Id. Our common experience informs that ad hoc implementation of recount rules is not a positive thing for the citizens of this State. Furthermore, the Legislature’s express statutory intent to take advantage of the safe-harbor provision of 3 U.S.C. § 5 provides an essentially unrebuttable determination of the necessity of having uniform rules in place by the November 1, 2004 deadline. Indeed, for Appellant to claim that this Court should simply ignore that vital component of the legislatively mandated election system invites this Court to violate Article II of the U.S. Constitution by substituting its judgment for that of the Legislature in deciding what is important for the State of Florida in the conduct of a presidential election. Appellant next claims that the Department acted in bad faith in promulgating the Emergency (as well as its predecessor) Rule. [Petition, at 19-20]. The First District Court of Appeal rejected Appellant’s efforts to impugn the Department’s motives: The Department was clearly concerned with the fact that if no rule were in place, the same specter of confusion and inconsistency in divining a voter’s intent that had attended the 2000 presidential election in Florida, and the same constitutional problems the United 25

States Supreme Court addressed in Bush v. Gore, might yet recur in 2004. Florida Democratic Party v. Hood, No. 1D04-4667 (Fla. 1st DCA Oct. 28, 2004) at 10. The standards imposed by the Emergency Rule are necessary to comply with Florida Statutes and binding constitutional principles. Neither the U.S. nor the Florida Constitution requires that all voting systems be the same.

See

Memorandum Opinion, Wexler v. Lepore, 878 So. 2d 1276 (Fla. 4th DCA 2004); Weber v. Shelley, 347 F.3d 1101 (9th Cir. 2003). But, recognizing the federal concerns, Florida law does require that each voting system be subject to the same set of rules. Appellant also complains that the Department should not have waited until October 15 to promulgate the Emergency Rule. See Petition. It even charges a “transparent abuse of governmental power” by the Department. Id. However, Appellant’s protests are belied by the recount rule that was on the books (and on which the Department relied) until August 27, 2004. These protests also ignore the Department’s extraordinary research and investigative efforts which began almost immediately after the August 27 ALJ ruling. See Statement of the Case and Facts, supra. Indeed, if the Department had enacted an Emergency Rule without this process, Appellant would be condemning the Department’s “rush to judgment.”

26

B.

The Department’s Adoption Of The Emergency Rule Was Procedurally Fair.

By any reasonable standard, the Department’s efforts in enacting the Emergency Rule were eminently fair. See Statement of the Case and Facts, supra. As a preliminary matter, the reasons articulated by the Department that the adoption of the Emergency Rule was “fair under the circumstances” satisfied section 120.54(4)(a)3, Florida Statutes. Its statement of “Reasons For Concluding That the Procedure Is Fair Under the Circumstances” established that a permanent rule could not have been adopted in time for the 2004 general election. See Appellant’s App. Exh. 1. The impossibility of an agency adopting a permanent rule before the date upon which a rule must be in place has been held to justify the use of the emergency rule promulgation procedure. Little v. Coler, 557 So. 2d 157 (Fla. 1st DCA 1990). Unfortunately, given the statutory requirements related to adoption of a permanent rule, such a rule could not have become effective before the November 2, 2004, general election. Prior to even noticing a permanent rule for adoption, an agency must initially publish a notice of rule development in the Florida Administrative Weekly. § 120.54(2)(a), Fla. Stat. (2004). Pursuant to Rule 1S1.003, Florida Administrative Code, all such notices received by Wednesday at noon will be published on Friday of the following week. In the instant case, what 27

this time frame means is that if the Department had filed its notice of Rule Development as soon as possible after the ALJ’s decision on August 27, 2004, that is, on or before September 1, 2004, the initial rule development notice would have been published in the Florida Administrative Weekly on September 10, 2004. Assuming that the Department then received no requests for workshops as provided in Section 120.54(2)(c), Florida Statutes, it could then have filed a notice of rule adoption as provided by Section 120.54(3)(a)1, on September 8, 2004, for publication in the Florida Administrative Weekly on September 17, 2004. 7 Thereafter, and assuming again (1) that no rule hearing under section 120.54(3)(c) was requested, (2) that no proposed rule challenge under section 120.56(2) was filed, (3) that no changes were made in the rule, and (4) that no comments were made by the Joint Administrative Procedures Committee (any of which would have delayed rule adoption), the Department could have filed a permanent rule for adoption on October 15, 2004. 8

7

Even if legally appropriate, such a pre-emptive filing of a notice of rule adoption before the public even had notice of rule development would have violated the spirit, if not the terms of Section 120.54(2), Florida Statutes. 8

This time line does not even consider the effect upon the Department’s resources of the August 31, 2004 primary election, the fact that during August and September 2004 four massive hurricanes swept through Florida, or the various technical obstacles to even have a ballot image manual recount system that was feasible. 28

Of course, such a permanent rule would not have been effective on that date. As provided by Section 120.54(3)(e)6, no rule is effective earlier than 20 days after being filed for adoption. Thus, even if the Department had commenced permanent rule-making immediately upon receiving the ALJ’s decision and all proceedings for adoption had occurred without any challenge, a permanent rule would have been effective on November 4, 2004 – after the general election had already occurred. Last, and as described in greater detail in the Statement of the Case and Facts, the Department conducted an intense outreach effort to interested parties, including Appellant, as well as local regulators and touchscreen system manufacturers before it promulgated the Emergency Rule. Under the circumstances and given the necessity of immediate action, the Department more than met the statutory requirements for procedural fairness. If the Department wished to avoid scrutiny of its manual recount rule, it could simply have filed an appeal of the ALJ’s decision on the thirtieth day (i.e., September 26). Of course, the Department would have then enjoyed the benefit of the automatic stay while the matter was on appeal. Even if petitioner in that case were successful in having the stay lifted, the Department could have then waited until November 1 to adopt the Emergency Rule, effectively precluding any judicial 29

review. It did not do so, but rather acted in a responsible manner balancing expedition, time for appropriate consideration and judgment, and fairness to third parties. III.

EVEN IF THE COURT COULD EXAMINE THE MERITS OF THE EMERGENCY RULE, WHICH IT CANNOT, THE RULE IS A VALID EXERCISE OF DELEGATED, LEGISLATIVE AUTHORITY A.

The Emergency Rule Meets The Statutory Requirements For Recounts Under Florida Law.

Appellant contends that existing Florida law demands a recount process materially greater than that reflected in the Emergency Rule. Appellant is flatly, demonstrably wrong. The Emergency Rule assiduously follows the demands of sections 102.166(5)(b) and 97.021, Florida Statutes. As a preliminary matter, Appellant misleads this Court on two central points. First, the manual recount process is not a matter of physical and communication security, software configuration, or system malfunction. The Legislature assigned those issues to the certification process. The Legislature has adopted rigorous testing mechanisms, both prior to and after certification, to ensure that the machines function accurately. §§ 101.5605, 101.5607, 101.5612, Fla. Stat. (2004). Second, Appellant attempts to suggest that under present law, “voter intent” and a voter’s “definite choice” are interchangeable concepts – which is plainly not so. Prior to the 2001 legislative change to the election code, a recount sought to 30

assess whether a ballot reflected “a clear indication of the intent of the voter.” But after the 2001 amendment, a vote is determined by a “clear indication on the ballot that the voter has made a definite choice.” Thus, the present standard has eschewed a subjective ex post attempt to discern a voter’s state of mind, and now looks instead to whether the ballot indicates that the voter has made a definite selection. More specifically, present Section 102.155(5)(b) provides that “a vote [in a manual recount] shall be counted if there is a clear indication on the ballot that the voter has made a definite choice. And under Section 97.021(3)(b), a ballot is defined as an electronic designation on the processing equipment itself. It is decidedly not, as Appellant implies, a piece of paper or something external to the electronic touchscreen device. The ballot images contemplated by the Emergency Rule squarely comport with Florida Statutes. By pressing the button to cast a ballot on a touchscreen machine, the voter is making a clear, definite selection. And significantly, that clear choice is made only after the voter is warned of a possible undervote and the opportunity for a review process before the ballot is cast. § 101.5606(3), Fla. Stat. (2004).

31

Turning to the Rule itself, and contrary to Appellant’s claim that the Rule “does not allow any manual recount in electronic voting jurisdictions” [Petition, at 23], it is plain that the Rule explicitly provides standards for such recounts. For each of the three certified touchscreen voting systems, Rule No. 1SER-04-1 defines what constitutes “a clear indication on the ballot that the voter has made a definite choice.” See Rule 1SER-04-1(6)(b)(1) (ES&S iVotronic), (b)(2) (Sequoia) and (b)(3) (Diebold). Rule No. 1SER-04-1(7) sets forth the detailed procedures for conducting a manual recount for touchscreen voting systems. The Rule requires that the canvassing board print one (1) official copy of the ballot image file. By way of example, the ES&S touchscreen voting systems (after the installation of the software update) produces the following snapshots of actual ballot images by ES&S software:

32

(Sample Voter 1)

(Sample Voter 2)

33

The first column identifies the serial number for each touchscreen voting machine. The second column indicates the ballot style used by the particular voter in casting a ballot. The third column identifies the choice made by the voter – the name of a candidate, a selection for a ballot issue, or an indication of an undervote. An asterisk between the second and third column separates the voter record, i.e. each asterisk signifies a new voter. The fourth column is a narrative description of the office or issue for that particular line in the voter’s ballot image. The Rule further requires that the counting teams examine these ballot image files to identify undervotes. If the certified voting system is capable of electronic sorting and identifying of undervotes, the counting teams must use this electronic sorting process. Once identified, the counting teams must count each such undervote and compare the number of undervotes to the totals in the complete canvas report. This is done to verify vote totals. If a discrepancy is found between the undervotes in the manual recount totals and the total undervotes reported for such precinct in the complete canvas report, then the canvassing board must resolve that discrepancy. “In resolving the discrepancy, the canvassing board shall review the records produced by the voting system and may request the verification of the tabulation software as provided in section 102.141(5)(b), F.S., and conduct any necessary diagnostic examinations …” 34

Ultimately, Appellant claims that the Rule is invalid because “voters in both jurisdictions [those with touchscreen and those with another voting system] must be treated identically with respect to their entitlement to a statutorily-mandated recount.” [Petition, at 23]. Of course, nothing in Florida law or jurisprudence supports this proposition. And the very recent holding in Wexler v. Lepore (attached as Appellee’s App. D), discussed in great detail below absolutely belies it. Florida law does provide that all voters are entitled to recounts under certain statutorily recognized circumstances, but it does not require what Appellant wants – a unitary single system voting process. Indeed, as shown above, Florida law explicitly recognizes that different voting systems will entail different recount procedures. The Legislature provided for the possibility of more than one voting system to be used in Florida, and expressly provided that a voting system could use an electronic ballot. See, e.g., §§ 101.5601-101.5614, Fla. Stat. (2004). The Department is authorized by the Legislature to adopt rules regarding minimum standards for voting systems, including electronic voting systems, to certify which voting systems meet those standards, and to promulgate other administrative rules implementing the elections statutes. See, e.g., Id. §§ 101.015, 101.5605, 101.5606, 101.56062(3), and 101.5608(3). It is then left to each county's board of county 35

commissioners, upon consultation with their respective Supervisor of Elections, to select the voting system to be used in their particular county. Id. § 101.5604. Currently, there are two types of electronic voting systems certified for use in Florida: the optical scan system and the touchscreen system. A voter using the optical scan system marks a paper ballot by filling in the bubble or completing the arrow next to the candidate of his/her choice, and the ballot is then run through a precinct-level tabulation system. In contrast, a voter using the touchscreen system does not mark a paper ballot but instead makes selections on a computer screen. The touchscreen system gives the voter the opportunity to review his/her selections, and it is only after the voter affirmatively indicates his/her approval that the selections are recorded in the machine's electronic memory. Appellant claims that the procedures set out in the Rule for recounts in touchscreen jurisdictions are in violation of Section 102.166, Florida Statutes, because “they cannot possibly ascertain the will of the voter” because “elections officials” cannot “look at [the voter’s] voting card.” [Petition at 27]. Appellant also claims that because the recount provisions of the Rule cannot detect hypothetical machine error then no manual recount has actually occurred. [Petition at 27-30].

36

What Appellant ignores is that under Florida law a manual recount is done not to ascertain “voter intent” but rather to determine if the ballot evidences that the voter has “made a definite choice.” In touchscreen systems the image contained in the machine’s memory is the “ballot” which is to be checked to ascertain what choice has been made. The Rule provides for just such a process to check the information contained on that “ballot image.” So long as Florida law permits the utilization of different voting systems which meet the statutory parameters, nothing more is needed. B.

The Wexler v. Lepore Decision Requires The Rejection Of Any Substantive Challenge To The Department’s Recount Procedures For Touchscreen Systems.

In Wexler v. Lepore, Case No. 04-80216-CIV-COHN (S.D. Fla. Oct. 25, 2004), the court rejected a legal challenge brought by one of Appellant’s congressional members against the Department. Like here, Appellant’s member (here appearing amicus curiae) was challenging the touchscreen systems in Florida; in particular, the recount procedures. Unlike this proceeding, the court heard three days of testimony from the parties. See id. at 2.9

9

As noted above, Appellant’s failure to participate in the rule-making process for the original rule in early 2004 and its failure to exhaust administrative remedies after the adoption of the Emergency Rule deprived the Court of any record of fact finding in this case. 37

Appellant’s claim that the Wexler case is inapposite is just plain wrong. In its Conclusions of Law, the court expressly stated that “[a]s part of [its] analysis, the Court must also examine whether the emergency rule complies with Florida’s manual recount statutes.” See id. at 14. Moreover, the court noted that “if the Emergency Rule failed to comport with Florida law, that fact alone could have led to a decision in the Plaintiffs’ favor.” The Wexler court delivered a number of crushing blows to the threadbare legal challenges presented by Appellant. The Wexler court squarely addressed the propriety of the Emergency Rule at issue in this case. In its Findings of Fact, the court noted that trial testimony “clarified that the touchscreen machines are capable of storing a copy of each ballot cast by a voter that can later be retrieved if necessary.” See id. at 8. The court also noted how the Emergency Rule addressed the handling of undervote determinations for the various touchscreen systems. See id. at 10. After reviewing applicable Florida law, the court concluded that “the emergency rule complies with [Florida] statutes.” Id. at 20. Moreover, the Court rejected Appellant’s member’s attempt to play on the fear of “mistake[s] by the machine.” See id. at 21. Like this case, and as discussed in greater detail below (Part IV, infra), the court noted that “[w]hether the machine made a mistake in recording an undervote is not an issue before the Court.” Id. Supporting this

38

statement, the court cited various statutes (unrelated to the recount statutes) dealing with potential computer malfunctions. Id. Ultimately, the court correctly noted the difficulties of administering any election procedure: Regardless of the voting system employed, however, there will always exist voters who do not follow the directions and will make mistakes. As evidenced repeatedly at trial, no voting system is perfect. Distrust in an electorate’s ability to properly use new technology does not give rise to an equal protection violation. Id. at 23 (emphasis added). The court concluded its opinion by again validating the Emergency Rule at issue here – the Emergency Rule “establishes a manual recount procedure for touchscreen voting systems, which not only meets the statutory requirement for manual recounts under Florida law, but also establishes a uniform, nondifferential standard for conducting manual recounts in compliance with equal protection guarantees.” Id. at 24. IV.

THIS CASE IS ABOUT MANUAL RECOUNTS, NOT CERTIFICATION OF SYSTEM RELIABILITY OR COMPUTER MALFUNCTION Appellant’s concerns regarding the prospect of computer malfunctions are

irrelevant. As noted by the Wexler court, such issues are addressed by statutes not at issue in this case. Wexler, at 21 (citing §§ 101.5605, 101.5607, 101.5612, Fla. Stat. (2004)). Specifically, concerns regarding computer malfunctions are addressed, inter alia, in the statutes setting forth certification requirements. Id.

39

However, neither Appellant nor its members have challenged the certification requirement for the touchscreen systems in this or any other proceeding. Pursuant to Section 101.015(4)(b) and Rule 1S-2.015, each county must develop written procedures that address all aspects of securing a fair and accurate vote. The process includes the following: (i) Ballot Preparation. The security procedures describe the steps necessary to insure that the ballot contains the proper races, candidates and issues for each ballot variation and that the ballots can be successfully tabulated. (ii) Preparation and Configuration of Tabulation System. The security procedures describe the preparation and configuration of the tabulation system. (iii) Logic and Accuracy Test. The security procedures for use with electronic and electromechanical voting systems describe the process for conducting the logic and accuracy testing as required by Section 101.5612, Florida Statutes. (iv) Filing election parameters. The security procedures describe the method by which counties provide the Division of Elections with parameters used within the voting system to define, for each election, the tabulation and reporting instructions within 24 hours after the completion of any logic and accuracy test conducted pursuant to Section 101.5612, or pre-election test conducted pursuant to Section 101.35. For electronic and electromechanical systems, the election

40

parameters shall be submitted in a format readable by the tabulation system and shall be accompanied by a copy of the tabulation program. (v) Pre-election Steps for Voting Machines. The security procedures for use with mechanical or electromechanical voting machines describe the steps necessary to assure the secure preparation of the machines for voting and include (a) a description of the process to seal and secure the voting machines after the logic and accuracy test, and (b) provision for a record to be kept of the identification numbers, seal numbers and protective counter numbers for voting machines. (vi) Election Board Duties. The security procedures describe the duties of the Election Board (clerk and inspectors at a precinct), which shall include (a) verification of the identification numbers, seal numbers, and protective counter numbers of voting machines; (b) checking the operability or readiness of the voting equipment; (c) verification that all counters are set at zero on each voting machine; (d) securing a printed record from each voting machine, if applicable; (e) checking the correctness of the ballot; (f) preparing voting machines for voting; (g) handling voting machine malfunctions; and (h) locking (securing) voting machines at the close of the polls to prevent further voting. (vii) Tabulation of Vote. The security procedures describe each step of ballot tabulation process and must include a description of how the county will (a)

41

count and reconcile voted precinct ballots; (b) process, tabulate, and reconcile voted ballots; (c) respond to machine checks for electronic or electromechanical voting systems; and (d) backup and recover tabulated results and voting system programs for electronic or electromechanical voting systems. (viii) Voting System Maintenance and Storage. The security procedures describe the maintenance and testing performed on electronic, electromechanical, and mechanical devices to insure they are in proper working order and are within manufacturer’s operating specifications. (ix) Access to Tabulation Program Source Code. The security procedures must set forth rules prohibiting the supervisor of elections access to any vote tabulation program source code to be used in an election, unless prior approval has been obtained from the Division of Elections. Approval shall be based on the supervisor establishing security procedures which provide for maintaining a secured control copy of the certified release of the tabulation program source code; protecting source code from unauthorized access; and verification that the tabulation program source code used for each election is identical to the certified release. Any modification to tabulation program source code must be certified by the division under the provisions of Rule Chapters 1S-5 & 1S-7, F.A.C., before use in any election.

42

At the conclusion of the maintenance and programming described in the security procedures, the supervisors are required to thoroughly test all electronic and electromechanical voting systems. Pursuant to Section 101.5612(1), Florida Statutes, the test must be sufficient “to determine that the voting system is properly programmed, the election is correctly defined in the voting system, and all of the voting system input, output, and communication devices are working properly.” In addition to the test provided pursuant to Section 101.5612(1), each supervisor is required to conduct a public logic and accuracy test “[o]n any day not more than 10 days prior to the commencement of early voting …. To ascertain that the equipment will correctly count the votes cast for all offices and on all measures.” See Section 101.5612(2). This public test includes a random sample of two (2) percent of the touchscreen voting machines. With approximately 7,000 touchscreen systems in Miami-Dade County alone, this testing protocol is not insubstantial. After the tests described in Section 101.5612(1) and (2), the canvassing board witnesses the resetting of each device that pass the tests and the sealing of each such machine. The sealing of the machine is done to secure its state of readiness until the opening of the polls. See Section 101.5612(4)(b). “If the county canvassing board determines that the unofficial returns may contain a counting error in the which the vote tabulation system failed to count votes that were

43

properly marked,” then the county canvassing board is directed by state statute to (a) correct the error and recount the affected ballots with the vote tabulation system; or (b) request that the Department of State verifies such software. In case of error, this provision allows the county canvassing board to correct any such error upon discovery. The tools available to the county canvassing board are set forth in the “Florida Voting Systems Standards.” The tools include records from which all operations of the voting system may be audited, including randomly sorted vote images and sequential records of operations, system audit logs, which must be designed to protect the integrity of the data for a specified period of time. See Florida Voting Systems Standards. (Available at http://election.dos.state.fl.us/votemeth/index.shtml). V.

ONLY THE DEPARTMENT HAS THE CONSTITUTIONAL AUTHORITY TO IMPLEMENT REGULATIONS IN THE PRESIDENTIAL ELECTIONS Even if this Court were to find some deficiency in the Department’s use of

emergency rulemaking, the Court is not empowered to compel the adoption of its own substantive rule regarding what constitutes a “clear indication on the ballot that the voter has made a definitive choice.” § 102.166(5)(a), Fla. Stat. (2004). Rather, such determination is exclusively delegated to the Department of State, which is directed to “adopt specific rules for each certified voting system prescribing what constitutes a ‘clear indication on the ballot that the voter has

44

made a definite choice.’” § 102.166(5)(b). Regardless of any alleged deficiency in the rulemaking procedure, the substance of any eventual rule is, unambiguously, legislatively delegated to the Department. Thus, a finding of procedural error here can lead to no remedy other than some alternative implementation – perhaps a new emergency rule – of the Secretary’s substantive determinations, not a de novo creation of a rule. Any imposition of a different substantive requirement other than the one selected by the Secretary would fly in the face of the Legislature’s clear statutory delegation of authority, would violate separation of powers, and would, in the context of a presidential election, violate Article II, § 1, cl. 2, of the United States Constitution. As three Justices of the U.S. Supreme Court have noted, the Florida Legislature has delegated to the Secretary of State and State Circuit Courts specific responsibilities, and this Court may not alter the “apportionment of responsibility among these various bodies.” Bush v. Gore, 531 U.S. at 113-14 (Rehnquist, C.J., concurring). In particular, this Court “must be both mindful of the Legislature’s role under Article II in choosing the manner of appointing electors and deferential to those bodies expressly empowered by the legislature to carry out its constitutional mandate.” Id. at 114. Such deference requires that this Court not supersede the substantive determinations of the Secretary of State absent a clear and unambiguous statutory mandate that could be implemented through the

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direction of ministerial action rather than involving the exercise of discretion. And it further requires that this Court leave open some avenue for the Department to fulfill the Legislature’s clear intent to have uniform rules in place prior to the November 1 cutoff for the safe-harbor provision of 3 U.S.C. § 5. In this case, the Secretary’s determination that a manual recount, if and when necessary, should be conducted by printing out the “ballots” – i.e., the individual electronic records of individual voter selections – and manually ensuring that such individual records (ballots) aggregate to the same totals as the tabulated results, is a perfectly reasonable interpretation of the manual recount procedures. As manually confirmed by review of the ballot image printouts, each individual electronic record provides a “clear indication” of a definitive undervote. Whether such undervote was subjectively desired, was the result of inattention, or was a mistake is irrelevant; the “ballot” is clear in indicating a definitive undervote, with no suggestion whatsoever that some other vote was made. Any attempt by this Court to impose Appellant’s or its own approach on the process would require rejecting the Department’s reasonable interpretation – one which acknowledges the differences between touch screen systems and other systems and establishes a procedure appropriate to that system – and would undermine the clear allocation of authority established by the Legislature.

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CONCLUSION For the reasons set forth above, the decision of the First District Court of Appeal below must be affirmed. Respectfully submitted,

Richard A. Perez, General Counsel Florida Bar No. 0122416 Florida Department of State R.A. Gray Building 500 South Bronough Street Tallahassee, Florida 32399 Telephone (850) 245-6527 Facsimile (850) 245-6127

_______________________________ George N. Meros, Jr. Florida Bar No. 263321 Michael A. Sexton Florida Bar No. 131520 Jonathan P. Kilman Florida Bar No. 555274 GrayRobinson, P.A. Post Office Box 11189 Tallahassee, Florida 32302 Telephone (850) 577-9090 Facsimile (850) 577-3311 Attorneys for Respondent, Glenda Hood

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CERTIFICATE OF SERVICE I certify that a copy of the foregoing was furnished by U.S. Mail, Hand Delivery, E-mail or Facsimile Transmission on November 1, 2004, to the following: E. Gary Early Mark Herron Messer, Caparello & Self, P.A. Post Office Box 1876 Tallahassee, FL 32302-1876 Telephone (850) 222-0720 Facsimile (850) 224-4359 [email protected] [email protected]

Richard B. Rosenthal The Law Offices of Richard B. Rosenthal, P.A. Suite 1422 Alfred I. Dupont Building 169 East Flagler Street Miami, FL 33131 Telephone (305) 779-6097 Facsimile (305) 779-6095 [email protected]

Mitchell W. Berger Berger Singerman 350 East Las Olas Blvd., Suite 1000 Fort Lauderdale, FL 33301 Telephone (954) 525-9900 Facsimile (954) 523-2872 [email protected]

_______________________________ George N. Meros, Jr. Florida Bar No. 263321 Michael A. Sexton Florida Bar No. 131520 Jonathan P. Kilman Florida Bar No. 555274 GrayRobinson, P.A. Post Office Box 11189 Tallahassee, Florida 32302 Telephone (850) 577-9090 Facsimile (850) 577-3311 Attorneys for Respondent, Glenda Hood

Richard A. Perez, General Counsel Florida Bar No. 0122416 Florida Department of State R.A. Gray Building 500 South Bronough Street Tallahassee, Florida 32399 Telephone (850) 245-6527 Facsimile (850) 245-6127

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CERTIFICATE OF COMPLIANCE WITH FONT REQUIREMENT I certify that the font used in this brief is Times New Roman 14 point and in compliance with Rule 9.210, Florida Rules of Appellate Procedure.

George N. Meros, Jr. Florida Bar No. 263321 Michael A. Sexton Florida Bar No. 131520 Jonathan P. Kilman Florida Bar No. 555274

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