IN THE SUPREME COURT OF FLORIDA

FLORIDA DEMOCRATIC PARTY) Petitioner, ) ) Case No.: SC04-2072 v. ) 1st DCA Case No.: 1D04-4667 ) GLENDA HOOD, Secretary of ) State of Florida, and THE ) FLORIDA DEPARTMENT OF ) STATE, ) Respondent. ______/

ON CERTIFICATION OF A QUESTION OF GREAT PUBLIC IMPORTANCE FROM THE DISTRICT COURT OF APPEAL, FIRST DISTRICT COURT OF APPEALS OF FLORIDA ______

BRIEF OF AMICI CURIAE OF CONGRESSMAN ROBERT WEXLER, COMMISSIONER ADDIE GREENE, COMMISSIONER BURT AARONSON AND TONY FRANSETTA

AMICI, CONGRESSMAN ROBERT WEXLER, COMMISSIONER

ADDIE GREENE, COMMISSIONER BURT AARONSON AND TONY

FRANSETTA., submit this amicus curiae brief in support of Petitioner Florida

Democratic Party and ask this Court to declare Emergency Rule ISER04-1 insufficient under section 120.54(4), Florida Statutes (2004) and Florida case law.

I. STATEMENT OF INTEREST

Amici are political candidates and voters who have brought two separate actions challenging Respondents’ compliance with federal constitutional and state election law requirements in promulgating rules and implementing the manual recount provisions mandated in Florida law. § 102.166, Fla. Stat. (2004).

Amicus ROBERT WEXLER is the Congressman who represents the 19th

Congressional District for Florida. He is also a voter who has voted in past elections in Palm Beach County and who intends to vote in this very next election cycle.

Amicus ADDIE GREENE is a Palm Beach County Commissioner, who is a candidate for reelection in this election cycle and a voter.

Amicus BURT AARONSON is a Palm Beach County Commissioner, who is a candidate for reelection in this election cycle and a voter.

Amicus TONY FRANSETTA is a voter who resides in Wellington, Palm

Beach County, who voted in past elections in Wellington, Palm Beach County, and who intends to vote in this election cycle.

Jointly, Amici are plaintiffs in two actions, still pending that implicate the

Emergency Rule at issue in this matter. One, decided earlier this week by the U.S.

District Court for the Southern District of Florida (Case No. 04-80216-CIV-

COHN) and prominently cited by the court below, challenges the Emergency Rule on federal constitutional grounds. Movants intend to seek reconsideration of that ruling and, if unsuccessful, appellate review of that ruling. The other challenges the Secretary of State’s compliance with Florida election law in promulgating her original rule that no manual recounts will be conducted on touchscreen voting machines because such recounts are impossible, must be considered in light of the

Emergency Rule, and is now pending before this Court (SC04-1844) on a motion for discretionary review.

Moreover, as Judge Cohn stated in footnote 11 of his ruling in

Amici’s case, an interpretation of Florida law that finds the Emergency Rule to be invalid would change the outcome of his decision.

II. SUMMARY OF ARGUMENT

The conduct of elections and the process of counting and recounting, when necessary, ballots are among the most profound undertakings conducted by a State.

To assure that our democracy operates in a manner that maintains the confidence of the people and the integrity of the process, shortcuts and other ad hoc devices that change the conduct of elections should be scrutinized fully and carefully.

Because of the unusual circumstances under which this Emergency Rule was promulgated, it requires this Court look beyond procedural compliance, which remains questionable in the instant matter, to the substance of what the Emergency

Rule accomplished. Amici submit that the rule, promulgated on the eve of trial in their case as a litigation tactic rather than an attempt to develop a legitimate uniform procedure for manual recounts, fails to comply with the statutory requirement that manual recounts be conducted by canvassing boards examining ballots to ascertain whether the voter made a definite choice.

Because the Emergency Rule affects not just the immediate election taking place November 2, 2004, but elections in the future, the relief that is appropriate should include both short-term and long-term elements to assure that voters entitled to a manual recount have their ballots recounted in like manner that does not depend on where they reside or whether their county of residence opted for one election mechanism or another.

III. ARGUMENT

A. The Question Certified is of Great Public Importance

The right to vote is “of the most fundamental significance under our constitutional structure.” Illinois Bd. of Elections v. Socialist Workers Party, 440

U.S. 173, 184 (1979). As a result, “all qualified voters have a constitutionally protected right ‘to cast their ballots and have them counted.’” Gray v. Sanders,

372 U.S. 368, 380 (1963). Where a state provides for a recount as Florida does in

§§ 102.141 and 102.166, Florida Statutes (2004), it is an integral part of the election process. Gore v. Harris, 773 So.2d 524 (Fla. 2000)(Pariente, J., concurring). See also Roudebush v. Hartke, 405 U.S. 15, 25 (1972). For these reasons, the issue of whether the Secretary of State has complied with the requirement that she promulgate a rule that provides a meaningful manual recount procedure for those counties utilizing touchscreen voting machines is of great public importance, implicating the constitutional right that the U.S. Supreme

Court has called both fundamental and preservative of all rights. Yick Wo v.

Hopkins, 118 U.S. 356, 370 (1886).

B. An Election-Day or Post-Election Decision Would Not be Moot

The proper process for conducting a manual recount transcends the current election. It applies not only to this election but to elections that will occur in the future. As a result, even if relief was not available for the present election cycle, a ruling by this Court will inform and guide elections officials for subsequent cycles.

Moreover, as evidenced by the significant election-related litigation occurring here and in other states, the issue is likely to be one that recurs, as new rules on the eve of election are likely to be promulgated to comply with court rulings. As a result, this matter fits is the prototypical example of a case “capable of repetition, yet evading review” because the challenged action is too short in duration to be fully litigated prior to its cessation or expiration and there is a reasonable expectation that the same complainants would be subjected to the same action again. See Illinois Elections Bd., supra, 440 U.S. at 187; Sosna v. Iowa, 419

U.S. 393 (1975). C. This Court Has Available to It a Wide Variety of Remedies

The Emergency Rule, ISER04-1, is a repackaged version of the

Department’s previous policy of avoiding manual recounts on touchscreen voting machines. The new rule requires rechecking “ballot image totals” without requiring the capacity for determining, from independent ballot images, whether an undervote was intentional in a re-examination of the ballot images. As such, it is a machine recount rather than a manual recount. It would be impossible days before the election to check individual ballot images for intent with the current touchscreen voting technology used in Florida, and thus the Department has failed its obligation to approve voting systems that comply with Florida law. See Fla.

Stat. § 101.5606 (2002). However, there are short-term remedial measures that can be taken with these systems in the next few days to ensure greater accuracy in counting individual votes, so that the possibility of computer error or some form of tampering can be reduced. Longer-term remedies are also available.

Many of the short term remedies can be found in a report issued by the

Brennan Center for Justice. See Recommendations of the Brennan Center For

Justice and the Leadership Conference on Civil Rights for Improving Reliability of

Direct Recording Electronic Voting Systems (hereafter “Brennan Center Report”).1

The first recommendation of the Brennan Center Report is retaining independent

1 http://www.brennancenter.org/programs/downloads/voting_systems_final_recommendations.pdf security experts. While this cannot be accomplished in such a short time frame, the reports of other security experts examining touchscreen systems for flaws referenced in the Brennan Center Report, such as the Science Applications

International Corporation’s (“SAIC”) report from Maryland can be reviewed and implemented to the extent practicable. Brennan Center Report, at 4 n.2.

Strengthening the security of the physical machines, the communications systems, and the networks and servers can be accomplished in a short amount of time as well. Increasing security of the physical touchscreen machines can be implemented by procuring numbered labels, or even tamper tape, which will be attached to the seams of individual machines, recorded, and inspected for tampering. Securing communication systems, such as modems, can be accomplished by eliminating a modem connection and hand carrying election results directly into the election office. Securing network systems and servers can be accomplished by connecting the election management system only in the election office. Furthermore, the sequence of connecting networks only after the totals have been completed and printed will avoid tampering with ballot image totals.

Another recommendation of the Brennan Center Report, and a method adopted in other states with touch screen systems such as California, is randomized parallel testing. Random parallel testing is a way, prior to the election, to randomly select individual machines and simulate an actual election in every way.

This process guards against malfunctions and errors and ensures accuracy.

Brennan Center Report, p. 11. Increased pre-election logic and accuracy testing, to the extent practicable, by running automatic scripts when no votes have been cast, and by taking a small amount of touch screen voting machines to simulate casting ballots on a machine, would also increase accuracy and guard against errors.

A further method of ensuring accuracy of recording ballot images in the touch screen voting systems is to check the precinct register and the counters in the individual touch screen machines periodically throughout the election to ensure that the number of voters on the register matches the machine totals. At this time, some counties in Florida utilize this system only after the election is completed, and some may not use it at all.

Another short term remedy to minimize errors with touch screen voting systems would be to make an increased number of paper ballots available at polling places. If there have been malfunctions with touch screen voting equipment at the precinct, or if people are uncomfortable with the technology of touch screen voting machines, they can use a paper ballot much in the way that absentee voters cast a paper ballot. A final recommendation of the Brennan Center Report is to develop incident handling procedures. In other words, standard procedures should be implemented to respond to reports of things like security incidents or machine malfunctions.

Brennan Center Report, p. 12. Such procedures will be sure to respond to problems, and thus increase accuracy and voter confidence in the election process.

The aforementioned are all short-term remedies that this Court could impose if the Supreme Court of Florida were to accept jurisdiction, and the petitioners were to prevail upon review of their claims. Each one of these remedies does a small part in guarding against computer error, and ensuring that ballots are accurately cast so that, in the case of a manual recount, the rechecking of ballot image totals would be something more that plain arithmetic.

IV. CONCLUSION

For the foregoing reasons, the ruling of the First District Court of Appeals should be reversed and appropriate remedies, both short-term and long-term, should be ordered.

Respectfully submitted,

LIGGIO, BENRUBI & WILLIAMS, P.A. 1615 Forum Place Suite 3B, The Barristers Building West Palm Beach, FL 33401 (561) 616-3333 (o) (561) 616-3266 (fax Email: [email protected]

By: JEFFREY M. LIGGIO, ESQ. Florida Bar No.: 357741

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been furnished by U.S. Mail to the counsel on the attached Counsel Service List this 29th day of October, 2004.

JEFFREY M. LIGGIO, ESQ.