In the District Court of Appeal of the State of Florida Fourth District

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT

CASE NO.4D18-XXXX L.T. Case Number CACE 18-026470

RICK SCOTT FOR SENATE,

Appellant,

vs.

BRENDA C. SNIPES, solely in her capacity as Supervisor of Elections of Broward County, Florida, and the BROWARD COUNTY CANVASSING BOARD,

Appellees.

On Appeal from a Non-Final Order of the Circuit Court of the Seventeenth Judicial Circuit, in and for Broward County, Florida

APPENDIX TO APPELLANT'S EMERGENCY INITIAL BRIEF

Aliette D. Rodz, Esq. Amber Stoner, Esq. SHUTTS & BOWEN LLP RECEIVED, 11/17/20188:39AM,Clerk, FourthDistrictCourt ofAppeal 200 South Biscayne Blvd., Suite 4100 Miami, Florida 33131 Telephone: (305)347-7342

-and-

215 South Monroe Street, Suite 804 Tallahassee, Florida 32301 Telephone: (850) 241-1717

shutts.com I FORT LAUDERDALE I JACKSONVILLE I MIAMI I ORLANDO I SARASOTA I TALLAHASSEE I TAMPA I WEST PALM BEACH

INDEX TO APPENDIX

Page Nos. DOCUMENT DESCRIPTION DATE 001-005 Verified Complaint for Declaratory and Injunctive November 10, 2018 Relief 006-015 Plaintiff Rick Scott for Senate's Emergency Motion November 10, 2018 for a Temporary Injunction and Supporting Memorandum of Law 016-027 Broward County Canvassing Board's Opposition to November 11, 2018 Plaintiff's Emergency Motion for a Temporary Injunction with attached Declaration of Daphnee Sainvil 028-038 Broward County Canvassing Board's Supplemental November 14, 2018 Opposition to Plaintiff's Emergency Motion for a Temporary Injunction 039-137 Transcript of 11/15/18 Hearing before Circuit Court November 15, 2018 Judge Jack Tuter 138-144 Notice of Filing Demonstrative Aid with attached November 16, 2018 Demonstrative Aid used at 11/15/18 Hearing 145 Order on Plaintiff, Rick Scott for Senate's, November 16, 2018 Emergency Motion for Temporary Injunction 146-150 Notice of Appeal November 16, 2018 151-159 Intervenor Bill Nelson for U.S. Senate and the November 14, 2018 Democratic Senatorial Campaign Committee's Brief in Opposition to Plaintiff Caldwell's and Plaintiff Scott's Requests to Invalidate Lawful Ballots Cast by Eligible Voters

shutts.com I FORT LAUDERDALE I JACKSONVILLE I MIAMI I ORLANDO I SARASOTA I TALLAHASSEE I TAMPA I WEST PALM BEACH Respectfully submitted,

SHUTTS & BOWEN LLP 200 South Biscayne Blvd., Suite 4100 Miami, Florida 33131 Telephone: (305) 347-7342

-and-

215 South Monroe Street, Suite 804 Tallahassee, Florida 32301 Telephone: (850) 241-1717

By:/ s/ Aliette D. Rodz Aliette D. Rodz, Esq. Florida Bar No. 0173592 [email protected] Amber Stoner, Esq. Florida Bar No. 109281 amberstoner shutts.corn

Attorneysfor Appellant

shutts.com I FORT LAUDERDALE I JACKSONVILLE I MIAMI I ORLANDO I SARASOTA I TALLAHASSEE I TAMPA I WEST PALM BEACH CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was sent via Electronic Mail this 16th day of November, 2018 to:

Anthony H. Quackenbush, Esq. Mitchell W. Berger, Esq. Email: [email protected]; Email: John J. Uustal, Esq. [email protected]; Email: [email protected]; Leonard K. Samuels, Esq. Michael A. Hersh, Esq. Email: Email: [email protected]; [email protected]; Catherine C. Darlson, Esq. Andrew Bryan Zelmanowitz, Esq. Email: cc(d &,_ kulaw.com; Email: Todd R. Falzone, Esq. [email protected]; Email: [email protected]; Berger Singerman, LLP Kelley/Uustal Fort Lauderdale Office 500 N Federal Highway Suite 200 Fort Lauderdale, FL 33301 350 East Las Olas Boulevard Telephone:(954) 522-6601 Suite 1000 Fort Lauderdale, FL 33301 Phone:(954) 525-9900 Fax:(954) 523-2872

Eugene K. Pettis, Esq. Burnadette Norris-Weeks, Esq. Email: [email protected] Email: [email protected] Debra P. Klauber, Esq. Austin Pamies Norris Weeks LLC Email: [email protected] 401 North Avenue of the Arts Haliczer Pettis & Schwamm,PA (NW 7th Avenue) One Financial Plaza, Fort Lauderdale, Florida 33311 100 SE 3rd Avenue, Phone:(954) 768-9770 Seventh Floor, Fort Lauderdale, FL 33394 Phone:(954) 523-9922

shutts.com I FORT LAUDERDALE I JACKSONVILLE I MIAMI I ORLANDO I SARASOTA I TALLAHASSEE I TAMPA I WEST PALM BEACH Andrew Meyers, Esq. George S. LeMieux, Esq. Email: [email protected]; Email: [email protected]; Rene Harrod, Esq. Michael W. Marcil, Esq. Email: [email protected]; Email: [email protected]; Annika Ashton, Esq. Heather C. Costanzo, Esq Email: [email protected]; Email: [email protected]; Scott Andron, Esq. Jacqueline DerOvanesian, Esq Email: [email protected]; Email: [email protected] Joseph Jarone, Esq. Gunster Law Firm Email: [email protected]; 450 East Las Olas Boulevard Broward County Attorney's Office Suite 1400 Office of the County Attorney Ft. Lauderdale, FL 33301-4206 Governmental Center, Suite 423 Phone:(800) 330-1980 Fort Lauderdale, FL 33301-1818 United States Phone:(954) 357-7600

Benedict Kuehne, Esq. Joel Perwin, Esq. Email: [email protected] Email: [email protected]; Larry S. Davis, Esq. Joel S. Perwin, P.A. Email: [email protected]; 169 E. Flagler St. Alfred I. DuPont Building Esq. Michael T. Davis, Suite 1422 Email: [email protected]; Miami, FL 33131-1212 Shana J. Korda, Esq. Phone:(305) 779-6090 Email: [email protected]; Mathew T. Hatfield, Esq. Email: [email protected], Law Offices of Benedict P. Kuehne, P.A. 100 S.E. Second Street Suite 3550 Miami, Florida 33131 Phone:(786) 369-0213

Michael S. Olin, Esq. Michael J. Ryan, Esq. Email: [email protected] Email: [email protected] BUCKNER + MILES Krupnick Campbell Malone Buser 3350 Mary Street Slama Miami, Florida 33133 Hancock Liberman P.A. Phone:(305) 964-8003 12 S.E. 7 Street, Suite 801 Fort Lauderdale, FL 33301 Phone (954) 763-8181

shutts.com 1 FORT LAUDERDALE I JACKSONVILLE I MIAMI I ORLANDO I SARASOTA 1 TALLAHASSEE I TAMPA 1 WEST PALM BEACH Jonathan Youngwood, Esq. Kevin J. Hamilton, Esq. Email: [email protected] Email: [email protected] Isaac Rethy, Esq. Perkins Coie LLP Email: [email protected] 1201 Third Avenue Nihara Choudhri, Esq. Suite 4900 Email: [email protected] Seattle, DC 981-3099 Joshua Polster, Esq. Phone:(206) 359-8741 Email: [email protected] Pro Hac Vice Simpson Thacher & Barlett, LLP 425 Lexington Avenue New York, NY 10017 Phone:(212) 455-3539 Pro Hac Vice

Jonathan Brater, Esq. Email:j [email protected] Myrna Perez, Esq. Email: [email protected] The Brenan Center for Justice 120 Broadway New York, NY 10271 Phone:(646) 292-8373 Pro Hac Vice

/s/ Aliette D. Rodz Aliette D. Rodz

BEACH shutts.com I FORT LAUDERDALE I JACKSONVILLE I MIAMI I ORLANDO I SARASOTA I TALLAHASSEE I TAMPA I WEST PALM Filing # 80646191 E-Filed 11/10/2018 11:27:26 PM

IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY,FLORIDA

RICK SCOTT FOR SENATE,

Plaintiff; CASE NO.

v. JUDGE

BRENDA C. SNIPES, solely in her capacity Verified Complaint for Declaratory as Supervisor of Elections of Broward and Injunctive Relief County, Florida, and THE BROWARD COUNTY CANVASSING BOARD,

Defendants.

VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Plaintiff Rick Scott for Senate ("Plaintiff'), through its undersigned counsel, sues

Defendants Brenda C. Snipes, solely in her capacity as the Supervisor of Elections of Broward

County, Florida, and the Broward County Canvassing Board (collectively, "Defendants"), and alleges: JURISDICTION AND VENUE 1. This is a lawsuit for declaratory and injunctive relief under § 86.011, Fla. Stat.

2. Venue is proper in Broward County, Florida because Defendants maintain their

principal places of business in Broward County and because all or part of the claim for relief at

issue in this litigation arose in Broward County. THE PARTIES 3. Plaintiff is a federal campaign committee authorized to conduct political activity

throughout Florida, including by supporting the candidacy of Rick Scott for election as United

States Senator from Florida during the 2018 general election.

4. Defendants are responsible for overseeing the conduct of elections in Broward

App.001 County, including but not limited to the conduct of election personnel throughout the county in

the post-election process.

5. Plaintiff is supporting candidates to be voted upon in the election in Broward

County and throughout Florida. Plaintiff's interests in enforcing Florida's election laws, and

ensuring a fair election, are adversely affected by the conduct complained of below.

6. All conditions precedent to the filing of this lawsuit have been performed, have

been waived, or are otherwise excused.

COUNT I — REQUEST FOR DECLARATORY AND INJUNCTIVE RELIEF ENJOINING DEFENDANTS' SUBMISSION OF ANY RETURNS AFTER THE UNOFFICIAL RETURN DEADLINE,EXCEPT FOR THOSE RETURNS SPECIFIED IN 101.6952(5). FLA. STAT. 7. Plaintiff adopts and realleges the allegations of paragraphs 1-6 above.

8. Section 102.141(5), Fla. Stat., the main provision of the Florida Election Code at

issue in this lawsuit, governs the submission of voting returns to the Florida Department of

State. That provision states (emphasis added): The canvassing board shall submit on forms or in formats provided by the division unofficial returns to the Department of State for each federal, statewide, state, or multicounty office or ballot measure no later than noon on the third day after any primary election and no later than noon on the fourth day after any general or other election. Such returns shall include the canvass of all ballots as required by subsection (2). 9. The language of§ 102.141(5) is uncomplicated and unambiguous.

10. Despite the fact that all unofficial returns shall be submitted to the Department of

State as required by § 102.141(5), by a certain deadline (i.e., noon today), Defendants

proceeded to count additional ballots after the noon deadline (hereinafter referred to as the

"Illegal Ballots") and after submitting their unofficial return to the Department of State (the

"Unofficial Return").

11. Between the Unofficial Return and the official return, which shall be filed by noon

on the 12th day following the general election with the Department of State, under § 2

App.002 102.112(2), Fla. Stat., the only ballots that may be added to the return are overseas military

ballots in accordance with § 101.6952(5), Fla. Stat. Section 101.6952(5) states (emphasis

added):

A vote-by-mail ballot from an overseas voter in any presidential preference primary or general election which is postmarked or dated no later than the date of the election and is received by the supervisor of elections of the county in which the overseas voter is registered no later than 10 days after the date of the 'election shall be counted as long as the vote-by-mail ballot is otherwise proper.

12. Upon information and belief, Defendants intend to add the Illegal Ballots to

Defendants' official return, in violation of Florida law.

13. As of the filing of this lawsuit, Defendants have failed and refused to confirm

whether they will count and/or add the Illegal Ballots to Defendants' official return, or

maintain the Illegal Ballots segregated at all times and not included in Defendants' official

return. There is no basis or law that would require or permit Defendants to count ballots after

the submission of the Unofficial Return, except for those ballots specified in § 101.6952(5).

14. There is a present, bona fide controversy over whether Defendants are presently

violating the mandates of § 102.141(5).

15. Plaintiff's, its candidates', and its voters' rights will be violated if the Election

Code is not followed, as Defendants' ongoing violation of § 102.141(5) jeopardizes the

integrity of, and may alter the outcome of, the 2018 general election.

16. Plaintiff has no adequate remedy at law.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays for judgment as follows:

a. A declaratory judgment that Defendants' submission of an official return including the Illegal Ballots violates § 102.141(5), Fla. Stat.

App.003 b. A temporary and permanent injunction ordering Defendants to maintain the Illegal

Ballots segregated at all times and not included in Defendants' official return.

c. The costs of this lawsuit, together with reasonable attorney's fees to the extent provided by law; and

d. Such further relief as the Court deems just and proper.

VERIFICATION

I hereby swear or affirm under penalty of perjury that the foregoing is true and

correct to the best of my knowledge.

/s/ Aliette D. Rodz Counsel for Plaintiff

App.004 Dated: November 10, 2018 Respectfully submitted,

/s/ Aliette D. Rodz Aliette D. Rodz, Esq. Florida Bar No. 0173592 Email: [email protected] SHUTTS & BOWEN LLP 200 S. Biscayne Blvd., Suite 4100 Miami, FL 33131 Office:(305) 347-7342 Facsimile:(305) 347-7742

-and-

George T. Levesque, Esq. Florida Bar No. 555541 Email: george.levesque@grayrobinson.corn Leslie Arsenault Metz, Esq. Florida Bar No. 98865 Email: [email protected] Jason Zimmerman, Esq. Florida Bar No. 104392 Email:jason.zimmerman@grayrobinson.corn Jeff Aaron, Esq. Florida Bar No. 123473 Email:[email protected] GRAYROBINSON,P.A. 515 N. Flagler Dr., Suite 1425 West Palm Beach, FL 33401 Office:(561) 268-5727 Facsimile: (561) 886-4101

Attorneysfor Plaintiff

TLHDOCS 14066783 1

App.005 Filing # 80646191 E-Filed 11/10/2018 11:27:26 PM

IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY,FLORIDA

RICK SCOTT FOR SENATE,

Plaintiff CASE NO.

v. JUDGE Emergency Motion for a BRENDA C. SNIPES, solely in her Plaintiff's and Supporting capacity as Supervisor of Elections of Temporary Injunction Law Broward County, Florida, and the Memorandum of BROWARD COUNTY CANVASSING BOARD,

Defendants.

PLAINTIFF RICK SCOTT FOR SENATE'S EMERGENCY MOTION FOR A TEMPORARY INJUNCTION AND SUPPORTING MEMORANDUM OF LAW

Plaintiff Rick Scott for Senate ("Plaintiff'), through its undersigned counsel, respectfully

moves this Court pursuant to Fla. R. Civ. P. 1.610(a) for the issuance of a Temporary Injunction,

ordering Defendants, Brenda C. Snipes, solely in her capacity as Supervisor of Elections of

Broward County, Florida, and the Broward County Canvassing Board (collectively,

"Defendants"), (i) to immediately cease violating § 102.141(5), Fla. Stat.; and (ii) to segregate,

from the ballots included in Defendants' forthcoming official return to the Florida Department of

State, those ballots that Defendants failed to canvass by the statutory, unofficial return deadline

of noon on Saturday, November 10, 2018, in violation of § 102.141(5).

Defendants' ongoing violation of § 102.141(5), through their failure to canvass all ballots

by the unofficial return deadline, and through their stated plan to continue canvassing ballots past

that deadline and to include (as yet) non-canvassed ballots in Defendants' forthcoming official

return, has inflicted and continues to inflict irreparable injury upon Plaintiff Respectfully, this

App.006 Court should issue immediate relief to protect both Plaintiff and the integrity of the 2018 general election.

As attested in the attached Certificate of Service, Plaintiff concurrently is serving

Defendants with the Verified Complaint for Declaratory and Injunctive Relief and this Motion by email and facsimile.

Dated: November 10, 2018 Respectfully submitted,

-and-

George T. Levesque, Esq. Florida Bar No. 555541 Email: [email protected] Leslie Arsenault Metz, Esq. Florida Bar No. 98865 Email: [email protected] Jason Zimmerman, Esq. Florida Bar No. 104392 Email:jason.zimmerman@grayrobinson.corn Jeff Aaron, Esq. Florida Bar No. 123473 Email:[email protected] GRAYROBINSON,P.A. 515 N. Flagler Dr., Suite 1425 West Palm Beach, FL 33401 Office:(561) 268-5727 Facsimile:(561) 886-4101

Attorneysfor Plaintiff

App.007 MEMORANDUM OF LAW IN SUPPORT OF EMERGENCY MOTION FOR A TEMPORARY INJUNCTION

Plaintiff respectfully requests, on an emergency basis, that the Court issue a

Temporary Injunction, ordering Defendants (i) to immediately cease violating § 102.141(5), Fla.

Stat.; and (ii) to segregate, from the ballots included in Defendants' forthcoming official return to

the Florida Department of State, those ballots that Defendants failed to canvass by the statutory,

unofficial return deadline of noon on Saturday, November 10, 2018, in violation of § 102.141(5),

and to ensure that any ballots counted after the deadline are not added to Defendants' official

return of Sunday, November 18, 2018 at 5 p.m. In support of this Motion, Plaintiff states:

I. Under § 102.141(5), Fla. Stat., County Election Officials Must Canvass "All Ballots" by the Statutory. Unofficial Return Deadline, Subiect Only to a Narrow Excention.

Section 102.141(5), Fla. Stat., the provision of the Florida Election Code primarily at

issue here, provides that county election officials must canvass "all ballots" by the statutory,

unofficial return deadline of noon on the fourth day after a general election. That provision states

(emphasis added):

The canvassing board shall submit on forms or in formats provided by the division unofficial returns to the Department of State for each federal, statewide, state, or multicounty office or ballot measure . . . no later than noon on the fourth day after any general or other election. Such returns shall include the canvass of all ballots as required by subsection (2).

The language of § 102.141(5) is uncomplicated and unambiguous. Under the statute, a

Canvassing Board's unofficial return, by the statutory deadline (i.e., noon today), "shall include

the canvass of all ballots . . . ." § 102.141(5). The only exception that the Florida Election Code

codifies for this unambiguous mandate pertains to the processing of the absentee ballots of

overseas voters. In this regard, § 101.6952(5), Fla. Stat. explains that an absentee ballot from

such voters that "is postmarked or dated no later than the date of the election and is received by

App.008 the supervisor of elections . . no later than 10 days after the date of the election shall be counted

as long as the vote-by-mail ballot is otherwise proper." No other provision of the Florida

Election Code excepts county election officials from the obligation to canvass "all ballots" by the

unofficial return deadline. See § 102.141(5).

II. Defendants Are Presently Violating the Mandates of 4 102.141(5).

As outlined in Plaintiff's Verified Complaint for Declaratory and Injunctive Relief (the

"Complaint") at ¶¶ 10-13, Defendants are presently violating the clear mandates of §

102.141(5).

First, despite the fact that § 102.141(5) obligated Defendants to canvass, by the unofficial

return deadline of noon today, all ballots, Defendants proceeded to canvass additional ballots

after that deadline (hereinafter, the "Illegal Ballots"), and specifically after submitting their

unofficial return to the Department of State. Complaint at ¶ 10. Between the time of an unofficial

return and an official return (on the 12th day after a general election, see § 102.112(2), Fla. Stat.),

the only ballots that county election officials may canvass are the absentee ballots of overseas

voters. See Complaint at ¶ 11; § 101.6952(5). Upon information and belief, Defendants intend to

include, in Defendants' forthcoming official return, the Illegal Ballots, in direct contravention of

§ 102.141(5). Complaint at ¶ 12. There is no legal basis that permits Defendants to canvass

ballots (and then submit such ballots as part of an official return) after their submission of the

unofficial return, except as provided in § 101.6952(5) regarding the canvassing of overseas

voters' absentee ballots. Id. at ¶ 13.

As of the filing of Plaintiff's Complaint, Defendants have failed and refused to confirm

whether they will count and/or add, to Defendants' official return, the Illegal Ballots, or maintain

App.009 the Illegal Ballots segregated at all times and excluded from Defendants' official return (as they

should be, consistent with § 102.141(5)). Id. at ¶ 13.

III. Plaintiff Satisfies the Requirements for Obtaining a Temporary Injunction.

A. The Legal Standards for Obtaining Injunctive Relief.

This Court should issue an emergency temporary injunction where necessary to avoid

immediate and irreparable injury to Plaintiff. A temporary injunction may be granted without

notice upon a showing, by affidavit or verified pleading, that "immediate and irreparable injury,

loss, or damage will result to the movant before the adverse party can be heard in opposition[.]"

Fla. R. Civ. P. 1.610(a)(1)(A).1 An applicant for a temporary injunction also must certify to the

Court the efforts, if any, "that have been made to give notice and the reasons why notice should

not be required." Rule 1.610(a)(1)(B).

The standard for granting a temporary injunction under Rule 1.610 is well established.

The Court should examine four factors, including whether: (1) there is a substantial likelihood

that the movant will succeed on the merits; (2) the movant will suffer irreparable injury if the

injunction is not granted; (3) there is no adequate remedy at law; and (4) the public interest will

be served by the temporary injunction. See U.S. 1 Office Corp. v. Falls Home Furnishings, Inc.,

655 So. 2d 209, 210 (Fla. 3d DCA 1995)(affirming application for a temporary injunction where

plaintiff made showing of all four factors); see also Zuckerman v. Professional Writers of

Florida, Inc., 398 So. 2d 870, 871 (Fla. 4th DCA 1981)(affirming temporary restraining order

and requiring bond).

1 Rule 1.610(a)(1)(A)—(B) provides: "A temporary injunction may be granted without written or oral notice to the adverse party or his attorney only if: (A) it appears from the specific facts shown by affidavit or verified pleading that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and (B) the movant's attorney certifies in writing any efforts that have been made to give notice and the reasons why notice should not be required."

App.010 In the context of requests for injunctive relief in the election setting, the Supreme Court

of the United States has stated that "[i]n awarding or withholding immediate relief, a court is

entitled to and should consider the proximity of a forthcoming election and the mechanics and

complexities of election laws, and should act and rely upon general equitable principles."

Reynolds v. Sims, 377 U.S. 533, 585 (1964), See also Purcell v. Gonzalez, 549 U.S. 1, 4(2006)

(denying injunction to suspend voter identification rules "[Oven the imminence of the election"

and the State's "compelling interest in preserving the integrity of its election process" and

"preventing voter fraud"(internal quotation marks omitted)).

B. Plaintiff Satisfies the Four Requirements for Obtaining Injunctive Relief.

Plaintiff satisfies the four requirements under Florida law for obtaining injunctive relief.

First, Plaintiff has established a strong likelihood of success on the merits. Section

102.141(5) clearly and unambiguously requires county election officials to canvass all ballots by

the statutory, unofficial return deadline of noon on the fourth day after a general election (i.e., by

noon today, November 10, 2018). The only exception that the Florida Election Code provides

to this unambiguous mandate pertains to the canvassing of overseas voters' absentee ballots,

which may occur later. See § 101.6952(5). Defendants simply failed to fulfill their obligation to

canvass all votes by the unofficial return deadline and, even more troublingly, are presently

engaged in the active violation of § 102.141(5), including by canvassing the Illegal Ballots, and

by refusing to segregate and not count such Illegal Ballots from the ballots included in the

forthcoming official return.

Second, the Complaint clearly shows that Plaintiff will suffer immediate and irreparable

injury absent the Court's issuance of a temporary injunction. See Complaint at TR 10-13, 15. The

general election has taken place and these post-election matters were to have concluded by noon

App.011 today. See § 102.141(5). Unless this Court grants immediate relief, Plaintiff's interest in ensuring

a fair and orderly election will be unduly burdened by the canvassing of the Illegal Ballots,

flowing from Defendants' active and ongoing violation of § 102.141(5). See Lantana v.

Pelczynski, 303 So. 2d 326, 327 (Fla. 1974)("There is no question that the State has the power

and the duty to insure free and fair elections."); see also Siegel v. LePore, 234 F.3d 1163, 1180

(11th Cir. 2000) (acknowledging that regulations governing the electoral process may be

necessary to protect a State's "interest in conducting an orderly and fair election"). Moreover, as

discussed above, notice of the Complaint and the instant Motion is being served

contemporaneously on Defendants. Due to the limited time remaining, however, respectfully this

Court should adjudicate this issue immediately. See United States v. Metro. Dade Cnty., 815 F.

Supp. 1475, 1478-79 (S.D. Fla. 1993) ("Where an impending election is imminent and the

election machinery is already in progress, a Court may take into account equitable considerations

when prescribing immediate relief") (citing Reynolds, 377 U.S. at 585); cf. Siegel, 234 F.3d at

1177 (suggesting that harm from an election that is "underway or imminent" is sufficient to

satisfy the "immediate and irreparable" standard).

Third, Plaintiff does not have an adequate remedy at law. As noted above, the election

took place and these post-election matters were to have concluded by noon today, subjecting

Plaintiff to immediate and irreparable injury as a result of Defendants' conduct. Defendants'

violation of § 102.141(5) will increase the risk of improper counting of voters' ballots, which the

courts cannot correct in the future, after the conclusion of the election process. Plaintiff's only

pathway to achieving relief is through this Court's issuance of a temporary injunction, which

would at least help ameliorate Defendants' election law violations.

App.012 Fourth and finally, there is a strong public interest in enforcing state election laws and

protecting the fundamental right to vote. See, e.g., Friedman v. Snipes, 345 F. Supp. 2d 1356,

1376 (S.D. Fla. 2004) (acknowledging the State's interest in regulating elections in order to

avoid chaos, provide order, and ensure a "fair and honest election"); Kennedy v. Riley, No.

2:05cv1100-MHT, 2007 WL 1461746, at *2(M.D. Ala. 2007)(fmding that the public interest is

served by protecting the "'fundamental political right' to vote)(quoting Yick Wo v. Hopkins,

118 U.S. 356, 370 (1886)); see also Storer v. Brown, 415 U.S. 724, 730(1974) (recognizing that

"as a practical matter, there must be a substantial regulation of elections if they are going to be

fair and honest and if some sort of order, rather than chaos, is to accompany the democratic

process."). The public interest factor thus weighs overwhelmingly in favor of requiring

Defendants to strictly comply with the requirements of§ 102.141(5).

IV. CONCLUSION

For these reasons, Plaintiff respectfully requests, on an emergency basis, that the Court

issue a Temporary Injunction, ordering Defendants (i) to immediately cease violating §

102.141(5), Fla. Stat.; and (ii) to segregate, and not count, from the ballots included in

Defendants' forthcoming official return to the Florida Department of State, those ballots that

Defendants failed to canvass by the statutory, unofficial return deadline of noon on Saturday,

November 10, 2018, in violation of § 102.141(5). Plaintiff also requests that the Court order such

further relief as the Court deems just and proper.

Dated: November 10, 2018

App.013 CERTIFICATE OF SERVICE

I hereby certify that on this 10th day of November, 2018, I did cause a true and correct copy of the Complaint, and the foregoing Plaintiff's Emergency Motion for Temporary

Injunction and Supporting Memorandum of Law, to be served via facsimile and email upon:

Burnadette Norris-Weeks Florida Bar No. 949930 Email: [email protected]; [email protected] AUSTIN PAMIES NORRIS WEEKS,LLC th 401 N.W. 7 Ave. Fort Lauderdale, FL 33311 Office: (954) 768-9770

Attorneys for Defendant Susan Bucher, solely in her capacity as the Supervisor of Electionsfor Broward County, Florida

Scott Andron, Assistant County Attorney Florida Bar No. 112355 Email: [email protected] BROWARD COUNTY ATTORNEY'S OFFICE Broward County Governmental Center 115 S. Andrews Ave., Suite 423 Fort Lauderdale, FL 33301 Office: (954) 357-7645

Attorneysfor Defendant Broward County Canvassing Board

Respectfully submitted,

/s/ Aliette D. Rodz Aliette D. Roth, Esq. Florida Bar No. 0173592 Email: [email protected] SHUTTS & BOWEN LLP 200 S. Biscayne Blvd., Suite 4100 Miami, FL 33131 Office:(305) 347-7342 Facsimile: (305) 347-7742

-and-

App.014 George T. Levesque, Esq. Florida Bar No. 555541 Email: [email protected] Leslie Arsenault Metz, Esq. Florida Bar No. 98865 Email: [email protected] Jason Zimmerman, Esq. Florida Bar No. 104392 Email:jason.zimmerman@grayrobinson.com Jeff Aaron, Esq. Florida Bar No. 123473 Email:jeff [email protected] GRAYROBINSON,P.A. 515 N. Flagler Dr., Suite 1425 West Palm Beach, FL 33401 Office:(561) 268-5727 Facsimile:(561) 886-4101

Attorneysfor Plaintiff

App.015 IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY,FLORIDA

RICK SCOTT FOR SENATE, CASE NO.:

Plaintiff,

BRENDA SNIPES, solely in her capacity as Supervisor of Elections of Broward County, THE BROWARD COUNTY CANVASSING BOARD,

Defendants.

BROWARD COUNTY CANVASSING BOARD'S OPPOSITION TO PLAINTIFF'S EMERGENCY MOTION FOR A TEMPORARY INJUNCTION

The Broward County Canvassing Board ("Canvassing Board") opposes the Emergency

Motion for a Temporary Injunction ("Motion") submitted with the Verified Complaint

("Complaint")fi led by Rick Scott for Senate ("Plaintiff'). There is no emergency. Plaintiff seeks

to enjoin the Supervisor of Elections("SOE") to do something that she has already publicly agreed

to do, as specifically and publicly directed by the Canvassing Board. Additionally, Plaintiff's goal

appears to be to have this Court exercise its extraordinary equitable power to disenfranchise

25 voters on Thursday, November 15, in connection with the submission of the second unofficial returns, although each of those voters did everything required of them to cast valid ballots. The requested relief disserves the public interest; in fact, Plaintiff can meet none of the elements

necessary for the Court to exercise such power. Thus, the Court should deny Plaintiff's motion.

App.016

FACTS

1. On October 22, 2018, Supervisor of Elections staff, supervised by at least two members of the Canvassing Board, began processing vote-by-mail ballots after having been authorized to do so by the Canvassing Board on October 17, 2018.

2. The general election took place on November 6, 2018. Canvassing began at 7 p.m. on November 6, 2018, and continued from day to day thereafter through November 10, 2018.

3. On November 10, 2018, the Canvassing Board meeting was scheduled to start at

10 a.m., but was delayed until approximately 10:25 a.m. to ensure public access despite security issues. A large number of people wished to attend the meeting. Due to security concerns, all visitors were required to pass through a metal detector. See Exhibit A (Daphnee Sainvil Decl.).

4. After the meeting began, attorneys made numerous objections, both generally and to individual ballots. Many of the objections came from attorneys for the Rick Scott campaign.

These objections, which continued despite the Board granting the representatives a standing objection, deprived the Board of time that could otherwise have been used to canvass remaining ballots. None of the objectors presented actual evidence to challenge the validity of a ballot. Id.

5. During the morning of November 10, the Board was asked to review approximately

49 ballots. Id.

6. At approximately 11:20 a.m., the Board recessed to ensure that there was sufficient time for the Supervisor of Elections("SOE") staff to report the first unofficial returns to the Florida

Division of Elections in compliance with the 12 p.m. statutory deadline. At the time of this recess,

25 ballot pages had not yet been canvassed. Id.

7. After the first unofficial returns were reported to the state, the Board reconvened and SOE staff brought the remaining 25 ballot pages to the Board for canvassing. Id.

App.01 7 8. Pursuant to the Florida law and standard Board practice, the Board reviewed each

ballot page that included an over-voted race and made a determination of the voter's intent. Id.

9. The majority of these votes being canvassed for voter intent addressed amendments

to the Florida Constitution, the Broward County Charter, or municipal charters, or other races not

subject to the statewide or local recounts. Id.

10. Only two or three of the 25 ballot pages being canvassed involved canvassing votes for the statewide races for Senate, Governor, or Agriculture Commissioner. In each instance, the

ballot page was publicly shown to the audience via overhead projector and at that time any

applicable objections were made by interested parties. Id.

11. After determining voter intent, the Board directed the SOE staff to create duplicate

ballots consistent with the Board's direction and to return to the Board with the duplicates and

originals for confirmation of the accurate duplication. Duplicate ballots are created to enable

tabulation of votes if and after voter intent is discerned by the Board. Id.

12. Of the 25 ballot pages canvassed after the submission ofthe first unofficial results,

the Board was able to determine voter intent in all instances. Id.

13. Attorneys aligned with the Rick Scott campaign objected to the review of the 25

ballots. Id.

14. In an abundance of caution, the Board publicly directed the SOE to segregate the

25 ballot pages logically and physically in the event a reviewing court were to subsequently

determine that the ballot pages should not be tabulated. The SOE committed to doing so on the

record. Id.

15. The first unofficial results were submitted to the Division of Elections on

November 10, 2018, approximately 8 minutes before the noon deadline.

App.018 16. The Florida Division of Elections has ordered a machine recount in the races for

Florida Senator, Governor, and Commissioner of Agriculture. The Canvassing Board ordered a

machine recount in four local races as well. The machine recount commenced on Sunday,

November 11, 2018.

17. The second unofficial returns are due on Thursday November 15, 2018.

18. The final returns are due on November 18, 2018.

ARGUMENT

I. Temporary Injunctive Relief Should Not Be Granted

To receive the extraordinary remedy of temporary injunctive relief, the movant must show:

"(1)it will suffer irreparable harm unless the injunction is entered,(2) there is no adequate remedy

at law,(3) there is a substantial likelihood that the party will succeed on the merits, and (4) that

considerations of the public interest support the entry of the injunction." Concerned Citizensfor

Jud. Fairness, Inc. v. Yacucci, 162 So. 3d 68, 72 (Fla. 4th DCA 2014). "Clear, definite, and

unequivocally sufficient factual findings must support each of these four criteria before the court

may enter the injunction." Aerospace Welding, Inc. Southstream Exhaust & Welding, Inc., 824

So. 2d 226, 227 (Fla. 4th DCA 2002). None of these elements can be satisfied here.

First, there is no potential for irreparable harm. The Canvassing Board considered 25 ballot

pages shortly after the first unofficial returns were submitted. Plaintiff asserts that considering

these 25 ballot pages was improper because the first unofficial returns should include all vote-by-

mail and provisional ballots. Even if the canvassing board acted improperly, the alleged improper

activity has concluded and the issue is now moot. See Rubin v. Addison Res. Country Club, Inc.,

126 So. 3d 1189 (Fla. 4th DCA 2012)(stating injunctive relief is not available to remedy past

wrongs).

App.019 In addition, at the conclusion of the canvassing of the pages at issue, the Canvassing Board

specifically and publicly directed the SOE to maintain the 25 ballot pages logically and physically

separate from the remainder of the votes so that, if any reviewing court determined that the votes

should not be included, it would be possible to identify and remove the disputed votes. Plaintiff's

request to this Court to order the SOE to segregate those ballots neglects to inform the Court that

the Canvassing Board already so directed, and the SOE has already confirmed on the record that

she will indeed segregate the disputed ballots from the rest. Ifthere were a successful election and

the counting of these ballots was found to be procedurally incorrect, a court could afford relief by

removing those ballot pages from the voting totals.

As such, Plaintiff simply raises the "possibility of irreparable harm" which is "patently

insufficient to support the granting of injunctive relief." See Minimatic Comps., Inc. v.

Westinghouse Elec. Corp., 494 So. 2d 303, 304 (Fla. 4th DCA 1986); see also Tampa Port Auth.

v. Deen, 179 So. 2d 416, 418 (Fla. 2d DCA 1965)("The courts of this State have been extremely

reluctant to interfere with the action of administrative bodies in the proper performance of their

responsibilities, and have done so only where there is a clear and unmistakable violation of

constitutional and statutory rights of the affected parties."). In fact, if the ballots are counted and

Plaintiff's favored candidate is successful, there would no injury to remedy and the error, if any,

would be harmless. Considering that most of the 25 ballot pages did not even concern the racefor

Governor, the potential that these would impact the state senate race, causing Plaintiff harm, is

infinitesimally small.

Second, there is an adequate statutory remedy that would permit a court to fully and

completely rectify any improper procedures used by the SOE or Canvassing Board.

Section 102.168, Florida Statutes, provides a clear procedure to contest the outcome of an election.

App.020 If Plaintiff, or any other group, thinks these twenty-five ballot pages would be outcome

determinative, Plaintiffcan simply challenge the results ofthe election under the contest of election

statute. See § 102.168(3)(c), Fla. Stat. (stating that the counting of an illegal vote is a ground to

challenge the result of an election). As discussed, the SOE has identified and separated the

disputed ballot pages with the express purpose of providing a reviewing court a remedy in the

eventuality that there is a contest of election. Should Plaintiff seek to challenge the election, the

Canvassing Board has worked to ensure that Plaintiff will have a full and fair opportunity to do

SO.

Third, Plaintiff's challenge would not succeed on the merits. Plaintiff has invented a false

deadline for completing canvass of ballots where none in fact exists. The first unofficial results

are just that — i.e., unofficial. If the Canvassing Board were to review additional ballots after the first unofficial results, nothing in Section 102.141, Florida Statutes, indicates that these later- canvassed ballots are to be declared illegal or otherwise thrown out. See § 102.141(5), Fla. Stat.

Indeed, canvassing of overseas ballots has not even commenced and canvassing is expressly contemplated for an additional period after the first unofficial results are posted.

See § 101.6952(3), Fla. Stat.

The section dealing with deadlines, Section 102.112, Florida Statutes, indicates that the deadline for the canvassing of ballots is the twelfth day following the general election.

§ 102.112(2), Fla. Stat. No similar provision requires the canvassing board to disenfranchise voters by rejecting ballots that are unable to be reviewed prior to the filing of the first unofficial returns. The Court should not add words to Section 102.141(5) that do not exist. See Lawnwood

Med. Ctr., Inc. v. Seeger,990 So. 2d 503,512 (Fla. 2008)("It is a well-established tenet ofstatutory

App.021 construction that courts are not at liberty to add words to the statute that were not placed there by the Legislature.")(citation omitted).

Fourth, this Court is required to consider the public interest. The Florida Supreme Court has stated:

At issue is whether the absentee voting law requires absolute strict compliance with all its provisions, or whether substantial compliance is sufficient to give validity to the ballot.

We first take note that the real parties in interest here, not in the legal sense but in ,realistic terms, are the voters. They are possessed of the ultimate interest and it is they whom we must give primary consideration. The contestants have direct interests certainly, but the office they seek is one of high public service and of utmost importance to the people, thus subordinating their interests to that of the people. Ours is a government of, by and for the people. Our federal and state constitutions guarantee the right of the people to take an active part in the process of that government, which,for most of our citizens means participation via the election process. The right to vote is the right to participate; it is also the right to speak, but more importantly the right to be heard. We must tread carefully on that right or we risk the unnecessary and unjustified muting of the public voice. By refusing to recognize an otherwise valid exercise ofthe right to a citizen to vote for the sake of sacred, unyielding adherence to statutory scripture, we would in effect nullify that right.

Boardman v. Esteva, 323 So. 2d 259, 263 (Fla. 1975).

In consideration ofthe public interest, the Court should recognize the true interested parties here: the voters. Through no fault of their own, their right to speak as to matters most sacred to democracy is placed into jeopardy. Plaintiff asks this Court to put Section 102.141, Florida

Statutes, through a tortured interpretation in order to snuff out this right for 25 individuals. The

Canvassing Board respectfully submits that the Court should read the Florida Statutes in favor of giving voters their voice, rather than silencing them. Clearly the public interest does not favor the disenfranchisement for which Plaintiff advocates.

App.022 CONCLUSION

Canvassing Board respectfully requests the Court deny Plaintiffs motion for a temporary injunction.

Dated: November 11, 2018 Respectfully submitted, Andrew J. Meyers Broward County Attomey 1 15 South Andrews Avenue, Suite 423 Fort Lauderdale, Florida 33301 Telephone: (954) 357-7600 Telecopier: (954) 357-7641

By:/ s/ Andrew J. Meyers Andrew J. Meyers, Fla. Bar No. 709816 [email protected] René D. Harrod, Fla. Bar No. 627666 [email protected] Annika E. Ashton, Fla. Bar No. 53970 [email protected] Scott Andron, Fla. Bar No. 112355 [email protected] Joseph K. Jarone, Fla. Bar No. 117768 [email protected] Counselfor Broward County Canvassing Board

App.023

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on November 11, 2018, a true and correct copy of the foregoing document was served by email to the following persons:

Aliette D. Rodz Shutts & Bowen LLP 200 S. Biscayne Blvd., Suite 4100 Miami, FL 33313 [email protected]

George T. Levesque Leslie Arsenault Jason Zimmerman GrayRobinson, P.A. 515 N. Flagler Dr., Suite 1425 West Palm Beach, FL 33401 George.levesqueAgray-robinson. corn Leslie.metzAgray-robinson.corn Jeff.aaronAgray-robinson.com

By/ s/ Rene D. Harrod Rene D. Harrod

App.024 IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY,FLORIDA

RICK SCOTT FOR SENATE, CASE NO,:

Plaintiff, v.

BRENDA SNIPES, solely in her capacity as Supervisor of Elections of Broward County, and the BROWARD COUNTY CANVASSING BOARD,

Defendants. 1

DECLARATION OF DAPHNEE A. SAINVIL

1. I am over the age of 18 and make this Declaration on the basis of my personal knowledge, unless otherwise stated herein. I am a legislative policy advisor for Broward County and an alternate member of the Broward County Canvassing Board.

2. I was present at the Broward County Canvassing Board ("Board") meeting of

Saturday, November 10, 2018, and participated in the canvassing described herein.

3. The meeting was scheduled to start at 10 a.m., but was delayed until approximately 10:25 a.m. to ensure public access despite security issues. A large number of people wished to attend the meeting. Due to security concerns, all visitors were required to pass through a metal detector.

4. After the meeting began,. attorneys made numerous objections, both generally and to individual ballots. Many of the objections came from attorneys for the Rick Scott campaign.

EXHIBIT A

App.025 5. During the morning, the Board was asked to review approximately 49 ballots.

6. At approximately 11:20 a.m., the Board recessed to ensure that there was sufficient time for the Supervisor of Elections("SOE") staff to report the first unofficial returns to the Florida Division of Elections in compliance with the 12 p,m, statutory deadline, At the time of this recess, 25 ballot pages had not yet been canvassed.

7. After the returns were reported to the state, the Board reconvened and SOB staff brought the remaining 25 ballot pages to the Board for canvassing,

8. Pursuant to the Florida law and standard Board practice, the Board reviewed each ballot page that included an over-voted race and made a deterMination of the voter's intent.

9. The majority of the votes being canvassed for voter intent addressed amendments to the Florida Constitution, the Broward County Charter, or municipal charters, or other races not subject to the statewide or local recounts.

10. Only two or three of the 25 ballot pages being canvassed involved canvassing votes for the statewide races for Senate, Governor, or Agriculture Commissioner. In each instance, the ballot page was publicly shown to the audience via overhead projector and at that time any applicable objections were made by interested parties.

1 1. After determining voter intent, the Board directed the SOE staff to create duplicate ballots consistent with the Board's direction and to return to the Board with the duplicates and originals for confirmation of the accurate duplication. Duplicate ballots arc created to enable tabulation of votes if and after voter intent is discerned by the Board.

12. Of the 25 ballot pages canvassed after the submission of the first unofficial results, the l3oard was able to determine voter intent in all instances.

App.026 13. Attorneys aligned with the Rick Scott campaign objected to the review of the 25

ballots.

14. in an abundance of caution, the Board publicly directed the SOB to segregate the

25 ballot pages logically and physically in the event a reviewing court were to subsequently determine that the ballot pages should not be tabulated. The SOB committed to doing so on the record.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on 1\lal_l 1 rsk2LE__. Signed: (Date) Daphnee A. Sa nvil

App.027 Filing # 80817911 E-Filed 11/14/2018 06:11:33 PM

IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY,FLORIDA

RICK SCOTT FOR SENATE, CASE NO.: CACE 18-026470(07)

Plaintiff,

BRENDA SNIPES, solely in her capacity as Supervisor of Elections of Broward County, THE BROWARD COUNTY CANVASSING BOARD,

Defendants. /

NATIONAL REPUBLICAN SENATORIAL CASE NO.: CACE 18-026364(25) COMMITTEE, and RICK SCOTT FOR SENATE,

Plaintiffs,

BRENDA SNIPES, in her official capacity as Broward County Supervisor of Elections,

Defendant. /

MATTHEW CALDWELL and CAMPAIGN TO CASE NO.: CACE 18-026464(07) ELECT MATT CALDWELL COMMISSIONER OF AGRICULTURE,

Plaintiff,

BRENDA SNIPES, in her official capacity as Broward County Supervisor of Elections,

Defendant. /

RICK SCOTT FOR FLORIDA, CASE NO.: CACE 18-026469(07)

Plaintiff,

App.028 v.

DR. BRENDA SNIPES, in her official capacity as Broward County Supervisor of Elections,

Defendant.

NATIONAL REPUBLICAN COMMITTEE and CASE NO.: CACE 18-026476 RICK SCOTT FOR SENATE,

Plaintiff,

DR. BRENDA SNIPES, in her official capacity as Broward County Supervisor of Elections,

Defendant.

BROWARD COUNTY CANVASSING BOARD'S SUPPLEMENTAL OPPOSITION TO PLAINTIF'F S EMERGENCY MOTION FOR A TEMPORARY INJUNCTION AND SUPPORTING MEMORANDUM OF LAW

The Broward County Canvassing Board ("Canvassing Board") files this Supplemental

Opposition to the Emergency Motion for a Temporary Injunction ("Motion") submitted with the

Verified Complaint("Complaint") filed by Rick Scott for Senate ("Plaintiff'). The Court should deny all relief against the Canvassing Board for the reasons stated herein and in the Canvassing

Board's November 11, 2018 Opposition to Plaintiff's Emergency Motion for a Temporary

Injunction.

FACTS

1. The Canvassing Board incorporates the facts stated in its November 11 Opposition and supporting declaration by Canvassing Board alternate member Daphnee Sainvil.

2. The Court held a hearing on November 12, 2018, wherein counsel for Plaintiff indicated its intention to drop the Canvassing Board as a party. Plaintiff has not, as yet, filed any

App.029 motion to dismiss the Canvassing Board as a party to this action. Additionally, even if Plaintiff intended to dismiss the Canvassing Board, some of the relief Plaintiff seeks is directed at responsibilities of the Canvassing Board.

3. The Canvassing Board files this Supplemental Opposition to address the continuing issues that affect the Canvassing Board's completion of its statutory responsibilities.

ARGUMENT

Over the past week, various parties such as Plaintiff have filed an array of lawsuits against election officials, including this Canvassing Board. Plaintiff's action are inconsistent with well- established procedures for challenging the decisions of election officials, and constantly forcing election officials, their attorneys, and their employees into court only delays the electoral process and is in contravention to the procedures approved by the Florida Legislature. The Court should therefore deny any injunctive relief against the Canvassing Board and permit the statutory canvassing process to be completed. If Plaintiff, or any other party, wants to challenge the result of the election post-certification, it should follow the statutory procedures for doing so. See §

102.168, Fla. Stat., discussed below.

In Florida, there is "a strong public policy against judicial interference in the democratic process of elections." Brinkmann v. Francois, 184 So. 3d 504, 510 (Fla. 2016).

An injunction will not issue for the purpose ofrestraining the holding ofan election, or ofdirecting or controlling the mode in which, or ofdetermining the rules oflaw in pursuance of which, an election shall be held, because the holding and conduct of an election during its progress is a political matter with which courts of equity have nothing to do.

Wexler v. Lepore, 878 So. 2d 1276, 1282 (Fla. 4th DCA 2004)(emphasis added)(quoting Joughin v. Parks, 143 So. 145 (Fla. 1932)).

App.030 Outside of narrow exceptions, section 102.168, Florida Statutes, provides the sole means by which to contest an election. See Levey v. Dijols, 990 So. 2d 688, 693 (Fla. 4th DCA 2008))

Under this statute, the certification of an election "may be contested in the circuit court by any unsuccessful candidate for such office or nomination thereto." § 102.168(1), Fla. Stat. The grounds for setting aside the election include: "[m]isconduct, fraud, or corruption on the part of any election official or any member of the canvassing board sufficient to change or place in doubt the result of the election" and "[r]eceipt of a number of illegal votes or rejection of a number of legal votes sufficient to change or place in doubt the result ofthe election." § 102.168(3)(a),(c),

Fla. Stat. (emphasis added). This statute is to be strictly construed because "[g]enerally, there is no inherent power in the courts of this state to determine election contests and the right to hold legislative office." Norman v. Ambler, 46 So. 3d 178, 181 (Fla. 1st DCA 2010) (quoting

McPherson v. Flynn,397 So. 2d 665,667 (Fla.1981)). Thus,under the Florida Statutes, an election challenge is to take place after the results have been certified and only ifillegal votes are "sufficient to change or place in doubt the result of the election." § 102.168, Fla. Stat. Consequently, the parties have improperly attempted to invoke this Court's equity jurisdiction when there is a well- defined statutory process to challenge the decisions of election officials.

In addition, the flurry of challenges attacking the decisions of election officials are premature. By requiring contests of elections to occur after certification and only if allegedly illegal ballots or rejected legal ballots would change the outcome of the election, the Florida

Legislature has expressed its intention that election officials and their employees should not be

A challenge by writ of quo warranto also exists. See State v. Fernandez, 143 So. 638, 641 (Fla. 1932). 4

App.031 constantly dragged into court over disputes involving dozens or hundreds of ballots while hundreds ofthousands ofballots are currently being recounted. See id.

So too has the Florida Supreme Court indicated, in no uncertain terms, that a challenge to election results may be brought only if the allegedly illegal votes or rejected legal votes would change the outcome ofthe election. See State ex rel. Clark v. Klingensmith, 163 So. 704, 704 (Fla.

1935)("Illegal votes do not invalidate legal votes when the number of the former is ascertained.

Nor is the rejection of votes from legal voters, not brought about by fraud, and not of such magnitude as to demonstrate that a free expression of the popular will has been suppressed, sufficient to avoid an election, at least unless it be shown that the votes rejected would have changed the result."); State ex rel. Pooser v. Wester, 170 So. 736, 739 (Fla. 1936)("The rule is settled in this state that where an election is otherwise valid, it will not be held void because illegal votes were cast. It must be shown that the illegal votes will change the result of the election.");

Beckstrom v. Volusia Cty Canvassing Bd., 707 So. 2d 720, 725 (Fla. 1998)("Pin a situation in which a trial court finds substantial noncompliance caused by unintentional wrongdoing as we have defined it, the court is to void the election only if it finds that the substantial noncompliance resulted in doubt as to whether a certified election reflected the will of the voters."). In fact, this very same principle was reaffirmed by the Fifth District Court of Appeal two months ago in Kinney v. Putman County Canvassing Board, No. 5D17-1737,2018 WL 4366697(Fla. 5th DCA Sept. 14,

2018), wherein some felons were found to have illegally voted but there was insufficient evidence to cast the election into doubt. Notably, the challenge in Kinney properly followed the certification of results by the county canvassing board. See id. at *1.

Although not challenged by Plaintiff, Matthew Caldwell in case number CACE-18-

026464,has challenged the counting of205 provisional ballots that had already been opened before

App.032 being reviewed by the Canvassing Board. As with the twenty-five ballots that were reviewed for

voter intent that are disputed in the instant case, ifa party wishes to challenge the counting ofthese

ballots, it must do so after the election has been certified. § 102.168, Fla. Stat. Further, there has

been the contention that any illegal ballot mixed up with the 205 pollutes the entire lot. This

contention is contrary to well-established law as the Florida Supreme Court has determined that

ballots should be discounted only ifthe illegal ballots are of a sufficient quantity so as to alter the

election. See Boardman v. Esteva, 323 So. 2d 259, 263 (Fla. 1975).

In the aftermath ofElection Day,the Canvassing Board has worked around the clock nearly

every day and must make decisions to the best of its ability based on the Florida Statutes and

Division of Election rules. Inevitably, one side or the other is going to disagree with the

Canvassing Board's decisions. Thus, the Canvassing Board has endeavored to provide the parties

the ability to challenge its decisions and to provide a reviewing court the ability to remedy any

decisions with which it disagrees. See Exhibit A to Canvassing Board's November 11, 2018

Opposition (Daphnee Sainvil Decl.).2 But such election challenge must not come in the midst of

a laborious recount and instead must follow clear statutory guidelines and occur after the election

has been certified. If a party believes the election has been called into question by the Canvassing

Board's decisions, it will have a full and fair opportunity to make this challenge once the final

results have been certified. See State ex rel. Peacock v. Latham, 169 So. 597, 598 (Fla. 1936)

(explaining that the election challenge statute "affords an efficient available remedy and legal

2 The Canvassing Board's decision to review twenty-five ballots for voter intent after the first unofficial results became due was well supported. See Boardman, 323 So. 2d at 268("When the voters have done all that the statute has required them to do, they will not be disfranchised solely on the basis of the failure of the election officials to observe directory statutory instructions."); Krivanek v. Take Back Tampa Political Committee, 625 So. 2d 840, 842 (Fla. 1993)("[E]lection laws should generally be liberally construed in favor of an elector.").

App.033 procedure by which the circuit court can investigate and determine, not only the legality of the votes cast, but can correct any inaccuracies in the count of the ballots .. . .").

Therefore, if Plaintiff feels the Canvassing Board has acted wrongly, its sole remedy is a contest of election challenge under section 102.168, Florida Statutes. Such a challenge must be after the results have been certified and only if allegedly illegal ballots would cast the will of the voters into doubt. It is improper to prematurely ask the Court to exercise its equitable powers to remedy some possible future harm as to which an adequate legal remedy exists.

CONCLUSION

The Canvassing Board respectfully requests the Court deny Plaintiff's motion for an emergency injunction against the Canvassing Board.

Dated: November 14, 2018 Respectfully submitted, Andrew J. Meyers Broward County Attorney 115 South Andrews Avenue, Suite 423 Fort Lauderdale, Florida 33301 Telephone: (954) 357-7600 Telecopier: (954) 357-7641

By:/ s/ Andrew J Meyers Andrew J. Meyers, Fla. Bar No. 709816 [email protected] Rene D. Harrod, Fla. Bar No. 627666 [email protected] Annika E. Ashton, Fla. Bar No. 53970 [email protected] Scott Andron, Fla. Bar No. 112355 sandron@broward,org Joseph K. Jarone, Fla. Bar No. 117768 [email protected] Counselfor Broward County Canvassing Board

App.034 CERTIFICATE OF SERVICE

I hereby certify that on November 14, 2018, a true and correct copy of the foregoing document was served to the parties of record in the manner specified in the below Service List.

By: s/ Scott Andron Scott Andron Fla. Bar No. 112355

PARTY METHOD OF:... CONTACT INFORMATION SERVICE CASE NO.: CACE 18- Email Via Aliette D. Rodz 026470 Florida Courts Shutts & Bowen LLP CASE NO.: CACE 18- E-Filing Portal 200 S. Biscayne Blvd., Suite 4100 26469 Miami, FL 33313 CASE NO.: CACE 18- Telephone: (305)347-7342 26464 [email protected] CASE NO.: CACE 18- 26364 CASE NO.: CACE 18- 26476 Plaintiff. Rick Scott for Senate Rick Scott for Florida CASE NO.: CACE 18- Email Via George T. Levesque 026470 Florida Courts Leslie Arsenault CASE NO.: CACE 18- E-Filing Portal Jason Zimmerman 26469 William G. McCormick CASE NO.: CACE 18- Jeffrey Aaron 26464 GrayRobinson, P.A. CASE NO.: CACE 18- 515 N. Flagler Dr., Suite 1425 26364 West Palm Beach, FL 33401 CASE NO.: CACE 18- Telephone: (954)761-7492 26476 George.levesqueagray-robinson.com Plaintiff. [email protected] Rick Scott for Senate [email protected] Plaintiff [email protected] Rick Scott for Florida Jeffaaronggray-robinson.com Plaintiff:. National Republican Senatorial Committee CASE NO.: CACE 18- Email Via Eugene Pettis 026470 Florida Courts Debra P. Klauber CASE NO.: CACE 18- E-Filing Portal Dotie Joseph

App.035 -' - PARTY METHOD OF CONTACT INFORMATION SERVICE 26469 Haliczer, Pettis & Schwamm CASE NO.: CACE 18- One Financial Plaza 26464 Seventh Floor CASE NO.: CACE 18- Fort Lauderdale, FL 33394 26364 Telephone:(954) 523-9922 CASE NO.: CACE 18- epettisghpslegal.com 26476 dklauber(&,hpslegal.com Defendant: [email protected] Dr. Brenda C. Snipes

CASE NO.: CACE 18- Email Via Benedict P. Kuehne 026470 Florida Courts Kuehne Davis Law, P.A. CASE NO.: CACE 18- E-Filing Portal 100 S.E. rd Street, Suite 3550 26469 Miami, FL 33131 CASE NO.: CACE 18- Telephone:(305) 789-5989 26464 [email protected] CASE NO.: CACE 18- 26364 CASE NO.: CACE 18- 26476 On Behalfof Commissioner Elect Nikki Fried CASE NO.: CACE 18- Email Via Larry S. Davis 026470 Florida Courts Larry S. Davis, P.A. CASE NO.: CACE 18- E-Filing Portal 1926 Harrison Street 26469 Hollywood, FL 33020 CASE NO.: CACE 18- Telephone: (954)927-4249 26464 larry@,larrydavislaw.corn CASE NO.: CACE 18- 26364 CASE NO.: CACE 18- 26476 On Behalfof Commissioner Elect Nikki Fried

CASE NO.: CACE 18- Email Via George S. Lemieux 026470 Florida Courts Heather C. Constanzo CASE NO.: CACE 18- E-Filing Portal Michael Marcil 26469 Gunster CASE NO.: CACE 18- 450 E. Las Olas Blvd., Suite 1400 26464 Fort Lauderdale, FL 33301 CASE NO.: CACE 18- Telephone:(954) 468-1339 26364 glemieux ,gunster.com CASE NO.: CACE 18- hcostanzoggunster.com

App.036 PARTY ' METHOD OF ' CONTACT INFORMATION SERVICE 26476 [email protected] Plaintiffs: Matthew Caldwell and Campaign to Elect Matt Caldwell Commissioner of Agriculture and On Behalfof The Department ofAgriculture CASE NO.: CACE 18- Email Via Leonard K. Samuels 026470 Florida Courts Berger Singerman, LLP CASE NO.: CACE 18- E-Filing Portal 350 E. Las Olas Blvd., Suite 1000 26469 Fort Lauderdale, FL 33301 CASE NO.: CACE 18- Telephone:(954) 525-9900 26464 isamuels bergerman.com CASE NO.: CACE 18- 26364 CASE NO.: CACE 18- 26476 Intervenor: Florida Democratic Party CASE NO.: CACE 18- Email Via Anthony H. Quackenbush 026470 Florida Courts Kelley Uustal CASE NO.: CACE 18- E-Filing Portal 500 N. Federal Highway, Suite 200 26469 Fort Lauderdale, FL 33301 CASE NO.: CACE 18- Telephone:(954) 522-6601 26464 [email protected] CASE NO.: CACE 18- [email protected] 26364 CASE NO.: CACE 18- 26476 On Behalfof Senator Bill Nelson

App.037 PARTY METHOD OF CONTACT INFORMATION SERVICE CASE NO.: CACE 18- Email Via [email protected]; 026470 Florida Courts [email protected]; CASE NO.: CACE 18- E-Filing Portal [email protected]; 26469 [email protected]; CASE NO.: CACE 18- [email protected]; 26464 [email protected]; CASE NO.: CACE 18- [email protected]; 26364 [email protected]; CASE NO.: CACE 18- [email protected] 26476 [email protected] On Behalfof League of [email protected] [email protected] Women Voters ofFlorida [email protected] and Joanne Lynch Aye

App.038 Page 1

1 IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA 2 GENERAL DIVISION JURISDICTION 3 CASE NO. 18-026470 4 RICK SCOTT FOR FLORIDA, 5 Plaintiff, 6 vs. 7 BRENDA C. SNIPES, solely in her 8 capacity as Supervisor of Elections of Broward County, Florida and the 9 BROWARD COUNTY CANVASSING BOARD, 10 Defendant. 11 12 HEARING PROCEEDINGS 13 BEFORE 14 THE HONORABLE JACK TUTER 15 16 17 DATE TAKEN: Thursday, November 15, 2018 18 TIME: 9:00 a.m. - 10:30 a.m. 19 LOCATION: Broward County Courthouse 201 SE 6th Street 20 Ft. Lauderdale, Florida 33301 21 Hearing proceedings taken before: 22 Nancy Smith, RPR 23 Veritext Legal Solutions One Biscayne Tower 24 2 South Biscayne Blvd. Suite 2250 Miami, Florida 33131 25

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1 APPEARANCES 2 For the Plaintiff, Rick Scott: 3 ALIETTE D. RODS, ESQ., BRYAN ALMEITA, ESQ. and 4 SHUTTS & BOWEN LLP 200 S. Biscayne Blvd. Suite 4100 5 Miami, FL 33131 6 WILLIAM G. McCORMICK, ESQ. and JEFF AARON, ESQ. GRAYROBINSON, P.A. 7 515 N. Flagler Drive, Suite 1425 West Palm Beach, FL 33401 8 For the Intervenor, League of Women Voters: 9 MICHAEL J. RYAN, ESQ. 10 KRUPNICK CAMPBELL MALONE BUSER SLAMA HANCOCK LIBERMAN, PA 11 12 Southeast 7th Street, Suite 801 Fort Lauderdale, FL 33301 12 MYRNA PEREZ, ESQ. 13 BRENNAN CENTER FOR JUSTICE 120 Broadway 14 Suite 1750 New York, New York 10271 15 MICHAEL S. OLIN, ESQ. 16 BUCKNER & MILES 3350 Mary Street 17 Miami, FL 33133 18 For Broward County: 19 ANDREW MEYERS, Asst. County Attorney, RENE HARROD, Asst. County Attorney, SCOTT ANDRON, Asst. County 20 Attorney, and JOE JARONE, Asst. County Attorney 115 S. Andrews Avenue 21 Room 203 Fort Lauderdale, FL 33301-4800 22 For Nikki Fried: 23 LARRY DAVIS, ESQ. 24 1926 Harrison Street Hollywood, FL 33020 25

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1 For Bill Nelson Campaign: 2 KEVIN J. HAMILTON, ESQ. and ALEXANDER G. TISCHENKO, 3 ESQ. 1201 Third Avenue 4 Suite 4900 Seattle, WA 98101-3099 5 For the Florida Democratic Party: 6 LEONARD K. SAMUELS, ESQ. 7 350 East Las Olas Boulevard Suite 1000 8 Ft. Lauderdale, FL 33301 9 For Matt Caldwell: 10 GEORGE S. LEMIEUX, ESQ. GUNSTER 11 450 East Las Olas Boulevard Suite 1400 12 Ft. Lauderdale,. FL 33301-4206 13 For Brenda Snipes: 14 EUGENE K. PETTIS, ESQ. and DEBRA P. KLAUBER, ESQ. HALICZER PETTIS & SCHWAMM 15 One Financial Plaza Seventh Floor 16 Ft. Lauderdale, FL 33394 17 For the Common Cause of Florida, Joanne Lynch Aye: 18 JOHN UUSTAL, ESQ. and ANTHONY H. QUACKENBUSH, ESQ. 19 KELLEY UUSTAL 500 North Federal Highway 20 Suite 200 Ft. Lauderdale, FL 33301 21 I NDEX 22 Hearing before 23 THE HONORABLE JACK TUTER PAGE NO. 24 Certificate of Reporter 79 25

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1 (Thereupon, the following proceedings were had in open

2 court at 9:00 a.m.)

3 THE COURT: Good morning everyone. You may be

4 seated. Counsel, if you can just have a seat there for

5 a second, I need to go over some procedures with

6 everybody and things on the record so we are all on the

7 same page.

8 MR. RODZ: Sure, Your Honor.

9 THE COURT: Okay. So there's two things we

10 need to put on the record here. Since we were in open

11 court the last time we held two telephone conferences

12 with the lawyers to discuss some procedural and

13 scheduling issues. The supervisor's attorney,

14 Mr. Pettis, filed a motion to consolidate and transfer

15 all of these cases in front of one judge and move them

16 to the complex business division. Each lawyer had a

17 chance to review and discuss that with their respective

18 parties or clients and everyone agreed to the transfer

19 but not consolidation so these cases are only

20 transferred into 07 and not consolidated. Anybody wish

21 to discuss consolidation we can do that on a case by

22 case basis. I did bring down -- I thought I brought

23 down your order, Mr. Ryan, the intervention on the

24 League, but it looks like I brought down about 12

25 copies of your motion. So I will get up there and find

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1 that again and you also indicated there was some pro

2 hac vice orders you wanted me to sign and also I can

3 not find them. Wait a minute, maybe they are in this

4 pile. Hang on. Okay. So I did good, I didn't bring any

5 of them in. I'll get them signed this morning. For

6 purposes of this hearing if anybody who has been

7 admitted per my conversations with the lawyers

8 yesterday they could make an appearance here and argue

9 what the case may be.

10 So I want to be brought up on a couple of

11 things here before we start addressing some of these

12 motions because some of the things are going over in

13 the election's office and some of the things I read in

14 the newspaper may impact that. County attorney, Mr.

15 Meyers, they finished the machine recount over there?

16 MS. HARROD: Good morning, Your Honor,

17 Rene Harrod for the canvassing board. Your Honor, the

18 machinery count is almost concluded. There are a

19 couple hundred damaged ballots that got damaged when

20 they were being fed into the machines that are being

21 accurately duplicated, reviewed by the canvassing board

22 and those will be fed and in anticipation they will be

23 concluded at, approximately, noon today.

24 THE COURT: Noon today. Okay, so, because some

25 of these requests for injunctive relief and public

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1 records request are before me deal with some of that.

2 The procedure next is the machine that recounted would

3 have already kicked out the under votes and over votes

4 so those are already segregated?

5 MS. HARROD: Yes, Your Honor. The process of

6 the tabulation by the machine recount also separated

7 the unders and overs. So now we have just the unders

8 and overs segregated for the hand recount if necessary.

9 THE COURT: And do we know how many under

10 votes and over votes the machine kicked out?

11 MS. HARROD: Your Honor, what we did in an

12 abundance of caution was take out for all seven races

13 that were subject to the machine recount. So all seven

14 races will have, we anticipate, approximately, 60,000

15 combined overs and under.

16 THE COURT: Okay. And the procedure on that

17 is that the supervisor has tables already set up with

18 various people and observers to go through those

19 ballots and the observation would be whether anyone

20 voted in the race or if there's any kind of a check

21 mark by any of the candidate's name to determine voter

22 identity.

23 MS. HARROD: There's a definite intent, yes,

24 Your Honor. If anything is disputed, meaning disagreed

25 b y the two independent folks reviewing the manual

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1 ballot, or if any of the candidates or parties object

2 then that would go before the canvassing board to make

3 their determination.

4 THE COURT: Okay. And does the supervisor

5 have any indication from the Secretary of State if a

6 manual recount is ordered when that will occur?

7 MS. HARROD: Your Honor, the plan is that

8 there's a preparation of the machine that would take

9 place this afternoon and then the first race of the

10 manual recount will commence anticipation at 6 a.m.

11 tomorrow morning with everyone prepared, after they

12 have been trained in the morning, at 7 a.m. aimed to

13 start.

14 THE COURT: And, if you know, I just read the

15 newspaper report and I didn't read the order and I

16 don't have any indication of the accuracy of the

17 newspaper reporting. A Federal Judge up in Tallahassee

18 somehow committed people who had disputed, I guess,

19 absentee or provisional signatures to come in until

20 Saturday at 5:00 to try to attempt to verify the

21 signatures that had been rejected; is that correct?

22 MS. HARROD: Your Honor, like you we tried to

23 catch up quickly on what's been happening. I reviewed

24 the order this morning. My understanding is that that

25 addresses solely mismatched signatures which would not

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1 be part of what's the second unofficial being submitted

2 today because those folks are not currently being

3 included in the second unofficial, they would not be

4 part of the count.

5 THE COURT: So let me make sure I'm right

6 here. So if those voters came in and somehow verified

7 their signature, those ballots aren't counted in the

8 current count?

9 MS. HARROD: Correct, Your Honor.

10 THE COURT: So whatever the Secretary of State

11 would do when she certifies the count what's the impact

12 of those signatures, are those valid at that point?

13 MS. HARROD: So hypothetically, Your Honor,

14 if there were ballots that are currently rejected on

15 the basis of mismatched signatures, if they were

16 reviewed at some process through this order or

17 otherwise those would be an additional ballot that

18 would then be considered, presumably through some

19 process of voter intent, and confirmation of what the

20 definite choice was. Those would be in addition to

21 what's all being done right now.

22 THE COURT: And, lastly, hang on just a

23 second. Did I read that he declared that it was

24 unconstitutional for the canvassing board to determine

25 signatures?

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1 MS. HARROD: Your Honor, I have not fulfilled

2 the order of that finding yet.

3 THE COURT: I mean, if he did, I mean that's

4 a pretty big deal because I don't know how that impacts

5 prior signatures, future signatures or the way the

6 canvassing board is composed. I mean, is he saying you

7 have a handwriting expert in the canvassing board?

8 MS. HARROD: Your Honor, if it addresses only

9 the mismatch, and I'll defer to my colleague,

10 Mr. Meyers, on the impact. But if it addresses only the

11 mismatched for Broward County canvassing board that has

12 a very small impact. There's only a handful of ballots

13 rejected on the basis of a mismatched signature.

14 THE COURT: Is it in the hundreds or do you

15 know the number?

16 MS. HARROD: I would guess it's in the

17 dozens, Your Honor.

18 THE COURT: Thank you. Mr. Meyers.

19 MR. MEYER: Your Honor, the Federal Court, at

20 a minimum, questioned the competence of the canvassing

21 board to determine the signatures. A main part of the

22 order was that there's an opportunity to cure,

23 obviously, before election day and none afterwards. And

24 the Court thought that was, I think, the main

25 unconstitutional aspect was that there was no

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1 opportunity to cure afterwards when it's essentially or

2 could be random as to which votes are canvassed before

3 the election day and which are done afterwards.

4 My understanding, though, is that the order is

5 contingent and, again, we read this very quickly this

6 morning as well, but is contingent upon the Division of

7 Elections in Tallahassee issuing some directive that

8 effectuates it. And then the Court also anticipated

9 that there might be requests for stay. So things are

10 very much up in the air on that, but it does not impact

11 the ability of the canvassing board and the supervisor

12 of elections to comply with the deadline for the second

13 unofficial returns today.

14 THE COURT: Would it affect the Secretary of

15 State's certification of the vote, would that delay

16 that based on him saying that they could still come in

17 Saturday?

18 MR. MEYERS: I don't think the impact of it

19 is clear, obviously the Federal Court is looking at the

20 statutory provisions that exist for the verification of

21 signatures and some of the deadlines and saying that, I

22 believe, and, again, it's a very lengthy opinion, I

23 think it was 34 pages. We haven't digested every

24 nuance, but I think that it does potentially call into

25 question the ultimate deadline for the State to certify

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1 the election, conceivably.

2 THE COURT: Thank you, Mr. Meyers.

3 MS. RODZ: Your Honor, just so the Court is

4 aware I understand and I have spoken to my peers and

5 understand that it is being appealed, the order that

6 was entered this morning.

7 THE COURT: Thank you.

8 MR. RYAN: And, Judge, I have a copy for you

9 if you wish to have a copy.

10 THE COURT: 34 pages?

11 MR. RYAN: 34 pages.

12 THE COURT: Can we take about a three-hour

13 break?

14 MR. RYAN: I think the last two pages might

15 be the focus of the Court's attention.

16 THE COURT: If I can look at the last two

17 pages. I don't know how it affects what I'm doing here

18 MR. RYAN: May I approach?

19 THE COURT: Certainly. I want to know if this

20 order has an impact on the delay of the election as far

21 as contents and the matters that are before me. While I

22 am taking a quick look at that, since the last time we

23 were together other cases have been filed in this

24 Circuit and other lawyers have filed appearances so

25 maybe I should just get the newly filed cases and the

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1 lawyers that are appearing on the newly filed cases if

2 I could. Mr. Ryan, you are on two of the cases?

3 MR. RYAN: Your Honor, I'm on 26470 as the

4 intervenors for the League of Women voters, Common

5 Cause of Florida and Joanne Lynch Aye, so just on that

6 one case, along with me is Myrna Perez from the Brennan

7 Center of Justice and Mike Olin along with colleagues

8 from Simpson Thacher.

9 MR. OLIN: Your Honor, and I'm here on the

10 second League case, but there's been no order entered

11 on that one yet.

12 THE COURT: Okay. And your name is?

13 MR. OLIN: Michael Olin.

14 THE COURT: Mr. Olin, you can sit down.

15 Okay. Anybody else? Okay. And, for the record, I

16 think we kind of established via telephone conference

17 that I don't know which case is even intervened in.

18 MR. RYAN: Only in 26470, Your Honor, just in

19 that singular case as an intervenor.

20 THE COURT: And is that the Scott case?

21 MR. RYAN: Scott versus the SOE and

22 canvassing board.

23 THE COURT: Okay. All right. And everybody

24 else is pretty much -- everybody else is in the case so

25 far. Let me take a quick look at this if I can. All

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1 right. It doesn't tell me a lot honestly. I'll keep

2 that here, Mr. Ryan, and return it to you in a moment.

3 Okay. As for today I think we agreed last night,

4 Ms. Rodz, we would hear some of the issues you referred

5 to them and some of the issues Mr. LeMieux raised and

6 maybe I could get an update just before you speak,

7 ma'am, from Mr. Pettis of what occurred last night on

8 the public records issues that were pending between

9 Mr. LeMieux's client, Mr. Caldwell.

10 MR. PETTIS: Yes, Judge. We have been in

11 communication with Mr. LeMieux's client through the

12 evening. I think, approximately, 10,000 pages were

13 transmitted to them. The rest should be available by

14 noon time. Again, I'll get an update in between these

15 meetings, but there's been the transmission of at least

16 half.

17 THE COURT: And I did see also and I meant to

18 print that and bring it down but I didn't for whatever

19 reason, the confidentiality and the call back between

20 you and Mr. LeMieux's office.

21 MR. PETTIS: Yes, we exchanged that. I think

22 there was one line, not even a whole sentence that we

23 were discussing last evening, Ms. Klauber, my partner

24 here was working with them on that. And we are going

25 to need those that want to access that database in

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1 addition to Mr. LeMieux also be a part of that

2 confidentiality call back arrangement.

3 THE COURT: Has everybody seen the

4 confidentiality call back agreement, the lawyers?

5 MR. UUSTAL: Yes, Your Honor, and I think we

6 are not able to get those documents until the order is

7 entered.

8 THE COURT: Is there anyone here opposing the

9 entry of that call back confidentiality order because I

10 need to take that up now, otherwise I'm going to sign

11 it and it will be nunc pro tunc until this morning and

12 that way everybody is under that confidentiality and

13 call back order, is that okay with everybody?

14 MR. UUSTAL: Yes, Your Honor. But can I ask

15 that those documents be delivered now that the Court

16 has so ordered?

17 MR. PETTIS: It's going to be electronically

18 delivered, yes, absolutely. May I approach?

19 THE COURT: Yes.

20 MS. RODZ: Your Honor, I have just been

21 advised that the appeal has been filed.

22 THE COURT: Today is the 15th?

23 MS. RODZ: Yes.

24 THE COURT: How many courts does that make

25 involving the election? At least 20. I'm not sure

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1 these orders I'm signing have all of the case numbers

2 on them, but for purposes of this order it applies to

3 all the cases so that the record is clear on that.

4 Would you make a copy, one copy -- Mr. Pettis, I'm

5 going to have her make one copy, give it to you and ask

6 you to distribute it to everybody so that we don't have

7 to make 25 copies.

8 MR. PETTIS: Certainly.

9 THE COURT: And the last thing as I said last

10 night that it is a bit of an inconvenience to the

11 Courts right now, I didn't look this morning, but our

12 case management system crashed the day before yesterday

13 and we had to send our server all the way to California

14 and we are working on trying to get that back up. That

15 prevents us from seeing dockets and filings so make

16 sure you send everything to me via email with an

17 attachment otherwise I may not be able to see it.

18 Anything else procedurally? Ms. Rodz, you are first up.

19 Mr. LeMieux, did you want to sit up here?

20 MR. LeMIEUX: I am fine, Your Honor. I can

21 come and sit up there later.

22 THE COURT: Okay.

23 MS. RODZ: Your Honor, the saying when it

24 rains it pours is proven true with the docket as well.

25 THE COURT: All right. Ms. Rodz, take up

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1 your motion.

2 MS. RODZ: Yes. Your Honor, we are here on

3 behalf of Rick Scott of Florida with regard to the

4 emergency motion for injunctive relief as to the

5 counting of ballots that are post statutory requirement

6 that all ballots be cast. And I want to take the

7 Court, I believe the Court received the binder with

8 regard to the matter.

9 THE COURT: Yes.

10 MS. RODZ: If you go to tab 14 and that is

11 102.141, that's the statute as to the County Canvassing

12 Board duties. And as the Florida Supreme Court has

13 stated all facts of a statute must be read together to

14 generate a consistent hold. So I take the Court to

15 Section 4A. In Section 4A the supervisor of elections

16 shall upload into the County Election Management System

17 by 7 p.m. on the day before the election the results of

18 all early voting and vote by mail ballots. Now here is

19 the key, Your Honor, that have been canvassed and

20 tabulated. It doesn't say all mail-in ballots, it just

21 says that have been canvassed and tabulated by the end

22 of the early voting period.

23 Then if you proceed, Section B says the

24 canvassing board shall report all early voting and all

25 tabulated votes by mail. So it doesn't say all vote by

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1 mail, it says all tabulated vote by mail within 30

2 minutes after the polls close. And thereafter provide

3 the time period as to the provisional ballots. Now I

4 take you, Your Honor, to Section 5. Section 5 states

5 the canvassing board shall submit on forms or in

6 formats provided by the division unofficial returns to

7 the Department of State for each Federal, Statewide,

8 State, or multi-county office or ballot measure no

9 later than, now it's talking about either a primary

10 election or a general election, and it says no later

11 than noon on the fourth day after any general or other

12 election which is the case at bar here, Your Honor.

13 Such returns shall include the canvassing of all

14 ballots as required by Subsection 2. Now, it doesn't

15 say all ballots that have been tabulated or canvassed

16 thus far, it says all ballots.

17 Now I take the Court to Section 7. In Section

18 7 it states if the unofficial returns reflect that a

19 candidate for any office was defeated or eliminated by

20 one half of a percent or less of the votes cast for

21 such office that candidate for retention to a judicial

22 office was retained or not retained by one half of a

23 percent or less, which is the cases that we are dealing

24 with here, or that a measure appearing on the ballot

25 was approved or rejected by one half of a percent or

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1 less, the votes cast on such measure a recount shall be

2 ordered of the votes cast with respect to such office

3 or measure. We are not dealing with a second

4 unofficial county. We are dealing, in this case, with a

5 recount. So if you turn, Your Honor, to Section C, so

6 7C. 7C says the canvassing board shall submit on forms

7 or formats provided by the division a second set of

8 unofficial returns to the Department of State for each

9 Federal, statewide, state, or multi-county office or

10 ballot measure. The return shall be filed. Now, this

11 is key, Your Honor, the return shall be filed no later

12 than 3 p.m. on the fifth day after any primary

13 election. So you have a second unofficial return on the

14 fifth day of any primary election. That's not the case,

15 Your Honor, for a general election.

16 It says, and no later than 3 p.m. on the ninth

17 day after any general election in which, and this is

18 the key, in which a recount was ordered. So in a

19 primary election, Your Honor, you have, as a matter of

20 course, a second unofficial count conversely in the

21 general election it's only in the event of a recount.

22 Now, the very term recount and the black letter law

23 definition of recount is to count those votes that have

24 been cast and counted. It is not to recount and to add

25 additional counts.

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1 Now, there is an exception and if you look at

2 tab 12 in your binder that is Florida Statute 101.6952

3 and there it states a vote by mail ballot from an

4 overseas voter in any general election which is post

5 marked or dated no later than the date of the election

6 and received no later than 10 days after the date of

7 the election, in this case that's November 16th, 2018,

8 shall be counted as long as the vote by mail ballot is

9 otherwise proper.

10 Your Honor, expressio unius est exclusio

11 alterius. The inclusion of one thing implies the

12 exclusion of another. In this case the statute with

13 regard to a recount in a general election specifically

14 allows under 101.6952 and provides the supervisor of

15 elections with an ability to go and count as they go

16 any mail-in ballots that meet the two criteria with

17 regards to overseas and military ballots. The Florida

18 election code does not contain a similar provision with

19 regard to ballots that have been received, but that

20 were not cast. The very definition of recount is to

21 count those ballots that were cast and counted in the

22 prior election, in the initial count.

23 In fact, Your Honor, if you look at the

24 statute it states and. I'll take you now to tab, I

25 believe it's 13, let me see, deadlines for submission

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1 of the County returns by the Department of State which

2 is 102.112. Returns must be filed by 5 p.m. on the

3 seventh day following a primary election and by noon on

4 the twelfth day following the general election.

5 However, the Department of State may correct

6 typographical errors including the transposition of

7 numbers and any returns submitted to the Department of

8 State, et cetera. Then it states if the returns are not

9 received by the Department by the time specified such

10 returns shall be ignored. It doesn't say may, doesn't

11 say may be considered by the supervisor of elections,

12 and the results on file at that time shall be certified

13 b y the Department.

14 Now, there is a default provision that's

15 important to address which is in section tab 14. If

16 the canvassing board is unable to complete the recount

17 prescribed in this subsection by the deadline the

18 second set of unofficial returns that are submitted by

19 the canvassing board shall be, and this is again shall,

20 shall be identical to the initial unofficial return and

21 the submission shall be included, a detailed

22 explanation as to why it was unable, the supervisor of

23 elections, unable to timely complete that count. So

24 the default is to go back to the initial count if, in

25 fact, that recount is not met in time by the deadline.

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1 The very definition of that is we are recounting

2 because of this narrow margin that which has been

3 counted, not that which has not been counted.

4 Now, at 10:56 p.m. last night I received the

5 response in opposition from Bill Nelson and it claims

6 that it's okay if the supervisor of elections is

7 negligent, or has some mistakes, or there's some

8 procedural non-compliance, but there is no where in

9 this statute or in the code codifying the procedure,

10 the Florida election code, where it allows to keep

11 counting because there's a mistake or an improper

12 action, or just merely they didn't catch it in time.

13 There is nothing that states that. However

14 THE COURT: Can I ask how many ballots your

15 issue relates to?

16 MS. RODZ: Yes, Your Honor, certainly. May I

17 approach?

18 THE COURT: Sure.

19 MS. RODZ: And I've already provided this to

20 Mr. Pettis. We reviewed this and there is no dispute

21 with regard to the fact that there were 25 ballots that

22 are at issue --

23 MR. PETTIS: Pages.

24 MS. RODZ: Pages, thank you. And of those

25 pages there are 13 page one's of the ballot. Page one

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1 is what contains the recount issues that are in this

2 election, Your Honor.

3 THE COURT: So on the best day this effects 13

4 votes?

5 MS. RODZ: Yes. But it's not about 13 votes,

6 Your Honor, this is about the integrity of the election

7 process.

8 THE COURT: What exactly are you asking me to

9 do with these 13 votes? They have been counted, right,

10 Mr. Pettis?

11 MS. RODZ: No, Your Honor.

12 THE COURT: They have not been counted?

13 MR. PETTIS: They have not been counted, they

14 have been segregated.

15 THE COURT: They are not even in the current

16 counts?

17 MS. RODZ: Correct. And we are seeking to

18 correct any potential -- because we have been advised

19 that they intend to be counted should the Court allow

20 them to. They were segregated and in fact the

21 canvassing board if you look at, so I personally went

22 and did the inspection at the Broward County Supervisor

23 of Election offices and I reviewed these and, by the

24 way, this is favorable to the Republican party. It's a

25 plus one, in fact, for the Republican party if they

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App.060 Page 23

1 were counted. This is not about who gets more votes.

2 This is about ensuring that the statute is adhered to

3 100 percent. That the voters of this county and of the

4 state can feel comfortable that there is integrity of

5 the election process and of the statute being adhered

6 to. So it doesn't matter that it's 25 ballots. In

7 fact, Your Honor, if today you were to say, you know

8 what, they were there, it's okay, you can count them,

9 who is to say that Dr. Snipes does not say mea culpa,

10 guess what, in this other room, because I have been

11 there, there are multiple rooms, we didn't realize that

12 there's another 10,000 that have not been counted and

13 you know what they are going to be slid in right now

14 before 3 p.m. and they are going to be counted. That

15 is the fear, Your Honor. The fear is not the fact that

16 there's 25 ballots that happen to help the Republican

17 party. The fear is that if in fact we allow parties to

18 disregard, and more importantly the supervisor of

19 elections, this statute states --

20 THE COURT: Hang on just a second. When you

21 start making these kinds of unsubstantiated claims

22 about thousands, and thousands of ballots being slid

23 into the count.

24 MS. RODZ: No. No. Let's be clear, I'm not

25 saying or assuming that they are. What I'm saying is

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1 that if, in fact, we say that any ballots that have not

2 been cast and counted in the initial unofficial return

3 in a general election where a recount is at issue.

4 Here we have a recount at issue. A recount defines the

5 fact that if you are recounting that which has already

6 been counted.

7 THE COURT: Okay. Just ask about some of the

8 safeguards in place about the issues that you're

9 concerned about. When the supervisor certified the

10 unofficial results, when was that, Wednesday, Thursday?

11 MS. RODZ: Saturday.

12 THE COURT: Saturday.

13 MS. RODZ: Sure.

14 THE COURT: Then they do the machine recount,

15 there is some degree of being able to compare what they

16 certified on Saturday and what the machines are going

17 to show when the ballots are tallied by the Secretary

18 of State this afternoon or whenever they do that. So

19 if there is this wide discrepancy that concerns you

20 about potential ballots showing up, wouldn't you be

21 able to look at that and, in fact, if it said that

22 there's a miniscule difference in what she declared is

23 unofficial and what becomes the official count, why am

24 I getting involved in this now until you can show me

25 that there is something here that I need to be y•- Veritext Legal Solutions 800-726-7007 305-376-8800

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1 concerned about that would require injunctive relief?

2 MS. RODZ: Your Honor, it's not a matter of

3 if somebody -- if there's a huge disparity do we then

4 look at it. It's a matter of ensuring that the voting

5 and that the electoral process is preserved. If we say

6 here, let's just look at it after the fact, the problem

7 is that we, as parties and as officers of this Court,

8 we know there's a problem. We know that these 25

9 ballots were counted after the fact. We know that in

10 fact the canvassing board, and I quote because I

11 personally read the document that was on top of the 25

12 ballots, the canvassing board moved to have these

13 ballots set aside because they were canvassed after

14 unofficial results certified by the board of

15 Tallahassee, they themselves had the gut of wait a

16 minute, this is done after. The board voted

17 unanimously to recommend and I quote, to the

18 supervisor, that these ballots be held separately so

19 that they are easily identifiable to those objectives.

20 And this was signed off by County Commissioner Daphne

21 Dantis (phonetic), I'm sorry if I misstate that, Judge

22 Betsy Benson and Judge Deborah Carpenter. Very good,

23 well respected individuals that are properly doing

24 their job. They are acknowledging that this is

25 something that has occurred after fact.

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1 Now these have been segregated. The minute you

2 put them into the system it's not a recount. We are

3 now in a primary election where you have an official

4 and an unofficial and then a second unofficial as a

5 matter of right. You only have a recount and a second

6 return that's not the final if there's a recount. So

7 if we are dealing with a recount --

8 THE COURT: If I were to grant the relief you

9 seek what exactly are you asking me to direct the

10 supervisor of the canvassing board to do?

11 MS. RODZ: Not to count them in the recount

12 because they were not counted, so they cannot be

13 recounted that which has not been counted.

14 THE COURT: And the recount is almost over

15 from what they are telling us. Normally they would do

16 this recount after they -- normally they count these

17 after they sent the official results, so to speak, from

18 the machine recount to the Secretary of State.

19 MS. RODZ: Your Honor, when we filed this

20 motion Mr. Pettis and myself spoke and they agreed that

21 they would not count them until the Court ruled and so

22 that's why we allowed the time to lapse between the

23 filing and this time. So if the Court -- and all they

24 have to do is stick them in and they will be counted

25 before 3 p.m. which is their deadline.

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1 THE COURT: Okay. Now, let me focus on the

2 legal part of this which I think is a glaring weakness

3 in your case and let you respond and hear from the

4 other parties because I want to give everybody equal

5 time here.

6 MS. RODZ: Certainly.

7 THE COURT: The statute with respect to

8 challenging an election is glaringly obvious in this

9 case. It's 102.168 and one of the provisions of the

10 grounds of contesting the election of this section is

11 receipt of a number of illegal votes or rejection of a

12 number of legal votes sufficient to change or place in

13 doubt the result of an election. So if you have an

14 adequate remedy at law under 102.168, if you're right

15 about these ballots, why is that not an election

16 contest after the votes have been counted that would

17 come back to me for me to make this final determination

18 because it seems to me you've had an adequate remedy of

19 law which would preclude me granting injunctive relief.

20 MS. RODZ: Your Honor, we are here trying to

21 avoid a post contest issue with regard to something

22 that we all know and at which the facts are undisputed.

23 And if we can prevent the issue and come before this

24 Court and resolve it why kick the can down the road.

25 THE COURT: Well, because I have to follow

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1 the law, that's why I kick the can down the road.

2 That's what the laws says, in my opinion, it says if

3 you want to contest an election here are the grounds

4 for contesting it. One of them is rejection of a number

5 of legal votes sufficient to change or place in doubt

6 the result of an election.

7 MS. RODZ: Yes, Your Honor.

8 THE COURT: You're just going to have to tell

9 me how do you meet the second prong of request for

10 injunctive relief and that you do not have an adequate

11 remedy at law if your request for injunctive relief is

12 denied.

13 MS. RODZ: Your Honor, I don't believe that

14 we have an adequate remedy of law when we have the

15 integrity of this process is at stake. The fact that

16 we are sitting here knowing the statute is not being

17 adhered to requires us to act and so there is no

18 adequate remedy of law to go back, try to segregate

19 these ballots, try to tell our voters in this community

20 it doesn't matter, we are going to go ahead and breach

21 the statute, and we are going to disregard the duties

22 that are required that are very succinctly placed in

23 this statute because, you know what, we can possibly

24 try to contest it later. That is not what this process

25 is about.

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1 We are tax payers in this community. We have

2 to ensure we do not run into court unnecessarily. That

3 we afford the tax payers in this community the time and

4 effort of dealing with issues when they are ripe. We

5 are all here, there is no question that the issue is

6 simply argument. In fact, in good faith I met with

7 Mr. Pettis by phone on two occasions. We discussed, we

8 agreed to the form of this document, the fact that

9 there was 13,000 at issue and I asked profusely, if you

10 have another statute, if there is another fact that I

11 need to know, tell me, I'm open, I don't want to waste

12 Judge Tuter or the tax payer's time with our expense of

13 a hearing. And the answer to me was, no, in good faith

14 he very honestly and responded and said, it's pure

15 argument that I am going to make with regard to my

16 interpretation of the statute in accordance of how we

17 believe it's ready. Now, we have a duty to come before

18 the Court. Now, the public interest is at stake.

19 THE COURT: Listen, everybody has a public

20 interest in what's going on in this election. You are

21 going to have to convince me on the four. I have got a

22 lot of lawyers here and a lot of issues and I read your

23 brief.

24 MS. RODZ: Okay. I will reserve, Your Honor, a

25 couple minutes.

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1 THE COURT: You can reserve for rebuttal.

2 MS. RODZ: Sure.

3 THE COURT: Whoever else wants to argue on

4 this and then I will let you come back up.

5 MS. RODZ: Thank you, Your Honor.

6 THE COURT: Thank you very much. Who else

7 wants to argue this issue?

8 MR. PETTIS: Good morning, Your Honor. Judge,

9 your instincts, your understanding of the law has taken

10 you to the proper place. What you just heard from

11 Counsel is her argument in a contest to this election.

12 She can utilize all of the statutes she just stated and

13 present on behalf of her client why the canvassing

14 board of Broward County and Dr. Snipes, as the

15 supervisor of elections, should not have included

16 whatever votes they want to talk about. In this

17 instance we are talking about a net one vote. To think

18 that we are using the Court's time on net one when you

19 have and you cited the proper statute, and when I spoke

20 with Mrs. Rodz I stated, you know, we had a point of

21 disagreement because I put in my papers and I put this

22 in all the cases, Judge, that when you read the context

23 of law that governs all of what we are in this court

24 trying to do it clearly implies that you got to wait

25 until the end of the election. You cannot interject

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1 this Court of equity into little disputes all around

2 the state, Judge, and it opens you up to be in a place

3 that this Court should not be in. It opens up

4 inconsistent jurisdiction. They are not in Bay County

5 trying to get rid of the 150 votes that that supervisor

6 of elections said he definitely did not follow the law

7 and allowed 150 --

8 THE COURT: Might not be, but I think

9 somebody else was.

10 MR. PETTIS: Well, but I'm saying if they are

11 interested in the integrity of the process, Judge, they

12 are interested in making sure the integrity of our

13 election system is maintained. That's 150 votes up

14 there. We are talking about one here.

15 THE COURT: Can I ask you if I would deny the

16 injunctive relief what is the status on those ballots?

17 Where do they remain and what happens to them should

18 there be a contest and I consider this at a later

19 stage?

20 MR. PETTIS: First of all, they have been

21 segregated and it was stated by the canvassing board, I

22 can't remember the date now, Judge, those votes that

23 were first page ballots and it's 13 of them, it's not

24 25, it's 13 of them, are going to be counted into the

25 next which is the next report at 3:00 p.m. today and we

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1 know the number is 13. We have six, seven for Scott

2 and six for Nelson, we know that. So we are talking

3 about one. If we get to the end and one of these

4 individuals lose by one vote they will know where to

5 come.

6 THE COURT: I sure hope that doesn't happen.

7 MR. PETTIS: They will know where to come at

8 least from this particular point, Judge. But what I'm

9 raising, Judge, is if you went around to Senator

10 Nelson, if you went around to any of those other

11 candidates, everybody, democrats, republicans alike

12 they all have something they want to dispute, but we

13 can't do this each and every time. The laws under

14 102.168, Judge, lays out the road map and the road map

15 talks about indispensable parties. We have them in

16 this courtroom, they brought it against Dr. Snipes as a

17 supervisor of elections. But if you read on in the

18 statute that you were just referencing it talks about

19 the canvassing board --

20 THE COURT: Generally that's the suit against

21 the canvassing board.

22 MR. PETTIS: And it talks about the election

23 canvassing commission which is the governor, Governor

24 Scott, and two cabinet members must be sued and contest

25 these things because they are ultimately going to be

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1 the ones to certify it.

2 THE COURT: Well, I think they have to sue

3 them on the contest, I'm not sure if we are judging

4 them on injunctive relief.

5 MR. PETTIS: They do not on injunctive

6 relief, Judge, you are absolutely right, but the

7 problem they have and you asked the exact proper

8 question, is how can you convince me you don't have a

9 remedy at law. This is the remedy at law. They can't

10 get around that.

11 THE COURT: Anybody else want to argue this?

12 Mr. Samuels.

13 MR. SAMUELS: Yes, Your Honor. I would just

14 like to remind the Court, that already knows, that this

15 is an injunctive proceeding and you have your equitable

16 hat on right now and it is the intent of the voters

17 that we really have a concern about these 13

18 individuals. And what happened Saturday morning when

19 the results were due at 12:00 I was at the canvassing

20 board proceeding, the Florida Democratic party had a

21 standing objection from the canvassing board that any

22 votes were rejected we would have a standing objection

23 to that. The other party chose a different tactic and

24 was objecting more frequently which was within their

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1 and the canvassing board had a decision to make, do we

2 stop it now with 25 people we didn't get to or 13

3 people we didn't get to, whatever, and make sure the

4 certified results, the unofficial results, I'm sorry,

5 are sent to the state of Florida by noon, or do we go

6 through the 25 votes and miss the deadline.

7 Now, Your Honor, you have an equitable

8 obligation here as you know, and so under those

9 circumstances there's no need to enter an injunction.

10 THE COURT: Can I just ask you, Mr. Samuels,

11 if you can verify on behalf of your client, the

12 democratic party, do you agree with Mr. Pettis's

13 assessment that this 13 votes and the count that the

14 supervisor puts in before the deadline today would be 7

15 in favor of Scott and 6 in favor of Nelson?

16 MR. SAMUELS: I have no reason to dispute Mr.

17 Pettis's calculation.

18 THE COURT: The Democratic party's position

19 is that based on what the supervisor has said, unless I

20 rule otherwise, the supervisor is going to include

21 those votes in the tally that they certify and sent to

22 the state today, correct?

23 MR. SAMUELS: Yes, they should be included.

24 THE COURT: Thank you, Mr. Samuels. Anybody

25 else?

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1 MR. HAMILTON: Good morning, Your Honor.

2 Kevin Hamilton on behalf of the Bill Nelson and the

3 Democratic Senate Campaign Committee. The motion

4 should be denied, Your Honor, as the Plaintiff has

5 clearly failed to meet the high and demanding standards

6 for injunctive relief.

7 THE COURT: Who did you say you were speaking

8 for again?

9 MR. HAMILTON: The Bill Nelson campaign and

10 the Democratic Senate Campaign Committee.

11 THE COURT: I will ask you the same question

12 before you tell me what else I need to know that I just

13 asked Mr. Samuels, do you agree with the supervisor's

14 attorney that this pertains to 13 votes, 7 in favor of

15 Scott and 6 in favor of Nelson?

16 MR. HAMILTON: I have no basis to form an

17 opinion one way or the other. I don't dispute Counsel's

18 representation.

19 THE COURT: And then the Nelson campaign is

20 taking the position that the supervisor should include

21 those in the count that's going to the Secretary of

22 State today?

23 MR. HAMILTON: Absolutely, Your Honor.

24 THE COURT: What else did you need to tell

25 me.

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1 MR. HAMILTON: The relief that is requested in

2 this injunction is to disenfranchise Broward County

3 voters who did everything right and were fully entitled

4 to vote in this election simply because election

5 administrators failed to follow interim unofficial

6 deadline. That request is breathtaking and contrary to

7 Florida law and I'll just briefly go through the

8 elements required in any injunction motion. First,

9 Plaintiff cannot establish a strong likelihood of

10 success on the merits. Counsel has pointed to Florida

11 Statute 102.141 sub 5 which provides the interim

12 deadline for reporting unofficial return. But there's

13 nothing in that statute, and she read most of it, that

14 provides that a remedy for a failure to meet that

15 deadline is disenfranchisement of lawful voters who did

16 everything right. Had the legislature intended such

17 draconian remedy it would have said so but the statute

18 is utterly silent on that point. And in fact Florida

19 law stands in direct opposition to that notion. The

20 Florida Supreme Court as held in the Boardman v. Esteva

21 case, when the voters have done all the statute has

22 required them to do they will not be disenfranchised

23 solely on the basis of the failure of the election

24 officials to observe direct statutory instruction. And

25 the cases on point are numerous, we cited them in the

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1 brief that we filed with Your Honor late last night and

2 I won't repeat them here. But it is almost -- it's a

3 patently absurd result and almost certainly

4 unconstitutional not to count ballots timely submitted

5 b y lawful voters who did everything that the law

6 demands them to do. They showed up, they had

7 appropriate ID, they were properly registered, they 8 were United States citizens, they were Florida

9 citizens, and they cast their ballot. And just because

10 the County, the administrators failed to meet the

11 interim deadline we would then disenfranchise them. I

12 don't believe that is appropriate.

13 Second, Plaintiff can't identify any

14 irreparable harm resulting from the counting of votes

15 cast by American citizens fully entitled to vote and

16 who did so properly. In fact, it's the voters of

17 Broward County who would be disenfranchised who would

18 suffer permanent and irreparable harm from such an

19 injunction. Finally, it's decidedly not in the public

20 interest to disenfranchise voters who are entitled to

21 vote and who properly did so simply because of this

22 administrative error. Florida law strongly favors

23 protecting the fundamental rights of those as numerous

24 cases have held. The real parties of interest the

25 Florida Supreme Court has held not in a legal sense but

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1 in realistic terms are the voters. They are possessed

2 of the ultimate interest and they to whom the Court

3 must give primary consideration. The proposed

4 injunctive relief stands in direct and stark contrast

5 to that Florida law and would work a grave disservice

6 to the voters of Broward County and for those reasons

7 the motion should be denied.

8 THE COURT: Thank you. Mr. Meyers.

9 MR. MEYERS: Very briefly, Your Honor. Andrew

10 Meyers for the canvassing board with BSO, Rene Harrod,

11 Joe Jarone, and Scott Andron. Pretty much everything

12 has been said so I'm not going to repeat it. One of

13 the things that I would like to mention, however, is

14 that we advised the canvassing board that those 25

15 ballot pages should be segregated and even after

16 running them through the system should remain

17 segregated if that's essentially to make sure that

18 there's an adequate remedy for a post certification

19 challenge, as Your Honor noted under the statute, once

20 the election has been fully certified. We don't

21 believe any of the elements for temporary injunction

22 have been met and the reason and the most important

23 element here, the easiest one I think to demonstrate

24 that hasn't been met, is that there's an adequate

25 statutory remedy. The statute is written that way for

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1 very practical reasons. Number one, we are supposed to

2 allow this process to continue and be completed without

3 interruption. And number two, judicial resources

4 should not be expended in deciding these issues unless

5 it matters, unless the number of votes at issue can

6 change the outcome of the election.

7 I would like to reinforce one thing that

8 Mr. Samuels said. We were confronted with something at

9 11:15, I think, on this past Saturday, a decision as to

10 whether to direct and work with the supervisor of

11 elections to transmit the results to Tallahassee or try

12 to squeeze in those last 25 ballot pages. And I'm

13 really glad with the advice that we rendered in

14 conjunction with the Supervisor's Counsel to hold off

15 on the 25 because presumably if we had missed the

16 deadline by even a minute they would be arguing that

17 none of the votes would count today.

18 The last thing I'd like to mention to Your

19 Honor is we had a Federal court ruling either late last

20 night or this morning that raised the issue as to

21 whether preventing somebody from having their vote

22 counted when there is an issue with their signature and

23 they may not have done everything they were required to

24 do, but where clear intent to be shown that that may be

25 a constitutional problem. Here there is no dispute and

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1 it should not be lost in the flurry of activity that

2 all 25 of these ballot pages, including 13 at issue

3 with a net one gain by the Plaintiff here, clearly show

4 the intent of the parties. These are clearly valid

5 votes, the canvassing board held them up when they were

6 at issue, this was done in the open, the advice we gave

7 was for reasons of caution not because we think that

8 there is a requirement in the statute to not count

9 these votes if they are not canvassed by 12 noon.

10 Thank you, Your Honor.

11 THE COURT: Thank you, Mr. Meyers.

12 MS. RODZ: May I respond?

13 MR. RYAN: Good morning, Your Honor, Mike

14 Ryan. I stand before you on behalf of Joanne Lynch Aye

15 as an intervenor as well as the League of Women voters

16 of Florida, Common Cause of Florida, non-partisan

17 organization, Your Honor, only interested in making

18 sure that every legally cast vote of an eligible voter

19 is in fact cast and counted. I'm here with my

20 colleagues from the Brennan Center for Justice and

21 Simpson Thacher as well as Mr. Olin. I would like to

22 turn over the brief argument, if I may, to Myrna Perez

23 who Your Honor has allowed to appear pro hac and as a

24 final point I would like to thank all the parties for

25 allowing us to intervene in this and Your Honor for the

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App.078 Page 41

1 grace to have us argue this morning.

2 THE COURT: Very brief.

3 MS. PEREZ: Yes, sir, I will be brief. I

4 wanted to point out, and I have a few statutory

5 provisions that I think are helpful and have not been

6 considered and that is -- and they are highlighted

7 there for Your Honor. In two of the main statutory

8 provisions that are being invoked here there is

9 actually an indication about what is supposed to happen

10 if some ballot doesn't get counted. In the main one

11 that is dealing with the Saturday counting ballots it

12 says nothing about what happens if a ballot doesn't get

13 counted. So to be reading out of whole cloth a

14 prohibition on further accounting when those things

15 existed otherwise is an untenable position of statutory

16 interpretation, Your Honor. Moreover, the Court is,

17 and if you will look at the Boardman case, Your Honor.

18 The court does give lessons as to what should be done

19 in the event that the court is not persuaded that

20 there's one clear answer to the statutory

21 interpretation and those lessons are as follows. One,

22 the voters are primary in this. If you have to make a

23 decision about a convoluted statute tie goes to the

24 voters. Two, it is the job of the court to avoid

25 disenfranchisement. Therefore, the work the court must

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App.079 Page 42

1 be doing is to find a way to harmonize all of these

2 provisions and it is marked for you in the case, Your

3 Honor, to harmonize the provisions such that voters are

4 not being disenfranchised. And, finally, it is

5 unacceptable for voters to be bearing the brunt of a

6 mistake that an election official is making not when

7 counting these votes.

8 If I may also argue as a matter of public

9 policy the position that the Plaintiff would take would

10 be incentivizing malfeasance on the part of election

11 administrators to not get to the ballots because they

12 would be frozen in time being that whatever they got to

13 in the first instance would be stopped. That is not a

14 position that I believe this Court or any court wants

15 to be taking. And, moreover, punishing voters for the

16 mistakes or challenges that election administrators are

17 facing would be contrary to principles of both state

18 and federal due process. And I would then respectfully

19 submit, Your Honor, that you are going to need to

20 figure out a way to cohere these in a way such that

21 voters are not being disenfranchised because of the

22 actions of election administrators.

23 I would also just like to make one more point

24 with respect to the standard that's not been mentioned.

25 Candidates do not have a legally cognizable interest in

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App.080 Page 43

1 making sure that lawful ballots cast by eligible voters

2 are not counted. That is not a tenable position they

3 can take. If that position were to be tolerated that

4 would mean that they can challenge any election contest

5 in which they were unpopular. Plaintiff's counsel is now they 6 going to have to do better than that. Right

7 are just asserting that generalized interest in getting

8 generally speaking statutory rules complied with. We

9 all share that interest and, therefore, that is not

10 something that we should be viewed in their favor when

11 weighing the different elements of injunctive relief.

12 THE COURT: Thank you.

13 MR. RYAN: Judge, just if I may, as a matter

14 of record I have two declarations, one on behalf of

15 Common Cause of Florida and one on behalf of Joanne

16 Lynch Aye that I would like to provide to the Court as

17 a matter of record and I have copies for Counsel as

18 well.

19 THE COURT: Joanne Lynch Aye and Eliza

20 McClenaghan?

21 MR. RYAN: Yes, Your Honor.

22 THE COURT: I'll file those and make sure

23 there's a copy.

24 MR. RYAN: Thank you, Your Honor.

25 THE COURT: Ms. Rodz, you have a couple

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App.081 Page 44

minutes to respond.

MS. RODZ: Yes, Your Honor. Thank you. I

have bifocals.

THE COURT: Whatever she just handed me I

need a microscope to read. I know that problem.

MS. RODZ: Your Honor, Rick Scott for Senate

is not here to disenfranchise any voters, quite to the

contrary. Rick Scott for Senate is seeking to protect

the integrity of the voting process. Now, I heard

several arguments and I noted some key issues. With

regard to the success on the merits I heard that the

fact that the SLE failed to follow the deadline, that's

an acknowledgement of the fact that they failed to

follow the deadline. In the response I saw that they

state that there were mistakes, that there is

procedural non-compliance. That all leads to the

success of the merits that we have with regard to the

failure to follow the deadline.

Now, the Court went very poignant to what is

the irreparable harm. Now, there is no question that

the taint on the electoral process and the fate that

the voters have on the supervisor of elections ensuring

that she proceed with the duty to properly adhere to

the statute there will be irreparable injury. If our

voters cannot rely on the fact that the supervisor of

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App.082 Page 45

1 elections will ensure that her staff follow the statute

2 and adheres to the electoral process. Now today is the

3 first time that I heard that those 25 ballots will

4 continue to be segregated. That would assist in

5 preserving those ballots that have not been offered at

6 all to me before. But I will state that there is a

7 significant interest to ensure the irreparable harm and

8 the taint that has occurred with all of these filings

9 to ensure that the statute is adhered to, to know that

10 we can take sanctity in knowing that the supervisor of

11 elections is required to follow the law. We are here

12 with knowledge that there is mistake, failure,

13 negligence, procedural non-compliance. We, on behalf

14 of those voters, need to ensure that the law is

15 followed and we are here knowing these facts.

16 And so if, in fact, the Court is inclined not

17 to grant the injunctive relief I ask that the Court

18 order require those segregated ballots to remain

19 segregated. I also will note for the record that

20 Counsel for the supervisor of elections stated that all

21 25 ballots must be counted. Well, the canvassing

22 board, I don't know if they've reviewed these ballots

23 because I have, two of them were deemed by the

24 canvassing board to be invalid. So all 25 will not be

25 counted. There is two that are entirely invalid.

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1 MR. PETTIS: Judge, if I may, briefly?

2 MS. RODZ: I'm not finished.

3 MR. PETTIS: I thought you were packing your

4 stuff up, I apologize.

5 MS. RODZ: Yes. Your Honor, we are trying to

6 ensure several things. First, we believe that we have

7 met the merits, likelihood of success on the merits

8 with regard to the application of the statute.

9 Secondly, we do believe that there is irreparable harm

10 if we continue to take this process and not show the

11 voters of our state that the rules will be adhered to

12 b y the supervisor of elections and that the duties that

13 are required for them to follow will and shall be

14 followed. The statute is unequivocal on where they

15 shall follow certain guidelines, on what is different

16 between a primary election and a general election, and

17 a recount. You have not heard a single attorney in

18 this room tell you, Your Honor, it's right and let me

19 show you where in the statute it's right. Not one,

20 because it's not right. What they are doing is wrong

21 and it should not be allowed, Your Honor. And if the

22 Court is to allow them I ask that the order require will 23 that those ballots remain segregated because there

24 be post election issues, unfortunately, if that's the

25 case. Thank you, Your Honor.

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1 THE COURT: One minute, Mr. Pettis.

2 MR. PETTIS: Just to make it clear on behalf

3 of Dr. Snipes. At no point in time this morning did I

4 say that Dr. Snipes has admitted that she's done

5 something wrong with regard to these 25. In fact it's

6 to the contrary. We believe that the process that was

7 used with Dr. Snipes as well as the canvassing board

8 was 100 percent appropriate. We have a dispute on

9 that, but I want the record to be clear because there's

10 been many comments made by various parties of interest

11 here. And, secondly, Judge, as we discussed the law in

12 a previous hearing we had before you earlier this week

13 the law gives a presumption to elected official that he

14 or she is going to follow the law. She doesn't recall,

15 but we've always had these segregated 25 pages and 13

16 pages that have first page ballots on them and will

17 continue to segregate them even though they are going

18 to be in the number as of 3:00 today.

19 THE COURT: Thank you, Mr. Pettis.

20 MR. MEYER: Your Honor, may I just for 15

21 seconds?

22 THE COURT: All right.

23 MR. MEYERS: There has been a commitment to

24 keep these ballots segregated, however, any order

25 should not to be issued on that because the elements

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1 still need to be required in order to do that. None of

2 the elements are met for an injunction. So the

3 supervisor is on the record that the ballots will be

4 segregated in the event there's a post certification

5 contest.

6 THE COURT: Thank you, Mr. Meyers. Okay. So

7 there's a few things that are going to control my

8 decision in this and some of the other matters that are

9 pending with me today. I want to cite some case law

10 because at the end of the day my responsibility is to

11 follow the law and not get involved in the passion of

12 the various parties who are involved in this election

13 dispute.

14 First, I'm going to cite that the District

15 Court of Appeal in Wexler versus Lepore it's recognized

16 the right to vote is fundamental. Notwithstanding that

17 right there is no guarantee to a perfect voting system.

18 Florida has a strong public policy against judicial

19 interference in the democratic process of elections and

20 that is Brinkman versus Francois, and the Court of

21 Appeals gave us some guidance on this. Injunction will

22 not issue for the purpose of restraining the holding of

23 an election or the directing or controlling the mode in

24 which or the determination of rules of law in issuance

25 of which an election shall be held because the holding

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1 and conduct of an election during its progress is a

2 political manner with which the courts of equity have

3 nothing to do.

4 In the case cited to me in the briefs and this

5 morning the language is telling as to my

6 responsibilities. Boardman versus Esteva specifically

7 states, when the voters have done all that the statute

8 has required them to do they will not be

9 disenfranchised Solely on the basis of the failure of

10 the election officials to observe, direct, or complete

11 statutory instructions and so forth. So, therefore,

12 the question in this case is quite easy because for the

13 Plaintiff to prevail on the injunction they must meet

14 all four requirements of the statute governing

15 injunctions. In my mind, without having to even address a 16 the other three requirements, the Plaintiff fails in an 17 request for an injunction because they don't have

18 adequate remedy at law. Section 102.168 states, as

19 I've cited before, one of the ways to contest these

20 kinds of ballots is the receipt -- one of the contested

21 ways to contest an election is to challenge the receipt

22 of a number of illegal votes or the rejection of a

23 number of legal votes, which it sounds like these are,

24 sufficient to change or place in doubt the result of the 25 the election. Therefore, the supervisor may count

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1 13 ballots that are in question, 7 as I have been told

2 in favor of Governor Scott, 6 in favor of Senator

3 Nelson and preserve those ballots for future challenge

4 if that should arise after the election is complete,

5 okay. Let's see here, the moving, the winning party on

6 that is one of you guys. Mr. Pettis?

7 MR. PETTIS: Certainly, Your Honor.

8 THE COURT: If you could take my words and

9 put them into an order concisely as you can, with all

10 of the other things you have to do.

11 MS. RODZ: Your Honor, just solely for

12 clarity I just want to ensure that the order does not

13 talk about the proper or improper actions of

14 THE COURT: My order simply says you failed

15 because you have an adequate remedy of law. Anybody who

16 reads anything else into that and makes an

17 interpretation to the newspaper different from that

18 would be wrong. It's simply you did not meet the third

19 criteria of the request for injunctive relief. Okay.

20 That hearing having been concluded, what's the next

21 matter? Mr. LeMieux has an issue. Okay. Hang on one

22 second. You guys are here to see me on my regular

23 docket, right?

24 THE COURT REPORTER IN AUDIENCE: Your Honor,

25 I'm the court reporter for the 10:00 hearing.

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1 THE COURT: We are almost at 11 o'clock. We

2 are not going to finish right now and I have to say

3 because the system crashed, we could not even get up

4 what we have for hearing today. Assume the lawyer is

5 out in the hallway, which if they get here I'll discuss

6 what we need to do with my other cases today.

7 THE COURT REPORTER IN AUDIENCE: Starting at

8 10.

9 THE COURT: As soon as I can get a break from

10 this.

11 THE COURT REPORTER IN AUDIENCE: Stand by.

12 THE COURT: He's coming to report something,

13 the 10:00 ballot hearing? Is that what he is here for?.

14 Did you hire a court reporter?

15 MR. LeMIEUX: I do not believe we did. I'm

16 not sure.

17 THE COURT: We have a court reporter up here,

18 sir. So you may have an easy day, get paid and go

19 home. I don't know what they want to do.

20 MR. LeMIEUX: Yes, sir. I guess we got a

21 court reporter to be cautious, Your Honor.

22 THE COURT: So we have one, we will let him

23 be dismissed. Madam Court Reporter, are you doing

24 okay?

25 THE COURT REPORTER: I'm okay.

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1 THE COURT: Does anybody need to take a break

2 or we can keep going? Everybody is okay?

3 MR. RYAN: Judge, if we may be excused I

4 don't want to interfere with the progress of the

5 argument.

6 THE COURT: We are on the agricultural case

7 and the others can certainly leave. Thank you all for

8 coming. Have a good day.

9 MR. LeMIEUX: Your Honor, George LeMieux on

10 behalf of Matt Caldwell as well as the campaign to

11 elect Matt Caldwell Commission of Agriculture.

12 THE COURT: One minute.

13 MR. LeMIEUX: I apologize, Your Honor.

14 THE COURT: It's not a problem. All right.

15 Mr. LeMieux.

16 MR. LeMIEUX: Yesterday, Your Honor, in our

17 telephonic conference we had filed a motion for an

18 emergency order to require the supervisor of elections

19 to produce documents to us pursuant to the public

20 records request that we made last Friday at 3:00.

21 Mr. Pettis has worked to provide documents to us, but

22 it is not adequate and the documents we received are

23 not fully responsive or even substantially responsive

24 to our request. So I can go through all of those points

25 again with you, Your Honor. We went back and forth on

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1 the colloquy of what has been done and what hasn't been

2 done. Since the last time we spoke Mr. Pettis has had

3 his office and supervisor produce documents to us, some

4 of those are right here in front of my table which I'll

5 talk about in a moment. There was two basic areas of

6 documents that we wanted. We wanted documents in

7 response to request eight which was about the absentee

8 ballots. We received those documents and I'll talk

9 about that in a moment. Second, we wanted the email,

10 text and correspondence between the supervisor of

11 elections, her staff, amongst staff and then third

12 parties. We wanted those in terms of certain terms we

13 put in our public records request. We went back and

14 forth with Mr. Pettis on search terms. We went through

15 last night and, Your Honor, we were up until the small

16 hours of the evening trying to go through these

17 documents that we received at 8 p.m. And in terms of

18 the request to deal with the communications by the

19 supervisor and her staff we really didn't receive much

20 of anything. There's a lot of pages, it's really

21 mostly only one person, one custodian who we got

22 documents from and it's not really responsive. There

23 are no texts, or communications, or emails from Brenda

24 Snipes, for example, in what we could go through last

25 night trying to look through these documents. It's

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1 mostly copies of the same thing over and over again.

2 My client is prejudiced if we don't get that

3 information and we've asked for that information since

4 Friday. So we are entitled to an order, we brought

5 this before Your Honor on Monday, we brought this

6 before Your Honor on Wednesday and we'd like an order

7 on that.

8 THE COURT: I know you guys have been working

9 diligently so there's no fault and part of our

10 conversation last night was, as everyone knows now,

11 that I was disinclined to stop a bunch of people over

12 there working on the recount to look up documents and

13 check email searches. I wanted the recount to be

14 completed. So it sounds to me like the recount is

15 going to be completed soon which means some of these

16 folks would have access to gain, get into their

17 computer and comply with the public records request.

18 So what specifically, Mr. LeMieux, did you not get that

19 you're specifically asking him to get for you and I'm

20 going to see if that can be completed today as soon as

21 the recount has been completed.

22 MR. PETTIS: Judge, I'm sorry, if I can help

23 give an update. I mentioned in the previous hearing

24 that we were going to have additional material

25 submitted to him by noon. The vast majority of what he

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1 got was from one individual. That individual dealt

2 with the media and dealt with the outside and a lot of

3 request that he put on his search list triggered a lot

4 of the same stuff. I called Mr. LeMieux and

5 communicated with him on your searches in pulling up

6 one document was 141 pages because of the fact that he

7 had the names of a candidate in there. I can't help

8 that a lot of it is the same stuff. We are already

9 have to the printer -- we tried to•get the printer to

10 stay over time last night and I don't know -- did he

11 stay extra?

12 MS. KLAUBER: He did.

13 MR. PETTIS: He stayed extra to try to print

14 some of this stuff through the night. They are going to

15 have more stuff from the other individuals by noon

16 time. We have gone through, Judge, and addressed 9,

17 10, and 11 and they will have to get a chance to see

18 it. Two days ago when I was out there myself and was

19 talking to some of the individuals, one of which is one

20 of the directors, she said, I don't have any texts, I

21 haven't had the time to text. So the fact that you are

22 not getting what you think you should have, these

23 people are telling me there's not a lot out there with

24 these other individuals. It will be whatever they pull

25 off. I have gone through, as I said yesterday, Judge,

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1 I've have been out there, I've had Mr. Zeilman from my

2 office out there on the ground. He went back by there

3 this morning for a brief period of time. We've had two

4 lawyers from the supervisor of elections office over

5 there. We are collecting everything we can but it may

6 not be everything that Mr. LeMieux hoped for or wished

7 for but we are going through a very exhaustive search.

8 By noon time he will have more stuff. He got that

9 because he asked me to do a rolling release. And I got

10 him what I could so he could have something to start

11 with. The rest of the stuff will be there by noon time.

12 MR. HAMILTON: Your Honor, may I be heard?

13 MS. HARROD: So you're aware of the timing as

14 well. When we meet the second unofficial deadline

15 today at 3 p.m. we're not done. We're starting even

16 now to prep for the manual which is going to start

17 tomorrow morning at 6 a.m. The same people are doing

18 all of that same work. We will be done Sunday at noon

19 when the manual is done, but until then we are all

20 running pretty much 24/7.

21 THE COURT: I don't know where you all are

22 with all these documents. Both sides in this public

23 records request make legitimate concerns. It's clear,

24 Mr. LeMieux, to have them, they are not disputing that

25 from the other side. They are trying their best with

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1 everything that's going on over there at the office to

2 get you these, you're clearly entitled to this. All I

3 can say, Mr. LeMieux, is if you get additional records

4 at noon I can reconvene this hearing at 2 or 3:00 to

5 see where you all are and see what you were not given

6 and if you wish in a written order as to what might be

7 remaining that you don't have until you give me some

8 further guidance.

9 MR. LeMIEUX: First of all, Your Honor, just a

10 moment of personal privilege. My client, Matt

11 Caldwell, is in the courtroom so I want to introduce

12 him to the Court.

13 THE COURT: Thank you sir, welcome to the

14 courthouse.

15 MR. LeMIEUX: We've been asking for this

16 information since Sunday. We keep being told it's

17 coming. It's coming at 12, it's coming at 7, it's

18 coming at 12, it's coming at 7. We are not getting it.

19 And in all due respect walking up to a person saying

20 did you send any texts, is not how you do a public

21 records request. They have sophisticated IT people

22 over there. They have an enterprise software that can

23 pull all emails. You don't ask --

24 THE COURT: What specifically do you want me

25 to order?

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1 MR. LeMIEUX: I have a proposed order to you.

2 THE COURT: Did you show it to Mr. Pettis?

3 MR. LeMIEUX: Yes, Mr. Pettis has it. We

4 provided it to him yesterday and do you have a copy we

5 can hand to the Judge here?

6 MR. PETTIS: The one I looked at was a noon

7 deadline yesterday. I think it's a little irrelevant

8 to enter an order that we are going to need a noon

9 deadline yesterday, Judge.

10 THE COURT: Mr. LeMieux, while you're looking

11 _ -

12 MR. LeMIEUX: I have it, Your Honor. May I

13 approach?

14 MR. PETTIS: Can I see which one? Is it a

15 noon deadline yesterday?

16 MR. LeMIEUX: Since that's been violated.

17 MR. PETTIS: I don't think it's been

18 violated.

19 THE COURT: Both of you guys, stop it.

20 MR. PETTIS: Given, Judge --

21 THE COURT: Hang on. Mr. LeMieux, the boxes

22 that are in front of you that you said -- have you

23 looked through those boxes?

24 MR. LeMIEUX: We have, Your Honor. I'm

25 looking forward to talking to you about that.

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1 THE COURT: Of all of these things that your

2 client and you are most interested in, is there one

3 thing specifically that I can ask them to go do within

4 the next two-hour window to make sure they get it to

5 you by noon today as opposed to the broad search that

6 you're asking for. If that's what you're asking for

7 that's what I'll consider, but is there something

8 really specific of all of this that you want me to ask

9 them to go do an immediate search?

10 MR. LeMIEUX: We've asked for the text and

11 emails of the staff and the supervisor's office. I

12 told Mr. Pettis that we can start with the enumerated

13 senior staff and the supervisor. He basically produced

14 the documents from one person over and over again.

15 It's hard for me to believe that the supervisor isn't

16 sending out texts or isn't sending out emails. And I

17 would like to see the ones from the rest of those

18 senior officials. They are all enumerated there. All of

19 the deputies and the supervisors are enumerated there.

20 That's a good place to start.

21 THE COURT: Okay. I thought I was under the

22 impression that 1 through 4 and 5 through 7 he had

23 already given you?

24 MR. LeMIEUX: Yes, Your Honor. We are

25 talking about 8 with the absentee ballot information

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1 which we will talk about in a minute and then 9, 10 and

2 11 are the communications.

3 MR. PETTIS: And they have 8, Judge.

4 MR. LeMIEUX: Eight is what we got at 8:00

5 last night and reviewed all of last evening.

6 THE COURT: What else did you want me to

7 know, Mr. LeMieux?

8 MR. LeMIEUX: I want to talk a moment about

9 what we received at 8 if it's Your Honor's pleasure.

10 THE COURT: Okay. I am going to put an

11 asterisk on this order. Okay. I'm going to enter the

12 order with some modifications. You say one, two and

13 three essentially have been complied with so it would

14 be paragraph four and five that would be pertinent by

15 changing the operative dates on the order to say

16 Thursday, November -- today is the 15th, right?

17 THE CLERK: Yes, sir.

18 THE COURT: Thursday, November 15th 3 p.m.

19 and Thursday November 15th at 3 p.m. with an asterisk

20 that says without prejudice for the parties to

21 reconvene this afternoon for exigent circumstances,

22 meaning if something happens over there that Mr. Pettis

23 can show me that is truly exigent I will reconsider as

24 to the time, but by 3 p.m. today I'll order the

25 production, sir, okay. What else?

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1 MR. LeMIEUX: So Your Honor I just wanted to

2 make a point to the Court on the response that we

3 received from the absentee ballot information. This is

4 a report that presumably was run off of their machine

5 where they log in the ballots that come in by mail.

6 And this we asked for was for information about ballots

7 that were counted on the 6th and thereafter. Now, Your

8 Honor knows under Florida Law that ballots that come in

9 after 7 p.m. on election day, mail order ballots,

10 excluding military ballots, cannot be counted, that's

11 the law. If they come in after 7:00 they are not a

12 valid vote. To count them after 7:00 would be breaking

13 the law. So we went through about a thousand pages of

14 documents last night to look at this entry that

15 purports to be the record entry of when these ballots

16 were received by the supervisor of election's office.

17 And what we found is that there were 17,399 votes that

18 came in on November 6th or after. And that of those

19 votes 6,873 of those votes were logged in but came in

20 after 7 p.m.

21 THE COURT: Wait a minute. You said two

22 things.

23 MR. PETTIS: That's not true.

24 THE COURT: Hang on Gene. Logged in after 7

25 p.m.?

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1 MR. LeMIEUX: Yes, sir.

2 THE COURT: Go ahead.

3 MR. LeMIEUX: We have time stamps on here.

4 We've highlighted these. 10:59 p.m., 11:03 p.m., 10:43

5 p.m. We have 100 of the entries, and, again, this is

6 just my folks staying up in a conference room through

7 the middle Of the night since we only got this at 8:00

8 last night when presumably all that had to be done was

9 push a button to generate this request that we asked

10 for last Friday. We have 100 of these that are on the

11 7th, the 8th and even the 9th. Now, I just heard

12 Mr. Pettis pipe up, if he wants to go on the stand I

13 can cross examine him.

14 MR. PETTIS: I'm going to put you on the

15 stand. Do you want to get on the stand?

16 THE COURT: Again, both of you stop. We are

17 not going to have any of that. Gene, sit down. George,

18 don't make personal comments. Stick to the evidence and

19 stick to the law. The question I have is that only

20 shows you don't have evidence from, excuse me, let

21 me ask a brief question here. Mr. Meyers, do you know,

22 when the ballot comes in, these are absentees you are

23 talking about, sir, right?

24 MR. MEYERS: Yes, sir.

25 THE COURT: When the absentee ballot comes

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1 into the office at the supervisor, do they have a

2 mechanism that they put a stamp or some other clock in

3 the exact time that that ballot was received in the

4 office, if you know?

5 MS. HARROD: Good morning, Your Honor. My

6 understanding, and I spoke with the personnel yesterday

7 on this issue, is that they do mail pick-up on the

8 election day. The last pick-ups were 6:30 and 6:45

9 p.m. The only time they received mail after that was

10 the next afternoon. They do time stamp it when it gets

11 back to the office and then there is a process they

12 have to open the mail ballots obviously.

13 THE COURT: And so in the scheme of what is

14 certain to arise in this lawsuit, the supervisor is

15 saying we picked them up, they were in our possession

16 before the closing of the polls, but we did not count

17 them until we can open them and tabulate them like the

18 other votes.

19 MS. HARROD: Yes, Your Honor, and I confirm

20 that anything received the following day was

21 segregated.

22 THE COURT: Hold on, Gene, I'll give you your

23 chance. Mr. LeMieux.

24 MR. LeMIEUX: Judge, we have documents, we

25 have got lawyers testifying as to what may or may not

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1 happen. The documents, the only evidence that we have

2 right now show that these were logged in after 7 p.m.

3 THE COURT: Wouldn't that be true about a lot

4 of ballots, I mean, provisionals and everything else.

5 They come over to the supervisor's office on the day of

6 the election and on the day of the election the

7 supervisor has to open all of these things and count

8 the vote. They can't open them all at 7 p.m. I'm

9 assuming, right?

10 MR. LeMIEUX: Your Honor, I don't know. We

11 need to have an evidentiary hearing.

12 THE COURT: We can have that.

13 MR. LeMIEUX: We need to put people from the

14 supervisor of elections office on the stand to testify

15 to that. Based upon the incompetency of this office

16 there's no presumption that should be given that these

17 were actually logged in, or in their office, or in

18 their possession at 7 p.m. on election day. We are

19 talking about thousands of votes.

20 THE COURT: I have no idea who's right, okay,

21 until somebody comes in the courthouse, if it's

22 necessary, and raises their right hand and swears to me

23 the events, I have no idea. What are you asking me

24 today? I have signed your order, what else, if

25 anything else, would you like me to do from a judicial

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1 intervention to keep your case moving and to make sure

2 there's transparency from your client's standpoint?

3 MR. LeMIEUX: Thank you, Your Honor. After

4 we receive the response to our public records request

5 today at noon or whatever Your Honor entered at the

6 time, we will have a chance to review that and then we

7 are going to want to come back in front of you Your

8 Honor and have an evidentiary hearing on this issue.

9 THE COURT: Okay. So the order, Gene is

10 going to get you something by noon today and if you

11 could expedite that, Mr. Pettis, with the rest of the

12 material is ordered by 3 p.m. today. So if you can get

13 them as soon as you can, even though I put a time line

14 that would help. They can review those and then after

15 that whoever wants to can file whatever motions they

16 want for me to review additional issues. Okay.

17 MR. DAVIS: Judge, may I be heard for one

18 moment?

19 MR. PETTIS: I would like to be heard first,

20 Judge, with due respect.

21 MR. DAVIS: Go ahead.

22 MR. PETTIS: Were you through, Mr. LeMieux?

23 MR. LeMIEUX: I am, sir.

24 MR. PETTIS: I appreciate Mr. LeMieux's

25 dramatization of what he just put on the record. He's

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1 100 percent wrong. I really hope that he would have

2 gotten educated before doing that demonstration and

3 suggesting that there are 17,000 votes, that's wrong.

4 He fully does not appreciate the process. You stated

5 it, Judge, that when you go to the post office, which

6 is very near to the office, you don't want to

7 disenfranchise people whose mail has been sitting there

8 so they do the last run at 6:45, 6:45. We've put in our

9 exhibit that we provided to him yesterday, a document

10 that shows the last run. When they pick up those

11 things at 6:45 they are in their possession, they are

12 in the house of the supervisor of elections custody and

13 you start the processing. You can't process thousands

14 of ballots that have been received in the custody of

15 the supervisor by 7:00. Just as, Judge, in any

16 precinct around this state, if somebody is standing in

17 line and it's a long line in a particular precinct, if

18 you're in that line before 7:00, guess what, you get to

19 exercise your vote, and you get to have your vote

20 count. For him to suggest because there's a stamp on

21 it that has 8:00, 9:00, 10:00, but was in the

22 possession of the supervisor. Yesterday I told Mr.

23 LeMieux, he stated, who would be the person to address

24 this issue? Will it be Mary Hall? I stated, yes. So

25 you would have hoped that he would have wanted to be

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1 educated before suggesting in front of his client that

2 there's 17,000 votes that have been wrongly put in this

3 process.

4 MR. LeMIEUX: That's not what I said, Your

5 Honor.

6 THE COURT: Listen, you all can disagree but

7 you are not going to be disagreeable in this courtroom,

8 okay, so both of you maintain high standards here.

9 What I'm going to do is distribute that order, Mr.

10 LeMieux, you know that I'm on call through the weekend

11 to try to address whatever issues I can to keep the

12 peace until this election is over. So right now I'm

13 going to distribute the order and we are going to be in

14 recess until somebody files something and asks me to

15 intervene again based on what we've we done here today.

16 MR. DAVIS: Judge, Larry Davis for Nikki

17 Fried. We were prepared to go forward with an

18 evidentiary hearing today which I think was noted by

19 Mr. LeMieux and his office. I assume is that going to

20 be reset for tomorrow?

21 THE COURT: You weren't on the call

22 yesterday.

23 MR. DAVIS: I was.

24 THE COURT: I think he said that even if he

25 got the documents he couldn't go forward today because

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App.105 Page 68

1 it was late into the evening and he would put it off

2 until tomorrow. So right now it's in limbo. I'm going

3 to wait until Mr. LeMieux to notify everybody if he

4 still wants to go forward with that hearing and then we

5 will get notice to everybody in the case.

6 MR. PETTIS: As it relates to the evidentiary

7 hearing, we are right back to the hearing we just had

8 at 9:00.

9 THE COURT: Well, Gene, we will see.

10 MR. PETTIS: Okay.

11 THE COURT: I'm not telling anybody they

12 can't have access or have an argument. It may be it's

13 the same issue. I don't know, but I want to make sure

14 everybody has transparency. We will see what happens.

15 I don't want to predict the future as to whether

16 someone is going to have a hearing or not.

17 MR. PETTIS: I appreciate it. Yesterday on

18 the call we were going to do the -- I'm sorry -- we

19 were going to have the first hearing at 9:00, you were

20 going to hear my motion to stay which pertains to his

21 and then we were going to see where we go.

22 THE COURT: That's true and you're right, I

23 did not take up the motion to stay at all and some of

24 the parties have left, the intervenors have left. So

25 my question is, if you want to call that up tomorrow or

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App.106 Page 69

1 this afternoon or after you converse with all the

2 lawyers to make sure everybody has adequate notice to

3 come back if they are going to be heard on that motion.

4 MR. PETTIS: I'll work with Mr. LeMieux. He

5 will get a chance to review what he's going to get

6 between now and noon. If he wants to address it and we

7 come over here -- I don't want to pull everybody back

8 here for my motion to stay. I would like to have the

9 motion to stay heard before we move into an evidentiary

10 hearing. And my concern, as it was yesterday, my

11 staff, the supervisor's staff is still engaged and will

12 be engaged. I got a list from Mr. LeMieux and he has

13 about six, seven people that are busy out there and

14 will be busy through Sunday. I'm not blaming him for

15 wanting to talk to those people. As I stated

16 yesterday, I haven't even been able to put them aside

17 and prepare for an evidentiary hearing. They are

18 engaged. So I just didn't want the record to suggest

19 that we are going to have an evidentiary hearing

20 tomorrow because I can't have the witnesses here if I

21 have not prepared my witnesses. I have not even talked

22 to them yet. And I don't think this is timely, I don't

23 think it's necessary between now and tomorrow, and I

24 think this will be better picked up next week.

25 THE COURT: Okay. Again, I'm not making any

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App.107 Page 70

1 decisions on any of that because it's not before me

2 just yet. I'm going to say to the lawyers at the end

3 as I said earlier today, I think the most important

4 thing that I need to stay out of is interfering with

5 the current machine recount or interfering with, if

6 it's ordered, a manual recount and I certainly don't

7 want to prevent people from doing that, but I

8 understand Mr. LeMieux and his client's position on it

9 so I'm just going to wait until someone files a written

10 motion and I will deal with it at that time. We don't

11 know what is going to happen today. We don't know the

12 recount is going to take place and whether the

13 secretary is going to order that. There's too many

14 variables. Mr. Uustal.

15 MR. UUSTAL: Your Honor, two brief, but

16 important points. Number one, we've heard on the

17 record, although there's no order, that the 13 ballots

18 are going to be segregated but counted. Is the same

19 true for the 205 ballots, are they going to be

20 segregated and counted?

21 THE COURT I didn't hear any arguments on the

22 205 ballots just yet, did I?

23 MS. RODZ: That's Mr. LeMieux's motion.

24 MR. UUSTAL: I don't think we need to have

25 argument as long as they are going to be counted and

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1 segregated.

2 THE COURT: Mr. Meyers.

3 MR. MEYERS: Yes. We would advise the

4 canvassing board that that's exactly what should occur,

5 that they should be counted, but remain segregated for

6 purposes of a post certification contest.

7 THE COURT: In those 205 ballots just because

8 people want to know these things and they get

9 suspicious when they don't know things, do we know what

10 the breakdown of those 205 ballots is?

11 MR. MEYERS: We don't know the voting

12 breakdown, at least I don't, Your Honor. But what we

13 do know is that ballots were opened, our understanding

14 of the law anyways, should not have been opened. We

15 have the ballots canvassed, they all went before the

16 canvassing board. Canvassing board determined, I

17 believe, that 182 or was it 183 of the 205 ballots were

18 valid votes. The other 22 or 23 were not valid votes

19 and, unfortunately, they've been mixed in so they can't

20 be separated. That is an issue that if it matters to

21 the final vote total would be something that would be

22 challengeable in a post certification contest and, Your

23 Honor, we have not found any law directly controlling

24 that, so --

25 THE COURT: So for purposes now, the

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1 supervisor is going to segregate and reserve the 205

2 and the other 13 for potential of challenges in the

3 future?

4 MR. MEYERS: Yes, sir. Include them in the

5 second recount total so that -- excuse me, the second

6 transmission that occurs today, but keep them

7 segregated, Mr. Pettis, so that there is a good record

8 for a court post certification.

9 THE COURT: In an abundance of caution maybe

10 we need to send an order to the effect to the rest of

11 the other side.

12 MR. MEYERS: And we can certainly prepare for

13 that with the supervisor.

14 MR. PETTIS: Certainly, Judge. And I'm going

15 to make a call as soon as I get out of here to, again,

16 just continue the update on my knowledge of what's

17 being done. Those votes have clearly, the 22 and the

18 183, have been commingled. I want to make sure the 205

19 has been and will continue to be set aside. As an

20 officer of the court I'm going to do that as soon as I

21 walk out off here.

22 MR. MEYERS: But counted.

23 MR. PETTIS: Those votes are going up and

24 being counted.

25 THE COURT: Okay. Just include two lines in

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1 the order to say that for future preservation.

2 MR. LeMIEUX: May I be heard on this, Your

3 Honor. This wasn't what we were here for on this

4 morning, but those votes should not be counted and the

5 reason is you have invalid votes that have been

6 commingled with valid votes. And because the votes

7 have been separated from their envelopes we don't know

8 which ones are valid and which ones are invalid.

9 THE COURT: I thought the canvassing board

10 made a determination of a number of them.

11 MR. LeMIEUX: They did, but then they got

12 commingled with the good ballots.

13 THE COURT: Then would your request be that I

14 disenfranchise the valid ballots because only a few

15 were commingled?

16 MR. LeMIEUX: So Your Honor there is law on

17 this, it's not in a provisional ballot standpoint, but

18 there is law in the absentee ballot world.

19 THE COURT: Would your challenge be the same

20 as the Senator Nelson challenge earlier this morning by

21 injunctive relief to request me to not permit those to

22 be counted and would your argument be the same and my

23 argument be the same that my argument, my finding be

24 the same that this should be as a part of an election

25 challenge and not part of an injunctive relief.

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1 MR. LeMIEUX: Well, I would make that

2 argument a little bit different, Your Honor. You made

3 the decision, in all due respect, that there's an

4 adequate remedy at law. The election challenge is an

5 equitable remedy and there are other opportunities to

6 challenge the voting and election process besides an

7 election challenge that comes after there is

8 certification. The problem is, and this is in the

9 Boardman case, and the Boardman case is a case that of 10 talks about throwing out absentee ballots when some

11 the ballots are bad, commingled with good ballots. And

12 the court in that case says that -- they say the reason

13 for the rule is that since all the ballots have been

14 commingled and it is impossible to distinguish the good

15 ballots from the bad because all ballots are required

16 to be unidentifiable, then in fairness all the ballots

17 must be thrown out.

18 THE COURT: How does that mix with what I

19 read from that case it said if election officials makes

20 an error why should you disenfranchise the vote.

21 MR. LeMIEUX: Because there are factors in

22 Boardman. And those factors when there is a remand back

23 to the 1st District Court of Appeals, and they say

24 basically these are the reasons why what the court has

25 to evaluate when it's determining irregularities on the

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1 validity of absentee ballot case. That was an absentee

2 ballot case.

3 MR. HAMILTON: Your Honor, may I be heard?

4 MR. LeMIEUX: I'm not finished.

5 THE COURT: Let him finish.

6 MR. LeMIEUX: The following factors shall be

7 considered. The presence or absence of fraud, gross

8 negligence, or intentional wrongdoing. Whether there

9 has been substantial compliance with the essential

10 requirements of the absentee voting law. And whether

11 the irregularity complained of adversely effect the

12 sanctity of the ballot and the integrity of the

13 election. There are due process and equal protection

14 concerns here, Your Honor. If I cast a valid ballot and

15 some other person casts an invalid ballot by

16 commingling those together you are debasing and

17 diminishing the valid voters ballots. So while there

18 is a great protection in the law for access to the

19 voting and allowing the vote to be counted, there's

20 also protection in the law to not have illegal votes be

21 commingled with valid votes.

22 THE COURT: Well, okay. Listen, we've gotten

23 far stray from what was noticed. The notice is to the

24 public records issues, and we did not take up the

25 request for injunctive relief, but now it sounds like

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1 I'm being asked, in a very hurried manner, to decide

2 whether 205 votes can be counted with the numbers that

3 go up to the Secretary of State today, and I don't know

4 how I'm going to procedurally resolve that. It wasn't

5 even noticed for a hearing today. What do you want me

6 to do, Mr. LeMieux?

7 MR. LeMIEUX: I would suggest that it would

8 not be before the Court and that we deal that at a

9 later time.

10 THE COURT: It's not before the Court and the

11 canvassing board controls what goes on in the election

12 and that is to count those votes and I can't stop that

13 because that's not before me right now. And I'm not

14 inclined to take that issue up when it wasn't noticed

15 today and they are going to do this by noon today.

16 MR. LeMIEUX: Well, there's another recount

17 after this, Your Honor, there's the hand recount that

18 will come after this manual recount.

19 THE COURT: So you're suggesting that even

20 though you oppose what's getting ready to happen you

21 can take it up, this issue up, and bring it back before

22 me on the manual recount issue.

23 MR. LeMIEUX: I can and I believe that when

24 we have an evidentiary hearing we can make further and

25 more complete argument on this point.

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1 THE COURT: Sounds good.

2 MR. HAMILTON: Mr. Hamilton for the Nelson

3 campaign. There is a Federal court order that was

4 entered this morning, Your Honor. Counsel refers to

5 these as illegal votes, these are not illegal votes.

6 These are voters who showed up at the polls, who had

7 identification, everybody agrees they were lawful

8 voters. The only reason they were forced to vote a

9 provisional ballot was because a connectivity problem

10 didn't allow verification of the registration status at

11 that time at the poll. So they were forced to vote

12 provisional ballots and they did. And then the

13 election administrators confirmed they, in fact, were

14 properly registered.

15 THE COURT: Mr. Hamilton, I said I wasn't

16 interfering. The canvassing board is controlling the

17 election over there right now. They intend to send the

18 votes up and count them, that is the canvassing board's

19 discretion. Anyone wishes to challenge that has the

20 right to do that under the law.

21 MR. HAMILTON: Okay. I'm sorry for being

22 long winded, Your Honor. I just wanted to mention that

23 the Federal court order this morning allows each of

24 these individuals of the so-called illegal voters to

25 cure what the canvassing board believes would be a

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1 signature mismatch that's covered by the order.

2 THE COURT: By 5:00 some other judge may rule

3 another way. I don't know what's going to happen.

4 Right now we are in recess until I get another motion

5 or somebody contacts me.

6 MS. RODZ: Your Honor, if I may?

7 MR. MEYERS: We want to make sure we comply

8 with the Court's directive. The Court would like for us

9 to prepare an order requiring that since these votes

10 are going to be counted as 205 that they remain

11 segregated.

12 THE COURT: All I'm saying is they remain

13 segregated. How the canvassing board wishes to do that

14 is their decision.

15 MR. MEYERS: Thank you, Your Honor.

16 MS. RODZ: And we also have in that same

17 order that the 25 would be segregated?

18 THE COURT: Yes.

19 MR. UUSTAL: Your Honor, can we get a copy of

20 all the evidence or all the public records request?

21 THE COURT: You can talk to Mr. LeMieux as to

22 how you want to get it, there is three banker boxes

23 there. Thank you all. Have a good day.

24 (Thereupon, the hearing concluded at 10:30

25 a.m.)

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REPORTER'S HEARING CERTIFICATE 2 STATE OF FLORIDA: 3 SS. COUNTY OF DADE: 4 5 I, NANCY D. SMITH, Registered Professional 6 Reporter and Notary Public in and for the State of 7 Florida at Large, do hereby certify that I was 8 authorized to and did stenographically report in 9 shorthand the hearing before THE HONORABLE JACK TUTER, 10 that the foregoing pages numbered from 1 to 79, 11 inclusive, constitute a true and complete record of my 12 stenographic notes 13 I further certify that I am not a relative, 14 employee, attorney or counsel of any of the parties, 15 nor am I a relative or employee of any of the parties' 16 attorney or counsel connected with the action, nor 17 financially interested in the action. 18 Dated this 16th day of November 2018. 19 20 ?Amy 4e. .4*-4etf(

21 NANCY D. SMITH

22 Registered Professional Reporter 23 24 25 •_ Veritext Legal Solutions 800-726-7007 305-376-8800

App.117 [& - absurd] Page 80

13,000 29:9 3 7 14 16:10 20:15 & 2:4,16 3:14 3 18:12,16 23:14 7 7:12 16:17 17:17 1400 3:11 35:14 0 26:25 56:15 60:18 17:18 34:14 141 55:6 60:19,24 65:12 50:1 57:17,18 4:20 07 1425 2:7 30 17:1 59:22 61:9,20,24 1 15 1:17 47:20 33020 2:24 64:2,8,18 1 59:22 79:10 150 31:5,7,13 33131 1:24 2:5 79 3:24 79:10 10 19:6 51:8 55:17 15th 14:22 60:16 33133 2:17 7:00 61:11,12 66:15 60:1 60:18,19 33301 1:20 2:11 3:8 66:18 10,000 13:12 23:12 16th 19:7 79:18 3:20 7c 18:6,6 100 23:3 47:8 62:5 17,000 66:3 67:2 33301-4206 3:12 7th 2:11 62:11 17,399 61:17 62:10 66:1 33301-4800 2:21 8 1750 2:14 1000 3:7 33394 3:16 8 53:17 59:25 60:3 18-026470 1:3 2:7 101.6952 19:2,14 33401 60:9 20:2 182 71:17 3350 2:16 102.112. 801 2:11 183 71:17 72:18 34 10:23 11:10,11 102.141 16:11 8th 62:11 36:11 1926 2:24 350 3:7 9 102.168 27:9,14 1st 74:23 3:00 31:25 47:18 32:14 49:18 2 52:20 57:4 9 55:16 60:1 10271 2:14 2 1:24 17:14 57:4 4 98101-3099 3:4 10:00 50:25 51:13 20 14:25 9:00 1:18 4:2 66:21 4 59:22 68:8,19 66:21 200 2:4 3:20 4100 2:4 21:4 9th 62:11 10:56 201 1:19 450 3:11 62:4 a 10:59 2018 1:17 19:7 4900 3:4 51:1 55:17 60:2 11 79:18 4a 16:15,15 a.m. 1:18,18 4:2 115 2:20 203 2:21 5 7:10,12 56:17 11:00 33:25 205 70:19,22 71:7 78:25 36:11 11:03 62:4 71:10,17 72:1,18 5 17:4,4 20:2 aaron 2:6 11:15 39:9 76:2 78:10 59:22 ability 10:11 19:15 11th 1:1 22 71:18 72:17 500 3:19 able 14:6 15:17 12 2:11 4:24 19:2 2250 1:24 515 2:7 24:15,21 69:16 7:20 78:2 40:9 57:17,18 23 71:18 5:00 absence 75:7 120 2:13 24/7 56:20 6 absentee 7:19 53:7 1201 3:3 25 15:7 21:21 23:6 6 7:10 34:15 35:15 59:25 61:3 62:25 12685 79:20 23:16 25:8,11 50:2 56:17 73:18 74:10 75:1,1 12:00 33:19 31:24 34:2,6 38:14 6,873 61:19 75:10 13 19:25 21:25 22:3 39:12,15 40:2 45:3 60,000 6:14 absentees 62:22 22:5,9 31:23,24 45:21,24 47:5,15 6:30 63:8 absolutely 14:18 32:1 33:17 34:2,13 78:17 6th 1:19 61:7,18 33:6 35:23 35:14 40:2 47:15 26470 12:3,18 absurd 37:3 50:1 70:17 72:2 Veritext Legal Solutions 800-726-7007 305-376-8800

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abundance 6:12 admitted 5:7 47:4 answer 29:13 41:20 76:25 72:9 adversely 75:11 anthony 3:18 arguments 44:10 access 13:25 54:16 advice 39:13 40:6 anticipate 6:14 70:21 68:12 75:18 advise 71:3 anticipated 10:8 arrangement 14:2 accounting 41:14 advised 14:21 anticipation 5:22 aside 25:13 69:16 accuracy 7:16 22:18 38:14 7:10 72:19 accurately 5:21 affect 10:14 anybody 4:20 5:6 asked 29:9 33:7 acknowledgement afford 29:3 12:15 33:11 34:24 35:13 54:3 56:9 44:13 afternoon 7:9 50:15 52:1 68:11 59:10 61:6 62:9 acknowledging 24:18 33:25 60:21 anyways 71:14 76:1 25:24 63:10 69:1 apologize 46:4 asking 22:8 26:9 act 28:17 ago 55:18 52:13 54:19 57:15 59:6,6 action 21:12 79:16 agree 34:12 35:13 appeal 14:21 48:15 64:23 79:17 agreed 4:18 13:3 appealed 11:5 asks 67:14 actions 42:22 50:13 26:20 29:8 appeals 48:21 aspect 9:25 activity 40:1 agreement 14:4 74:23 asserting 43:7 add 18:24 agrees 77:7 appear 40:23 assessment 34:13 addition 8:20 14:1 agricultural 52:6 appearance 5:8 assist 45:4 additional 8:17 agriculture 52:11 appearances 2:1 asst 2:19,19,19,20 18:25 54:24 57:3 ahead 28:20 62:2 11:24 assume 51:4 67:19 65:16 65:21 appearing 12:1 assuming 23:25 address 20:15 aimed 7:12 17:24 64:9 49:15 66:23 67:11 air 10:10 application 46:8 asterisk 60:11,19 69:6 alexander 3:2 applies 15:2 attachment 15:17 addressed 55:16 aliette 2:3 appreciate 65:24 attempt 7:20 addresses 7:25 9:8 alike 32:11 66:4 68:17 attention 11:15 9:10 allow 22:19 23:17 approach 11:18 attorney 2:19,19,20 addressing 5:11 39:2 46:22 77:10 14:18 21:17 58:13 2:20 4:13 5:14 adequate 27:14,18 allowed 26:22 31:7 appropriate 37:7 35:14 46:17 79:14 28:10,14,18 38:18 40:23 46:21 37:12 47:8 79:16 38:24 49:18 50:15 allowing 40:25 approved 17:25 audience 50:24 52:22 69:2 74:4 75:19 approximately 51:7,11 adhere 44:23 allows 19:14 21:10 5:23 6:14 13:12 authorized 79:8 adhered 23:2,5 77:23 areas 53:5 available 13:13 28:17 45:9 46:11 almeita 2:3 argue 5:8 30:3,7 avenue 2:20 3:3 adheres 45:2 alterius 19:11 33:11 41:1 42:8 avoid 27:21 41:24 administrative american 37:15 arguing 39:16 aware 11:4 56:13 37:22 andrew 2:19 38:9 argument 29:6,15 aye 3:17 12:5 40:14 administrators andrews 2:20 30:11 40:22 52:5 43:16,19 36:5 37:10 42:11 andron 2:19 38:11 68:12 70:25 73:22 42:16,22 77:13 73:23,23 74:2

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App.119 [b - canvassing] Page 82

b basic 53:5 34:1 38:10,14 40:5 brunt 42:5 basically 59:13 45:22,24 47:7 71:4 bryan 2:3 b 16:23 74:24 71:16,16 73:9 bso 38:10 back 13:19 14:2,4,9 basis 4:22 8:15 76:11 77:16,25 buckner 2:16 14:13 15:14 20:24 9:13 35:16 36:23 78:13 bunch 54:11 27:17 28:18 30:4 49:9 board's 77:18 buser 2:10 52:25 53:13 56:2 bay 31:4 boardman 36:20 business 4:16 63:11 65:7 68:7 beach 2:7 41:17 49:6 74:9,9 busy 69:13,14 69:3,7 74:22 76:21 bearing 42:5 74:22 button 62:9 bad 74:11,15 behalf 16:3 30:13 boulevard 3:7,11 ballot 7:1 8:17 17:8 34:11 35:2 40:14 bowen 2:4 17:24 18:10 19:3,8 c 1:7 18:5 43:14,15 45:13 boxes 58:21,23 21:25 37:9 38:15 cabinet 32:24 47:2 52:10 78:22 39:12 40:2 41:10 calculation 34:17 believe 10:22 16:7 breach 28:20 41:12 51:13 59:25 caldwell 3:9 13:9 19:25 28:13 29:17 break 11:13 51:9 61:3 62:22,25 63:3 52:10,11 57:11 37:12 38:21 42:14 52:1 73:17,18 75:1,2,12 california 15:13 46:6,9 47:6 51:15 breakdown 71:10 75:14,15 77:9 call 10:24 13:19 59:15 71:17 76:23 71:12 ballots 5:19 6:19 14:2,4,9,13 67:10 believes 77:25 breaking 61:12 8:7,14 9:12 16:5,6 67:21 68:18,25 benson 25:22 breathtaking 36:6 16:18,20 17:3,14 72:15 best 22:3 56:25 brenda 1:7 3:13 17:15,16 19:16,17 called 55:4 77:24 betsy 25:22 53:23 19:19,21 21:14,21 campaign 3:1 35:3 better 43:6 69:24 brennan 2:13 12:6 23:6,16,22 24:1,17 35:9,10,19 52:10 bifocals 44:3 40:20 24:20 25:9,12,13 77:3 big 9:4 brief 29:23 37:1 25:18 27:15 28:19 campbell 2:10 bill 3:1 21:5 35:2,9 40:22 41:2,3 56:3 31:16,23 37:4 candidate 17:19,21 binder 16:7 19:2 62:21 70:15 41:11 42:11 43:1 55:7 biscayne 1:23,24 briefly 36:7 38:9 45:3,5,18,21,22 candidate's 6:21 2:4 46:1 46:23 47:16,24 candidates 7:1 bit 15:10 74:2 briefs 49:4 48:3 49:20 50:1,3 32:11 42:25 black 18:22 bring 4:22 5:4 53:8 61:5,6,8,9,10 canvassed 10:2 blaming 69:14 13:18 76:21 61:15 63:12 64:4 16:19,21 17:15 blvd 1:24 2:4 brinkman 48:20 66:14 70:17,19,22 25:13 40:9 71:15 board 1:9 5:17,21 broad 59:5 71:7,10,13,15,17 canvassing 1:9 7:2 8:24 9:6,7,11 broadway 2:13 73:12,14 74:10,11 5:17,21 7:2 8:24 9:21 10:11 12:22 brought 4:22,24 74:11,13,15,15,16 9:6,7,11,20 10:11 16:12,24 17:5 18:6 5:10 32:16 54:4,5 75:17 77:12 12:22 16:11,24 20:16,19 22:21 broward 1:1,8,9,19 banker 78:22 17:5,13 18:6 20:16 25:10,12,14,16 2:18 9:11 22:22 bar 17:12 20:19 22:21 25:10 26:10 30:14 31:21 30:14 36:2 37:17 based 10:16 34:19 25:12 26:10 30:13 32:19,21 33:20,21 38:6 64:15 67:15 31:21 32:19,21,23 Veritext Legal Solutions 800-726-7007 305-376-8800

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App.126 [hypothetically - justice] Page 89

hypothetically 8:13 independent 6:25 42:25 43:7,9 45:7 39:22 40:2,6 48:22 indicated 5:1 47:10 50:21 63:7 65:8 indication 7:5,16 interested 31:11,12 66:24 68:13 71:20 idea 64:20,23 41:9 40:17 59:2 79:17 76:14,21,22 identical 20:20 indispensable interfere 52:4 issued 47:25 identifiable 25:19 32:15 interference 48:19 issues 4:13 13:4,5,8 identification 77:7 individual 55:1,1 interfering 70:4,5 22:1 24:8 29:4,22 identify 37:13 individuals 25:23 77:16 39:4 44:10 46:24 identity 6:22 32:4 33:18 55:15 interim 36:5,11 65:16 67:11 75:24 ignored 20:10 55:19,24 77:24 37:11 issuing 10:7 illegal 27:11 49:22 information 54:3,3 interject 30:25 75:20 77:5,5,24 J 57:16 59:25 61:3,6 interpretation immediate 59:9 j 2:9 3:2 initial 19:22 20:20 29:16 41:16,21 impact 5:14 8:11 jack 1:14 3:23 79:9 20:24 24:2 50:17 9:10,12 10:10,18 jarone 2:20 38:11 injunction 34:9 interruption 39:3 11:20 Jeff 2:6 36:2,8 37:19 38:21 intervene 40:25 impacts 9:4 joanne 3:17 12:5 48:2,21 49:13,17 67:15 implies 19:11 30:24 40:14 43:15,19 injunctions 49:15 intervened 12:17 important 20:15 job 25:24 41:24 injunctive 5:25 intervenor 2:8 38:22 70:3,16 joe 2:20 38:11 16:4 25:1 27:19 12:19 40:15 importantly 23:18 john 3:18 28:10,11 31:16 intervenors 12:4 impossible 74:14 judge 4:15 7:17 33:4,5,15 35:6 38:4 68:24 impression 59:22 11:8 13:10 25:21 43:11 45:17 50:19 intervention 4:23 improper 21:11 25:22 29:12 30:8 73:21,25 75:25 65:1 50:13 30:22 31:2,11,22 injury 44:24 introduce 57:11 incentivizing 42:10 32:8,9,14 33:6 inspection 22:22 invalid 45:24,25 inclined 45:16 43:13 46:1 47:11 instance 30:17 73:5,8 75:15 76:14 52:3 54:22 55:16 42:13 invoked 41:8 include 17:13 55:25 58:5,9,20 instincts 30:9 involved 24:24 34:20 35:20 72:4 60:3 63:24 65:17 instruction 36:24 48:11,12 72:25 65:20 66:5,15 instructions 49:11 involving 14:25 included 8:3 20:21 67:16 72:14 78:2 integrity 22:6 23:4 irregularities 74:25 30:15 34:23 judging 33:3 28:15 31:11,12 irregularity 75:11 including 20:6 40:2 judicial 1:1 17:21 44:9 75:12 irrelevant 58:7 inclusion 19:11 39:3 48:18 64:25 intend 22:19 77:17 irreparable 37:14 inclusive 79:11 jurisdiction 1:2 intended 36:16 37:18 44:20,24 incompetency 31:4 intent 6:23 8:19 45:7 46:9 64:15 justice 2:13 12:7 33:16 39:24 40:4 issuance 48:24 inconsistent 31:4 40:20 intentional 75:8 issue 21:15,22 24:3 inconvenience interest 29:18,20 24:4 27:21,23 29:5 15:10 37:20,24 38:2 29:9 30:7 39:5,20

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App.127 Page 90 [k - manual] 53:25 54:12 k tarry 2:23 67:16 52:9,9,13,15,16 41:17 las 3:7,11 54:18 55:4 56:6,24 61:14 k 3:6,14 lastly 8:22 57:3,9,15 58:1,3,10 looked 58:6,23 keep 13:1 21:10 late 37:1 39:19 68:1 58:12,16,21,24 looking 10:19 47:24 52:2 57:16 lauderdale 1:20 59:10,24 60:4,7,8 58:10,25 65:1 67:11 72:6 2:11,21 3:8,12,16 61:1 62:1,3 63:23 looks 4:24 kelley 3:19 3:20 63:24 64:10,13 lose 32:4 kevin 3:2 35:2 law 18:22 27:14,19 65:3,22,23 66:23 lost 40:1 key 16:19 18:11,18 28:1,11,14,18 30:9 67:4,10,19 68:3 lot 13:1 29:22,22 44:10 30:23 31:6 33:9,9 69:4,12 70:8 73:2 53:20 55:2,3,8,23 kick 27:24 28:1 36:7,19 37:5,22 73:11,16 74:1,21 64:3 kicked 6:3,10 38:5 45:11,14 75:4,6 76:6,7,16,23 lynch 3:17 12:5 kind 6:20 12:16 47:11,13,14 48:9 78:21 40:14 43:16,19 kinds 23:21 49:20 48:11,24 49:18 lemieux's 13:9,11 m klauber 3:14 13:23 50:15 61:8,11,13 13:20 65:24 70:23 55:12 ma'am 13:7 62:19 71:14,23 lengthy 10:22 know 6:9 7:14 9:4 machine 5:15 6:2,6 73:16,18 74:4 leonard 3:6 9:15 11:17,19 6:10,13 7:8 24:14 75:10,18,20 77:20 lepore 48:15 12:17 23:7,13 25:8 26:18 61:4 70:5 lawful 36:15 37:5 lessons 41:18,21 25:8,9 27:22 28:23 machinery 5:18 43:1 77:7 letter 18:22 29:11 30:20 32:1,2 machines 5:20 laws 28:2 32:13 liberman 2:10 32:4,7 34:8 35:12 24:16 lawsuit 63:14 likelihood 36:9 44:5 45:9,22 51:19 madam 51:23 lawyer 4:16 51:4 46:7 54:8 55:10 56:21 mail 16:18,20,25 lawyers 4:12 5:7 limbo 68:2 60:7 62:21 63:4 17:1,1 19:3,8,16 11:24 12:1 14:4 line 13:22 65:13 64:10 67:10 68:13 61:5,9 63:7,9,12 29:22 56:4 63:25 66:17,17,18 70:11,11 71:8,9,9 66:7 69:2 70:2 lines 72:25 71:11,13 73:7 76:3 main 9:21,24 41:7 lays 32:14 list 55:3 69:12 78:3 41:10 leads 44:16 listen 29:19 67:6 knowing 28:16 maintain 67:8 league 2:8 4:24 75:22 45:10,15 maintained 31:13 12:4,10 40:15 little 31:1 58:7 74:2 knowledge 45:12 majority 54:25 leave 52:7 Hp 2:4 72:16 making 23:21 left 68:24,24 location 1:19 knows 33:14 54:10 31:12 40:17 42:6 legal 1:23 27:2,12 log 61:5 61:8 43:1 69:25 28:5 37:25 49:23 logged 61:19,24 krupnick 2:10 malfeasance 42:10 legally 40:18 42:25 64:2,17 malone 2:10 1 legislature 36:16 long 19:8 66:17 management 15:12 language 49:5 legitimate 56:23 70:25 77:22 16:16 12:25 lapse 26:22 lemieux 3:10 13:5 look 11:16,22 manner 49:2 76:1 large 79:7 14:1 15:19,20 15:11 19:1,23 manual 6:25 7:6,10 50:21 51:15,20 22:21 24:21 25:4,6 56:16,19 70:6 Veritext Legal Solutions 800-726-7007 305-376-8800

App.128 [manual - notion] Page 91

76:18,22 met 20:25 29:6 moment 13:2 53:5 negligence 45:13 map 32:14,14 38:22,24 46:7 48:2 53:9 57:10 60:8 75:8 margin 21:2 meyer 9:19 47:20 65:18 negligent 21:7 mark 6:21 meyers 2:19 5:15 monday 54:5 nelson 3:1 21:5 marked 19:5 42:2 9:10,18 10:18 11:2 morning 4:3 5:5,16 32:2,10 34:15 35:2 mary 2:16 66:24 38:8,9,10 40:11 7:11,12,24 10:6 35:9,15,19 50:3 material 54:24 47:23 48:6 62:21 11:6 14:11 15:11 73:20 77:2 65:12 62:24 71:2,3,11 30:8 33:18 35:1 net 30:17,18 40:3 matt 3:9 52:10,11 72:4,12,22 78:7,15 39:20 40:13 41:1 new 2:14,14 57:10 miami 1:24 2:5,17 47:3 49:5 56:3,17 newly 11:25 12:1 matter 16:8 18:19 michael 2:9,15 63:5 73:4,20 77:4 newspaper 5:14 23:6 25:2,4 26:5 12:13 77:23 7:15,17 50:17 28:20 42:8 43:13 microscope 44:5 motion 4:14,25 night 13:3,7 15:10 43:17 50:21 middle 62:7 16:1,4 26:20 35:3 21:4 37:1 39:20 matters 11:21 39:5 mike 12:7 40:13 36:8 38:7 52:17 53:15,25 54:10 48:8 71:20 miles 2:16 68:20,23 69:3,8,9 55:10,14 60:5 mcclenaghan 43:20 military 19:17 70:10,23 78:4 61:14 62:7,8 mccormick 2:6 61:10 motions 5:12 65:15 nikki 2:22 67:16 mea 23:9 mind 49:15 move 4:15 69:9 ninth 18:16 mean 9:3,3,6 43:4 minimum 9:20 moved 25:12 non 21:8 40:16 64:4 miniscule 24:22 moving 50:5 65:1 44:16 45:13 meaning 6:24 minute 5:3 25:16 multi 17:8 18:9 noon 5:23,24 13:14 60:22 26:1 39:16 47:1 multiple 23:11 17:11 20:3 34:5 means 54:15 52:12 60:1 61:21 myrna 2:12 12:6 40:9 54:25 55:15 meant 13:17 minutes 17:2 29:25 40:22 56:8,11,18 57:4 measure 17:8,24 44:1 n 58:6,8,15 59:5 65:5 78:1 65:10 69:6 76:15 18:1,3,10 mismatch 9:9 n 2:7 3:21 normally 26:15,16 mechanism 63:2 mismatched 7:25 name 6:21 12:12 north 3:19 media 55:2 8:15 9:11,13 names 55:7 notary 79:6 meet 19:16 28:9 missed 39:15 nancy 1:22 79:5,21 25:21 note 45:19 35:5 36:14 37:10 misstate narrow 21:2 42:6 noted 38:19 44:10 49:13 50:18 56:14 mistake 21:11 near 66:6 67:18 meetings 13:15 45:12 necessary 6:8 notes 79:12 members 32:24 mistakes 21:7 64:22 69:23 notice 68:5 69:2 mention 38:13 42:16 44:15 need 4:5,10 13:25 75:23 39:18 77:22 mix 74:18 14:10 24:25 29:11 ixed 71:19 noticed 75:23 76:5 mentioned 42:24 m 34:9 35:12,24 76:14 54:23 mode 48:23 42:19 44:5 45:14 notify 68:3 merely 21:12 modifications 48:1 51:6 52:1 58:8 notion 36:19 merits 36:10 44:11 60:12 64:11,13 70:4,24 44:17 46:7,7 72:10 Veritext Legal Solutions 800-726-7007 305-376-8800

App.129 [notwithstanding - percent] Page 92

notwithstanding 63:1,4,11 64:5,14 oppose 76:20 21:23,24,25 38:15 48:16 64:15,17 66:5,6 opposed 59:5 39:12 40:2 47:15 november 1:17 67:19 opposing 14:8 47:16 53:20 55:6 19:7 60:16,18,19 officer 72:20 opposition 21:5 61:13 79:10 61:18 79:18 officers 25:7 36:19 paid 51:18 nuance 10:24 offices 22:23 order 4:23 7:15,24 palm 2:7 number 9:15 27:11 official 24:23 26:3 8:16 9:2,22 10:4 papers 30:21 27:12 28:4 32:1 26:17 42:6 47:13 11:5,20 12:10 14:6 paragraph 60:14 39:1,3,5 47:18 officials 36:24 14:9,13 15:2 45:18 part 8:1,4 9:21 49:22,23 70:16 49:10 59:18 74:19 46:22 47:24 48:1 14:1 27:2 42:10 73:10 okay 4:9 5:4,24 50:9,12,14 52:18 54:9 73:24,25 numbered 79:10 6:16 7:4 12:12,15 54:4,6 57:6,25 58:1 particular 32:8 numbers 15:1 20:7 12:15,23 13:3 58:8 60:11,12,15 66:17 76:2 14:13 15:22 21:6 60:24 61:9 64:24 parties 4:18 7:1 numerous 36:25 23:8 24:7 27:1 65:9 67:9,13 70:13 23:17 25:7 27:4 37:23 29:24 48:6 50:5,19 70:17 72:10 73:1 32:15 37:24 40:4 nunc 14:11 50:21 51:24,25 77:3,23 78:1,9,17 40:24 47:10 48:12 3:12 60:20 68:24 0 52:2 59:21 60:10 ordered 7:6 14:16 5 60:11,25 64:20 18:2,18 65:12 70:6 79:14,15 o'clock 51:1 65:9,16 67:8 68:10 orders 5:2 15:1 partisan 40:16 object 7:1 69:25 72:25 75:22 organization 40:17 partner 13:23 objecting 33:24 77:21 outcome 39:6 party 3:5 22:24,25 objection 33:21,22 olas 3:7,11 outside 55:2 23:17 33:20,23 objectives 25:19 olin 2:15 12:7,9,13 overs 6:7,8,15 34:12 50:5 obligation 34:8 12:13,14 40:21 overseas 19:4,17 party's 34:18 observation 6:19 once 38:19 passion 48:11 observe 36:24 p one's 21:25 patently 37:3 49:10 p 3:14 ones 33:1 59:17 payer's 29:12 observers 6:18 p.a. 2:6 73:8,8 payers 29:1,3 obvious 27:8 p.m. 16:17 18:12 open 4:1,10 29:11 peace 67:12 obviously 9:23 18:16 20:2 21:4 40:6 63:12,17 64:7 peers 11:4 10:19 63:12 23:14 26:25 31:25 64:8 pending 13:8 48:9 occasions 29:7 53:17 56:15 60:18 opened 71:13,14 people 6:18 7:18 occur 7:6 71:4 60:19,24 61:9,20 opens 31:2,3 34:2,3 54:11 55:23 occurred 13:7 61:25 62:4,4,5 63:9 operative 60:15 56:17 57:21 64:13 25:25 45:8 64:2,8,18 65:12 opinion 10:22 28:2 66:7 69:13,15 70:7 occurs 72:6 pa 2:10 35:17 71:8 offered 45:5 packing 46:3 opportunities 74:5 percent 17:20,23 office 5:13 13:20 page 3:23 4:7 21:25 opportunity 9:22 17:25 23:3 47:8 17:8,19,21,22 18:2 21:25 31:23 47:16 10:1 66:1 18:9 53:3 56:2,4 pages 10:23 11:10 57:1 59:11 61:16 11:11,14,17 13:12 Veritext Legal Solutions 800-726-7007 305-376-8800

App.130 [perez - proposed] Page 93

perez 2:12 12:6 place 7:9 24:8 practical 39:1 problem 25:6,8 40:22 41:3 27:12 28:5 30:10 precinct 66:16,17 33:7 39:25 44:5 perfect 48:17 31:2 49:24 59:20 preclude 27:19 52:14 74:8 77:9 period 16:22 17:3 70:12 predict 68:15 procedural 4:12 56:3 placed 28:22 prejudice 60:20 21:8 44:16 45:13 permanent 37:18 plaintiff 1:5 2:2 prejudiced 54:2 procedurally 15:18 permit 73:21 35:4 36:9 37:13 prep 56:16 76:4 person 53:21 57:19 40:3 42:9 49:13,16 preparation 7:8 procedure 6:2,16 59:14 66:23 75:15 plaintiff's 43:5 prepare 69:17 21:9 personal 57:10 plan 7:7 72:12 78:9 procedures 4:5 62:18 plaza 3:15 prepared 7:11 proceed 16:23 personally 22:21 pleasure 60:9 67:17 69:21 44:23 25:11 plus 22:25 prescribed 20:17 proceeding 33:15 personnel 63:6 poignant 44:19 presence 75:7 33:20 persuaded 41:19 point 8:12 30:20 present 30:13 proceedings 1:12 pertains 35:14 32:8 36:18,25 preservation 73:1 1:21 4:1 68:20 40:24 41:4 42:23 preserve 50:3 process 6:5 8:16,19 pertinent 60:14 47:3 61:2 76:25 preserved 25:5 22:7 23:5 25:5 pettis 3:14,14 4:14 pointed 36:10 preserving 45:5 28:15,24 31:11 13:7,10,21 14:17 points 52:24 70:16 presumably 8:18 39:2 42:18 44:9,21 15:4,8 21:20,23 policy 42:9 48:18 39:15 61:4 62:8 45:2 46:10 47:6 22:10,13 26:20 political 49:2 presumption 47:13 48:19 63:11 66:4 29:7 30:8 31:10,20 poll 77:11 64:16 66:13 67:3 74:6 32:7,22 33:5 46:1,3 polls 17:2 63:16 pretty 9:4 12:24 75:13 47:1,2,19 50:6,7 77:6 38:11 56:20 processing 66:13 52:21 53:2,14 position 34:18 prevail 49:13 produce 52:19 53:3 54:22 55:13 58:2,3 35:20 41:15 42:9 prevent 27:23 70:7 produced 59:13 58:6,14,17,20 42:14 43:2,3 70:8 preventing 39:21 production 60:25 59:12 60:3,22 possessed 38:1 prevents 15:15 professional 79:5 61:23 62:12,14 possession 63:15 previous 47:12 79:22 65:11,19,22,24 64:18 66:11,22 54:23 profusely 29:9 68:6,10,17 69:4 possibly 28:23 primary 17:9 18:12 progress 49:1 52:4 72:7,14,23 post 16:5 19:4 18:14,19 20:3 26:3 prohibition 41:14 pettis's 34:12,17 27:21 38:18 46:24 38:3 41:22 46:16 prong 28:9 phone 29:7 48:4 66:5 71:6,22 principles 42:17 proper 19:9 30:10 phonetic 25:21 72:8 print 13:18 55:13 30:19 33:7 50:13 pick 63:7,8 66:10 potential 22:18 printer 55:9,9 properly 25:23 picked 63:15 69:24 24:20 72:2 prior 9:5 19:22 37:7,16,21 44:23 pile 5:4 potentially 10:24 privilege 57:10 77:14 pipe 62:12 pours 15:24 pro 5:1 14:11 40:23 proposed 38:3 58:1

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App.131 [protect - rendered] Page 94

protect 44:8 puts 34:14 rebuttal 30:1 referred 13:4 recall 47:14 refers 77:4 protecting 37:23 q receipt 27:11 49:20 reflect 17:18 protection 75:13 quackenbush 3:18 49:21 regard 16:3,8 75:18,20 question 10:25 receive 53:19 65:4 19:13,19 21:21 proven 15:24 29:5 33:8 35:11 received 16:7 19:6 27:21 29:15 44:11 provide 17:2 43:16 44:20 49:12 50:1 19:19 20:9 21:4 44:17 46:8 47:5 52:21 62:19,21 68:25 18:7 52:22 53:8,17 60:9 regards 19:17 provided 17:6 questioned 9:20 61:3,16 63:3,9,20 registered 37:7 21:19 58:4 66:9 quick 11:22 12:25 66:14 77:14 79:5,22 provides 19:14 quickly 7:23 10:5 recess 67:14 78:4 registration 77:10 36:11,14 quite 44:7 49:12 recognized 48:15 regular 50:22 provision 19:18 quote 25:10,17 20:14 recommend 25:17 reinforce 39:7 r provisional 7:19 reconsider 60:23 rejected 7:21 8:14 17:3 73:17 77:9,12 race 6:20 7:9 reconvene 57:4 9:13 17:25 33:22 provisionals 64:4 races 6:12,14 60:21 rejection 27:11 provisions 10:20 rains 15:24 record 4:6,10 12:15 28:4 49:22 27:9 41:5,8 42:2,3 raised 13:5 39:20 15:3 43:14,17 relates 21:15 68:6 public 5:25 13:8 raises 64:22 45:19 47:9 48:3 relative 79:13,15 29:18,19 37:19 raising 32:9 61:15 65:25 69:18 release 56:9 42:8 48:18 52:19 random 10:2 70:17 72:7 79:11 relief 5:25 16:4 53:13 54:17 56:22 read 5:13 7:14,15 records 6:1 13:8 25:1 26:8 27:19 57:20 65:4 75:24 8:23 10:5 16:13 52:20 53:13 54:17 28:10,11 31:16 78:20 79:6 25:11 29:22 30:22 56:23 57:3,21 65:4 33:4,6 35:6 36:1 pull 55:24 57:23 32:17 36:13 44:5 75:24 78:20 38:4 43:11 45:17 69:7 74:19 recount 5:15 6:6,8 50:19 73:21,25 pulling 55:5 reading 41:13 6:13 7:6,10 18:1,5 75:25 punishing 42:15 reads 50:16 18:18,21,22,23,24 rely 44:25 pure 29:14 ready 29:17 76:20 19:13,20 20:16,25 remain 31:17 38:16 purports 61:15 real 37:24 22:1 24:3,4,4,14 45:18 46:23 71:5 purpose 48:22 realistic 38:1 26:2,5,6,7,11,14,16 78:10,12 purposes 5:6 15:2 realize 23:11 26:18 46:17 54:12 remaining 57:7 71:6,25 really 33:17 39:13 54:13,14,21 70:5,6 remand 74:22 pursuant 52:19 53:19,20,22 59:8 70:12 72:5 76:16 remedy 27:14,18 push 62:9 66:1 76:17,18,22 28:11,14,18 33:9,9 put 4:10 26:2 30:21 reason 13:19 34:16 recounted 6:2 36:14,17 38:18,25 30:21 50:9 53:13 38:22 73:5 74:12 26:13 49:18 50:15 74:4,5 55:3 60:10 62:14 77:8 recounting 21:1 remember 31:22 63:2 64:13 65:13 reasons 38:6 39:1 24:5 remind 33:14 65:25 66:8 67:2 40:7 74:24 referencing 32:18 rendered 39:13 68:1 69:16

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App.132 [rene - scott] Page 95

rene 2:19 5:17 reset 67:20 reviewed 5:21 7:23 rule 34:20 74:13 38:10 resolve 27:24 76:4 8:16 21:20 22:23 78:2 repeat 37:2 38:12 resources 39:3 45:22 60:5 ruled 26:21 report 7:15 16:24 respect 18:2 27:7 reviewing 6:25 rules 43:8 46:11 31:25 51:12 61:4 42:24 57:19 65:20 rick 1:4 2:2 16:3 48:24 79:8 74:3 44:6,8 ruling 39:19 reporter 3:24 respected 25:23 rid 31:5 run 29:2 61:4 66:8 50:24,25 51:7,11 respectfully 42:18 right 8:5,21 12:23 66:10 51:14,17,21,23,25 respective 4:17 13:1 15:11,25 22:9 running 38:16 79:6,22 respond 27:3 40:12 23:13 26:5 27:14 56:20 reporter's 79:1 44:1 33:6,16,25 36:3,16 ryan 2:9 4:23 11:8 reporting 7:17 responded 29:14 43:6 46:18,19,20 11:11,14,18 12:2,3 36:12 response 21:5 47:22 48:16,17 12:18,21 13:2 representation 44:14 53:7 61:2 50:23 51:2 52:14 40:13,14 43:13,21 35:18 65:4 53:4 60:16 62:23 43:24 52:3 republican 22:24 responsibilities 64:2,9,20,22 67:12 6 76:13 22:25 23:16 49:6 8:2,7,22 s 2:4,15,20 3:10 republicans 32:11 responsibility 77:17,20 78:4 safeguards 24:8 r 37:23 request 6:1 28:9,11 48:10 ights samuels 3:6 33:12 36:6 49:17 50:19 responsive 52:23 ripe 29:4 33:13 34:10,16,23 52:20,24 53:7,13 52:23 53:22 road 27:24 28:1 34:24 35:13 39:8 53:18 54:17 55:3 rest 13:13 56:11 32:14,14 sanctity 45:10 56:23 57:21 62:9 59:17 65:11 72:10 rods 2:3 75:12 11:3 13:4 65:4 73:13,21 restraining 48:22 rodz 4:8 saturday 7:20 75:25 78:20 result 27:13 28:6 14:20,23 15:18,23 10:17 24:11,12,16 requested 36:1 37:3 49:24 15:25 16:2,10 33:18 39:9 41:11 22:5 requests 5:25 10:9 resulting 37:14 21:16,19,24 saw 44:14 23:24 require 25:1 45:18 results 16:17 20:12 22:11,17 saying 9:6 10:16,21 46:22 52:18 24:10 25:14 26:17 24:11,13 25:2 15:23 23:25,25 required 17:14 33:19 34:4,4 39:11 26:11,19 27:6,20 31:10 57:19 63:15 29:24 30:2 28:22 36:8,22 retained 17:22,22 28:7,13 78:12 39:23 45:11 46:13 retention 17:21 30:5,20 40:12 says 16:21,23 17:1 48:1 49:8 74:15 return 13:2 18:10 43:25 44:2,6 46:2,5 17:10,16 18:6,16 78:6 requirement 16:5 18:11,13 20:20 50:11 70:23 28:2,2 41:12 50:14 40:8 24:2 26:6 36:12 78:16 60:20 74:12 requirements returns 10:13 17:6 rolling 56:9 scheduling 4:13 23:10 49:14,16 75:10 17:13,18 18:8 20:1 room 2:21 scheme 63:13 requires 28:17 20:2,7,8,10,18 46:18 62:6 schwamm 3:14 23:11 requiring 78:9 review 4:17 65:6,14 rooms scott 1:4 2:2,19 reserve 29:24 30:1 65:16 69:5 rpr 1:22 12:20,21 16:3 32:1 72:1 32:24 34:15 35:15 Veritext Legal Solutions 800-726-7007 305-376-8800

App.133 [scott - state] Page 96

38:11 44:6,8 50:2 71:1,5 72:7 78:11 signed 5:5 25:20 sounds 49:23 54:14 se 1:19 78:13,17 64:24 75:25 77:1 search 53:14 55:3 senate 35:3,10 44:6 significant 45:7 south 1:24 56:7 59:5,9 44:8 signing 15:1 southeast 2:11 searches 54:13 senator 32:9 50:2 silent 36:18 speak 13:6 26:17 55:5 73:20 similar 19:18 speaking 35:7 43:8 seat 4:4 send 15:13,16 simply 29:6 36:4 specific 59:8 seated 4:4 57:20 72:10 77:17 37:21 50:14,18 specifically 19:13 seattle .3:4 sending 59:16,16 simpson 12:8 40:21 49:6 54:18,19 second 4:5 8:1,3,23 senior 59:13,18 single 46:17 57:24 59:3 10:12 12:10 18:3,7 sense 37:25 singular 12:19 specified 20:9 18:13,20 20:18 sent 26:17 34:5,21 sir 41:3 51:18,20 spoke 26:20 30:19 23:20 26:4,5 28:9 sentence 13:22 57:13 60:17,25 53:2 63:6 37:13 50:22 53:9 separated 6:6 62:1,23,24 65:23 spoken 11:4 56:14 72:5,5 71:20 73:7 72:4 squeeze 39:12 secondly 46:9 separately 25:18 sit 12:14 15:19,21 ss 79:3 47:11 server 15:13 62:17 staff 45:153:11,11 seconds 47:21 set 6:17 18:7 20:18 sitting 28:16 66:7 53:19 59:11,13 secretary 7:5 8:10 25:13 72:19 six 32:1,2 69:13 69:11,11 10:14 24:17 26:18 seven 6:12,13 32:1 slama 2:10 stage 31:19 35:21 70:13 76:3 69:13 sle 44:12 stake 28:15 29:18 section 16:15,15,23 seventh 3:15 20:3 slid 23:13,22 stamp 63:2,10 17:4,4,17,17 18:5 share 43:9 small 9:12 53:15 66:20 20:15 27:10 49:18 shorthand 79:9 smith 1:22 79:5,21 stamps 62:3 see 13:17 15:17 show 24:17,24 40:3 snipes 1:7 3:13 stand 40:14 51:11 19:25 50:5,22 46:10,19 58:2 23:9 30:14 32:16 62:12,15,15 64:14 54:20 55:17 57:5,5 60:23 64:2 47:3,4,7 53:24 standard 42:24 58:14 59:17 68:9 showed 37:6 77:6 soe 12:21 standards 35:5 68:14,21 showing 24:20 software 57:22 67:8 seeing 15:15 shown 39:24 solely 1:7 7:25 standing 33:21,22 seek 26:9 shows 62:20 66:10 36:23 49:9 50:11 66:16 seeking 22:17 44:8 shutts 2:4 solutions 1:23 standpoint 65:2 seen 14:3 side 56:25 72:11 somebody 25:3 73:17 segregate 28:18 sides 56:22 31:9 39:21 64:21 stands 36:19 38:4 47:17 72:1 sign 5:2 14:10 66:16 67:14 78:5 stark 38:4 segregated 6:4,8 signature 8:7 9:13 soon 51:9 54:15,20 start 5:11 7:13 22:14,20 26:1 39:22 78:1 79:20 65:13 72:15,20 23:21 56:10,16 31:21 38:15,17 signatures 7:19,21 sophisticated 57:21 59:12,20 66:13 45:4,18,19 46:23 7:25 8:12,15,25 9:5 sorry 25:21 34:4 starting 51:7 56:15 47:15,24 48:4 9:5,21 10:21 54:22 68:18 77:21 state 7:5 8:10 10:25 63:21 70:18,20 L 17:7,818:8,920:1

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App.134 [state - testifying] Page 97

20:5,8 23:4 24:18 stopped 42:13 24:9 25:18 26:10 tactic 33:23 26:18 31:2 34:5,22 stray 75:23 30:15 31:5 32:17 taint 44:21 45:8 35:22 42:17 44:15 street 1:19 2:11,16 34:14,19,20 35:20 take 6:12 7:8 11:12 45:6 46:11 66:16 2:24 39:10 44:22,25 12:25 14:10 15:25 76:3 79:2,6 strong 36:9 48:18 45:10,20 46:12 16:6,14 17:4,17 state's 10:15 strongly 37:22 48:3 49:25 52:18 19:24 42:9 43:3 stated 16:13 30:12 stuff 46:4 55:4,8,14 53:3,10,19 56:4 45:10 46:10 50:8 30:20 31:21 45:20 55:15 56:8,11 59:13,15 61:16 52:1 68:23 70:12 66:4,23,24 69:15 sub 36:11 63:1,14 64:7,14 75:24 76:14,21 states 17:4,18 19:3 subject 6:13 66:12,15,22 72:1 taken 1:17,21 30:9 19:24 20:8 21:13 submission 19:25 72:13 talk 30:16 50:13 23:19 37:8 49:7,18 20:21 supervisor's 4:13 53:5,8 60:1,8 69:15 statewide 17:7 18:9 submit 17:5 18:6 35:13 39:14 59:11 78:21 status 31:16 77:10 42:19 64:5 69:11 • talked 69:21 statute 16:11,13 submitted 8:1 20:7 supervisors 59:19 talking 17:9 30:17 19:2,12,24 21:9 20:18 37:4 54:25 supposed 39:1 41:9 31:14 32:2 55:19 23:2,5,19 27:7 subsection 17:14 supreme 16:12 58:25 59:25 62:23 28:16,21,23 29:10 20:17 36:20 37:25 64:19 29:16 30:19 32:18 substantial 75:9 sure 4:8 8:5 14:25 talks 32:15,18,22 36:11,13,17,21 substantially 52:23 15:16 21:18 24:13 74:10 38:19,25 40:8 success 36:10 44:11 30:2 31:12 32:6 tallahassee 7:17 41:23 44:24 45:1,9 44:17 46:7 33:3 34:3 38:17 10:7 25:15 39:11 46:8,14,19 49:7,14 succinctly 28:22 40:18 43:1,22 tallied 24:17 statutes 30:12 sue 33:2 51:16 59:4 65:1 tally 34:21 statutory 10:20 sued 32:24 68:13 69:2 72:18 tax 29:1,3,12 16:5 36:24 38:25 suffer 37:18 78:7 telephone 4:11 41:4,7,15,20 43:8 sufficient 27:12 suspicious 71:9 12:16 49:11 28:5 49:24 swears 64:22 telephonic 52:17 stay 10:9 55:10,11 suggest 66:20 system 15:12 16:16 tell 13:1 28:8,19 68:20,23 69:8,9 69:18 76:7 26:2 31:13 38:16 29:11 35:12,24 70:4 suggesting 66:3 48:17 51:3 46:18 stayed 55:13 67:1 76:19 t telling 26:15 49:5 55:23 68:11 staying 62:6 suit 32:20 tab 16:10 19:2,24 1:24 2:4,7,11 temporary 38:21 stenographic 79:12 suite 20:15 tenable 43:2 stenographically 2:14 3:4,7,11,20 table 53:4 56:18 57:16 term 18:22 79:8 sunday tables 6:17 terms 38:1 53:12 stick 26:24 62:18 69:14 tabulate 63:17 1:8 6:17 53:12,14,17 62:19 supervisor tabulated 16:20,21 16:15 testify 64:14 stop 34:2 54:11 7:4 10:11 16:25 17:1,15 20:11,22 testifying 63:25 58:19 62:16 76:12 19:14 tabulation 6:6 21:6 22:22 23:18

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App.135 [text - valid] Page 98

text 53:10 55:21 thrown 74:17 transfer 4:14,18 unanimously 25:17 59:10 thursday 1:17 transferred 4:20 unconstitutional texts 53:23 55:20 24:10 60:16,18,19 transmission 13:15 8:24 9:25 37:4 57:20 59:16 tie 41:23 72:6 unders 6:7,7 thacher 12:8 40:21 time 1:18 4:11 transmit 39:11 understand 11:4,5 thank 9:18 11:2,7 11:22 13:14 17:3 transmitted 13:13 70:8 21:24 30:5,6 34:24 20:9,12,25 21:12 transparency 65:2 understanding 38:8 40:10,11,24 26:22,23 27:5 29:3 68:14 7:24 10:4 30:9 63:6 43:12,24 44:2 29:12 30:18 32:13 transposition 20:6 71:13 46:25 47:19 48:6 42:12 45:3 47:3 tried 7:22 55:9 undisputed 27:22 52:7 57:13 65:3 53:2 55:10,16,21 triggered 55:3 unequivocal 46:14 78:15,23 56:3,8,11 60:24 true 15:24 61:23 unfortunately thing 15:9 19:11 62:3 63:3,9,10 65:6 64:3 68:22 70:19 46:24 71:19 39:7,18 54:1 59:3 65:13 70:10 76:9 79:11 unidentifiable 70:4 77:11 truly 60:23 74:16 things 4:6,9 5:11 timely 20:23 37:4 try 7:20 28:18,19 united 37:8 5:12,13 10:9 32:25 69:22 28:24 39:11 55.:13 unius 19:10 38:13 41:14 46:6 timing 56:13 67:11 unnecessarily 29:2 48:7 50:10 59:1 tischenko 3:2 trying 15:14 27:20 unofficial 8:1,3 61:22 64:7 66:11 today 5:23,24 8:2 30:24 31:5 46:5 10:13 17:6,18 18:4 71:8,9 10:13 13:3 14:22 53:16,25 56:25 18:8,13,20 20:18 think 9:24 10:18,23 23:7 31:25 34:14 tunc 14:11 20:20 24:2,10,23 10:24 11:14 12:16 34:22 35:22 39:17 turn 18:5 40:22 25:14 26:4,4 34:4 13:3,12,21 14:5 45:2 47:18 48:9 tuter 1:14 3:23 36:5,12 56:14 27:2 30:17 31:8 51:4,6 54:20 56:15 29:12 79:9 unpopular 43:5 33:2 38:23 39:9 59:5 60:16,24 twelfth 20:4 unsubstantiated 40:7 41:5 55:22 64:24 65:5,10,12 two 4:9,11 6:25 23:21 58:7,17 67:18,24 67:15,18,25 70:3 11:14,16 12:2 untenable 41:15 69:22,23,24 70:3 70:11 72:6 76:3,5 19:16 29:7 32:24 update 13:6,14 70:24 76:15,15 39:3 41:7,24 43:14 54:23 72:16 third 3:3 50:18 told 50:1 57:16 45:23,25 53:5 upload 16:16 53:11 59:12 66:22 55:18 56:3 59:4 ups 63:8 thought 4:22 9:24 tolerated 43:3 60:12 61:21 70:15 utilize 30:12 46:3 59:21 73:9 tomorrow 7:11 72:25 utterly 36:18 thousand 61:13 56:17 67:20 68:2 typographical 20:6 uustal 3:18,19 14:5 thousands 23:22,22 68:25 69:20,23 u 14:14 70:14,15,24 78:19 64:19 66:13 top 25:11 ultimate 10:25 38:2 72:5 three 11:12 49:16 total 71:21 ultimately 32:25 1:23 60:13 78:22 tower unable 20:16,22,23 v 36:20 7:12 throwing 74:10 trained unacceptable 42:5 valid 8:12 40:4 61:12 71:18,18 Veritext Legal Solutions 800-726-7007 305-376-8800

App.136 [valid - zellman] Page 99

73:6,8,14 75:14,17 31:22 33:22 34:6 waste 29:11 world 73:18 75:21 34:13,21 35:14 way 9:5 14:12 written 38:25 57:6 validity 75:1 37:14 39:5,17 40:5 15:13 22:24 35:17 70:9 variables 70:14 40:9 42:7 49:22,23 38:25 42:1,20,20 wrong 46:20 47:5 various 6:18 47:10 61:17,19,19 63:18 78:3 50:18 66:1,3 48:12 64:19 66:3 67:2 ways 49:19,21 wrongdoing 75:8 vast 54:25 71:18,18 72:17,23 we've 47:15 54:3 wrongly 67:2 verification 10:20 73:4,5,6,6 75:20,21 56:3 57:15 59:10 x 62:4 66:8 67:15 77:10 76:2,12 77:5,5,18 3:21 verified 8:6 78:9 70:16 75:22 verify 7:20 34:11 voting 16:18,22,24 weakness 27:2 y veritext 1:23 25:4 44:9 48:17 wednesday 24:10 yesterday 5:8 versus 12:2148:15 71:11 74:6 75:10 54:6 15:12 52:16 55:25 48:20 49:6 75:19 week 47:12 69:24 58:4,7,9,15 63:6 vice 5:2 vs 1:6 weekend 67:10 66:9,22 67:22 viewed 43:10 w weighing 43:11 68:17 69:10,16 58:16,18 welcome 57:13 york 2:14,14 violated wa 3:4 went 22:21 32:9,10 z vote 10:15 16:18,25 wait 5:3 25:15 44:19 52:25 53:13 17:1 19:3,8 30:17 30:24 61:21 68:3 zellman 56:1 32:4 36:4 37:15,21 53:14 56:2 61:13 70:9 48:16 71:15 39:21 40:18 walk 72:21 66:19 west 2:7 61:12 64:8 walking 57:19 74:20 wexler 48:15 66:19 71:21 want 5:10 11:19 wide 24:19 75:19 77:8,11 13:25 15:19 16:6 25:16 william 2:6 voted 6:20 27:4 28:3 29:11 winded 77:22 voter 6:21 8:19 30:16 32:12 33:11 window 59:4 19:4 40:18 47:9 48:9 50:12 8:6 12:4 winning 50:5 voters 2:8 51:19 52:4 57:11 wish 4:20 11:9 57:6 23:3 28:19 33:16 57:24 59:8 60:6,8 wished 56:6 36:3,15,21 37:5,16 62:15 65:7,16 66:6 38:1,6 40:15 wishes 77:19 78:13 37:20 68:13,15,25 69:7 1:22,24 42:3,5,15 witnesses 69:20,21 4 69:18 70:7 71:8 women 2:8 12:4 42:21 43:1 44:7,22 72:18 76:5 78:7,22 46:11 40:15 44:25 45:14 wanted 5:2 41:4 77:6,8 words 50:8 49:7 75:17 53:6,6,9,12 54:13 work 38:5 39:10 77:24 61:1 66:25 77:22 41:25 56:18 69:4 votes 6:3,3,10,10 wanting 69:15 17:20 worked 52:21 10:2 16:25 wants 30:3,7 42:14 working 13:24 18:1,2,23 22:4,5,9 62:12 65:15 68:4 15:14 54:8,12 23:1 27:11,12,16 69:6 28:5 30:16 31:5,13

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App.137 Filing # 80923077 E-Filed 11/16/2018 02:03:10 PM

IN THE CIRCUIT COURT OF THE 17111 JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY,FLORIDA

RICK SCOTT FOR FLORIDA, CASE NO. CACE 18-026470

Plaintiff, JUDGE Jack Tuter

vs.

BRENDA C. SNIPES, solely in her capacity as Supervisor of Elections of Broward County, Florida, and the BROWARD COUNTY CANVASSING BOARD,

Defendant.

NOTICE OF FILING DEMONSTRATIVE AID

Plaintiff, RICK SCOTT FOR FLORIDA,through counsel, hereby gives notice of filing

the demonstrative aid which depicts the 25 ballots that were inspected together with the Broward

County Supervisor of Election's legal counsel and was distributed at the November 15, 2018,

hearing on Plaintiff's Emergency Motion for a Temporary Injunction and Supporting

Memorandum of Law. The document has been redacted to protect the respective ballots'

identifications.

Dated: November 16, 2018

Respectfully submitted,

/s/Aliette D. Rodz Aliette D. Rodz, Esq. Florida Bar No. 0173592 Email: arodz hutts.corn 200 S. Biscayne Blvd., Suite 4100 Miami, FL 33131 Office:(305) 347-7342 Facsimile:(305) 347-7742

App.138 Notice ofFiling Demonstrative Aid CACE 18-026470

-and-

Attorneysfor Plaintiff

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was served via E-

Portal Electronic Filing and via e-mail this 16th day of November, 2018, to the following:

Anthony H. Quackenbush, Esq. Mitchell W. Berger, Esq. Email: [email protected]; Email: mbergerAbergersingerman.com; John J. Uustal, Esq. Leonard K. Samuels, Esq. Email: [email protected]; Email: [email protected]; Michael A. Hersh, Esq. Andrew Bryan Zelmanowitz, Esq. Email: [email protected]; Email: [email protected]; Catherine C. Darlson, Esq. Berger Singerman, LLP Email: [email protected]; Fort Lauderdale Office Todd R. Falzon, Esq. 350 East Las Olas Boulevard Email: [email protected];. Suite 1000 Kelley/Uustal Fort Lauderdale, FL 33301 500 N Federal Highway Suite 200 Phone:(954) 525-9900 Fort Lauderdale, FL 33301 Fax:(954) 523-2872 Telephone:(954) 522-6601

App.139 Notice ofFiling Demonstrative Aid CACE 18-026470

Eugene K. Pettis, Esq. Burnadette Norris-Weeks, Esq. Email: [email protected] Email: bnorrisAbnwlegal.com Debra P. Klauber, Esq. Austin Pamies Norris Weeks LLC Email: dklauberAhpslegal.corn 401 North Avenue of the Arts Haliczer Pettis & Schamm,PA (NW 7th Avenue) One Financial Plaza, Fort Lauderdale, Florida 33311 100 SE 3rd Avenue, Phone:(954) 768-9770 Seventh Floor, Fort Lauderdale, FL 33394 Phone:(954) 523-9922

Andrew Meyers, Esq. George S. LeMieux, Esq. Email: [email protected]; Email: [email protected]: Rene Harod, Esq. Michael W. Marcil, Esq. Email: [email protected]; Email: [email protected]; Annika Ashton, Esq. Heather C. Costanzo, Esq Email: [email protected]; Email: [email protected]; Scott Andron, Esq. Jacqueline DerOvanesian, Esq Email: [email protected]; Email: JDerOvanesianggunster.com Joseph Jarone, Esq. Gunster Law Firm Email: [email protected]: 450 East Las Olas Boulevard Broward County Attorney's Office Suite 1400 Office of the County Attorney Ft. Lauderdale, FL 33301-4206 Governmental Center, Suite 423 Phone:(800) 330-1980 Fort Lauderdale, FL 33301-1818 United States Phone:(954) 357-7600

Benedict Kuehne, Esq. Joel Perwin, Esq. Email: [email protected] Email: [email protected]; Larry S. Davis, Esq. Joel S. Perwin, P.A. Email: larryalarrysdavislaw.com; 169 E. Flagler St. Michael T. Davis, Esq. Alfred I. DuPont Building Email: [email protected]: Suite 1422 Shana J. Korda, Esq. Miami, FL 33131-1212 Email: [email protected]; Phone:(305) 779-6090 Mathew T. Hatfield, Esq. Email: [email protected]; Law Offices of Benedict P. Kuehne, P.A. 100 S.E. Second Street Suite 3550 Miami, Florida 33131 Phone:(786) 369-0213

App.140 Notice ofFiling Demonstrative Aid CACE 18-026470

Michael S. Olin, Esq. Michael J. Ryan, Esq. Email: [email protected] Email: [email protected] BUCKNER + MILES Krupnick Campbell Malone Buser Slama 3350 Mary Street Hancock Liberman P.A. Miami, Florida 33133 12 S.E. 7 Street, Suite 801 Phone:(305) 964-8003 Fort Lauderdale, FL 33301 Phone (954) 763-8181

Jonathan Youngwood, Esq. Kevin J. Hamilton, Esq. Email: [email protected] Email: KHamilton(Wperkinscoie.corn Isaac Rethy, Esq. Perkins Coie LLP Email: [email protected] 1201 Third Avenue Nihara Choudhri, Esq. Suite 4900 Email: [email protected] Seatlle, DC 981-3099 Joshua Polster, Esq. Phone:(206) 359-8741 Email: Joshua.polste(r&,stblaw.com Pro Hac Vice Simpson Thacher & Barlett, LLP 425 Lexington Avenue New York, NY 10017 Phone:(212) 455-3539 Pro Hac Vice

Jonathan Brater, Esq. Email: [email protected] Myrna Perez, Esq. Email: [email protected] The Brenan Center for Justice 120 Broadway New York, NY 10271 Phone:(646) 292-8373 Pro Hac Vice

/s/ Aliette D. Rodz Aliette D. Rodz

App.141 Inspection of 25 Ballots 11.12.2018 Case No. 18-026470

Cover page of 25 segregated ballots in handwriting stated:

"11.10.2018 1:30 pm"

"Canvassing board moved to have these ballots set aside because they were canvassed after unofficial results certified by Board of Tallahassee."

"The board voted unanimously to recommend to the supervisor that these ballots be held separately, so they are easily identifiable to those who objected."

"Canvasing who signed off: County Commissioner: Daphne Sanvif Judge: Betsy Benson Judge: Deborah Carpenter"

Ballot Pages Original Copy 1 p.5 0025U 002511

2 p.6 0025111 00251

3 p.1 0025M 002511 Rick Scott Ron DeSantis

4 p.1 0025111 002511 Bill Nelson Andrew Gillum

5 p.3 0025111 0025M

6 p.1 0025 0025M Bill Nelson Andrew Gillum

7 p.2 00251. 002511

8 p.3 002511 002511

9 p.3 0025M 002511

10 p.1 002511 002511 Bill Nelson Andrew Gillum

Page 1 of 3

App.142 11 p.4 0025111 002511

12 p.1 002511 002511 No stamp. valid just ripped at Handwritten. All corner others stamped. Rick Scott Ron DeSantis

13 p.1 002511 002511 Bill Nelson Handwritten Andrew Gillum

14 p.4 0025M 002511

15 p.5 002511 002511

16 p.5 002511 002511 Invalid ballot

17 p.6 002511 002511

18 p.3 002511 002511

19 p.1 002511 002511 Bill Nelson Andrew Gillum

20 p.1 002511 002511 Rick Scott invalid "yes" Ron DeSantis Matt Cadwell

21 p.1 002511 0025M Rick Scott All bubbles valid Ron DeSantis

22 p.1 0025. 0025 Rick Scott All "X" forward Ron DeSantis valid

23 p.1 002511 002511 Rick Scott Valid Yes on Judge Ron DeSantis Kuntz

Page 2 of 3

App.143 24 p.1 0025 0025 Rick Scott Judge Rosner or Ron DeSantis Moon. Undistinguished

25 p.1 0025 0025 Bill Nelson Andrew Gillum Bubbled last page. "X" on page 2. Front found ok "X" invalid

seals: 0298411 Resealed by Joseph 0298411 Delessandro in our presence at 3:29 pm 11/12/2018

Page 3 of 3

App.144 IN THE CIRCUIT COURT OF THE 17''1 JUDICIAL CIRCUIT IN AND FOR 13ROWA RD COUNTY,FLORIDA

CASE NO: CACE 18-026470 RICK SCOTT FOR SENATE,

Plaintiff,

Vs.

BRENDA C. SNIPES, solely in her official capacity as Broward County Supervisor of Elections, and THE BROWARD COUNTY CANVASSING BOARD,

Defendants.

ORDER ON PLAINTIFF, RICK SCOTT FOR SENATE'S, EMERGENCY MOTION FOR TEMPORARY INJUNCTION

This matter having come before the Court. on November 15, 2018, the Plaintiff, RICK SCOTT FOR SENATE's, Emergency Motion for a Temporary injunction, and the Court having reviewed the responses filed by the Defendant(s) and Intervenor(s) and having heard argument of counsel, it is ORDERED AND ADJUDGED as follows: The Motion is DENIED. The Court need not address the other three prongs required fbr injunctive relief at this time because the Court finds that Plaintiff has an adequate remedy at law pursuant to section 102.168 of the Florida Statutes and therefore is unable to obtain injunctive relief at this time. Section 102.168 of the Florida Statutes allows the contest of an election for, among other reasons, "to challenge the receipt of a number of illegal votes or rejection of a number of legal votes sufficient to change or place in doubt the result of the election." See §102.168(3)(c), Fla. Stat. Accordingly. the Supervisor of Elections l'or Broward County may count the thirteen (13) ballots, seven (7) in favor of Governor Scott and six (6) in favor of Senator Nelson, and preserve those ballots for future challenge if that should arise after the election is concluded. DONE AND ORDERED at Fort Lauderdale, Florida,er . 6"E of November, 2018.

Chief uter Copies counsel of record

App.145 Filing # 80934108 E-Filed 1 1/16/2018 03:25:15 PM

IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA

CASE NO. CACE 18-026470

RICK SCOTT FOR SENATE,

Plaintiff,

vs.

BRENDA C. SNIPES, solely in her capacity as Supervisor of Elections of Broward County, Florida, and the BROWARD COUNTY CANVASSING BOARD

Defendant's.

NOTICE OF APPEAL

NOTICE IS GIVEN that Plaintiff RICK SCOTT FOR SENATE appeals to the Fourth

District Court of Appeal the order denying Plaintiff's Emergency Motion for Temporary

Injunction rendered on November 16, 2018. The nature of the order is an appealable non-final

order denying temporary injunctive relief. See Fla. R. App. P. 9.1.30(a)(3)(B). A conformed

copy of the order is attached hereto.

Respectfully submitted,

/s/ Aliette D. Rodz Aliette D. Rodz, Esq. Florida Bar No. 0173592 Email: [email protected] Sli & BOWEN LLP 200 S. Biscayne Blvd., Suite 4100 Miami, FL 33131 Office: (305) 347-7342 Facsimile: (305) 347-7742

-and-

shutts,com I FORT LAUDERDALE I JACKSONVILLE I MIAMI I ORLANDO I SARASOTA I TALLAHASSEE I TAMPA I WEST PALM BEACH

App.146 CASE NO, CACE18026470 Notice ofAppeal

George T. Levesque, Esq. Florida Bar No, 555541 Email: george.levesque@grayrobinson,corn Leslie Arsenault Metz, Esq. Florida Bar No. 98865 Email: [email protected] Jason Zimmerman, Esq. Florida Bar No. 104392 Email:jason.zinvnerrnan@grayrobinson.com Jeff Aaron, Esq. Florida Bar No. 123473 Email:[email protected] GRAYROBINSON, P.A. 515 N. Flagler Dr., Suite 1425 West Palm Beach, FL 33401 Office:(561) 268-5727 Facsimile:(561) 886-4101

Attorneys,for Plaintiff

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of this document was served via e-mail and U.S. Mail this WI day of November 2018, to the following:

Anthony H. Quackenbush, Esq. Mitchell W. Berger, Esq. Email: ahqa,kulaw.com:, Email: [email protected]; John J. Uustal, Esq. Leonard K. Samuels, Esq. Email: [email protected]:„ Email: [email protected]; Michael A. Hersh, Esq. Andrew Bryan Zelmanowitz, Esq. Email: mah kulaw.com:, Email: [email protected]: Catherine C. Darlson, Esq. Berger Singerman, LLP Email: [email protected]; Fort Lauderdale Office Todd R. Falzone, Esq. 350 East Las Olas Boulevard Email: trfAkulaw.conr, Suite 1000 Kelley/Uustal Fort Lauderdale, FL 33301 500 N Federal Highway Suite 200 Phone:(954) 525-9900 Fort Lauderdale, FL 33301 Fax:(954) 523-2872 Telephone:(954) 522-6601

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App.147 CASE NO. CACE18026470 Notice ofAppeal

Eugene K. Pettis, Esq. Burnadette Norris-Weeks, Esq. Email: epettis ghpslegal.com Email: bnorri( s a)bnw legal, com Debra P. Klauber, Esq. Austin Parries Norris Weeks LLC Email: [email protected] 401 North Avenue of the Arts Haliczer Pettis & Schwamm,PA (NW 7th Avenue) One Financial Plaza, Fort Lauderdale, Florida 33311 100 SE 3rd Avenue, Phone:(954) 768-9770 Seventh Floor, Fort Lauderdale, FL 33394 Phone:(954) 523-9922

Andrew Meyers, Esq, George S. LeMieux, Esq. Email: [email protected]; Email: glemieuxagunster.com,. Rene Harrod, Esq. Michael W. Mardi, Esq. Email: [email protected] Email: [email protected]; Annika Ashton, Esq. Heather C. Costanzo, Esq Email: aashtonAbroward.org: Email: heostanzoggunster. corn; Scott Andron, Esq. Jacqueline DerOvanesian, Esq Email: [email protected] Email: MerOvanesia(n&zunster.com Joseph Jarone, Esq. Gunster Law Firm Email: ikjarone(@,broward.org; 450 East Las Olas Boulevard Broward County Attorney's Office Suite 1400 Office of the County Attorney Ft. Lauderdale, FL 33301-4206 Governmental Center, Suite 423 Phone:(800) 330-1980 Fort Lauderdale, FL 33301-1818 United States Phone:(954) 357-7600

Benedict Kuehne, Esq. Joel Perwin, Esq. Email: [email protected] Email: [email protected]; Larry S. Davis, Esq. Joel S. Perwin, P.A. Email: [email protected]:, 169 E. Flagler St. Michael T. Davis, Esq. Alfred I. DuPont Building Email: [email protected],. Suite 1422 Shana. J. Korda, Esq. Miami, FL 33131-1212 Email: [email protected]; Phone:(305) 779-6090 Mathew T. Hatfield, Esq. Email: [email protected]; Law Offices of Benedict P. Kuehne, P.A. 100 S.E. Second Street Suite 3550 Miami, Florida 33131 Phone:(786) 369-0213 3

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App.148 CASE NO, CACE18026470 Notice ofAppeal

Jonathan Youngwood, Esq. Kevin J. Hamilton, Esq. Email: [email protected] Email: [email protected] Isaac Rethy, Esq. Perkins Coie LLP Email: [email protected] 1201 Third Avenue Nihara Choudhri, Esq. Suite 4900 Email: NChoudhrigstblaw.com Seattle, DC 981-3099 Joshua Polster, Esq. Phone:(206) 359-8741 Email: Joshua.polsterAstblaw.com Pro Hac Vice Simpson Thacher & Barlett, LLP 425 Lexington Avenue New York, NY 10017 Phone:(212) 455-3539 Pro Hac Vice

Jonathan Brater, Esq. Email: [email protected] Myrna Perez, Esq. Email: [email protected] The Brenan Center for Justice 120 Broadway New York, NY 10271 Phone:(646) 292-8373 Pro Hac Vice

/s/ Aliette D. Rodz Aliette D. Rodz

shutts.com I FORT LAUDERDALE I JACKSONVILLE I MIAMI I ORLANDO I SARASOTA I TALLAHASSEE I TAMPA I WEST PALM BEACH

App.149 IN THE CIRCUIT COURT OF THE 17th JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA

CASE NO: CACE 18-026470 RICK SCOTT FOR SENATE,

Plaintiff,

Vs.

BRENDA C. SNIPES, solely in her official capacity as Broward County Supervisor of Elections, and THE BROWARD COUNTY CANVASSING BOARD,

1)cfctida iliS.

ORDER ON PLAINTIFF, RICK SCOTT FOR SENATE'S, EMERGENCY MOTION FOR TEMPORARY INJUNCTION

This matter having come before the Court on November 15, 2018, the Plaintiff, RICK SCOTT FOR SENATE's, Emergency Motion for a Temporary Injunction, and the Court having reviewed the responses filed by the Defendant(s) and Intervenor(s) and having heard argument of counsel, it is ORDERED AND ADJUDGED as follows: The Motion is DENIED. The Court need not address the other three prongs required tbr injunctive relief at this time because the Court finds that Plaintiff has an adequate remedy at law pursuant to section 102.168 of the Florida Statutes and therefore is unable to obtain injunctive relief at this time. Section 102.168 of the Florida Statutes allows the contest of an election for, among other reasons, "to challenge the receipt of a number of illegal votes or rejection of a number of legal votes sufficient to change or place in doubt the result of the election." See §102.168(3)(c), Fla. Stat. Accordingly, the Supervisor of. Elections for Broward County may count the thirteen (13) ballots, seven (7) in favor of Governor Scott and six (6) in favor of Senator Nelson, and preserve those ballots for future challenge if that should arise after the election is concluded. DONE AND ORDERED at Fort Lauderdale. Florida. of November, 2018.

Chief uter Copies counsel of record

App.150 IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY,FLORIDA

MATTHEW CALDWELL and CAMPAIGN TO ELECT MATT CALDWELL COMMISSIONER OF AGRICULTURE,

Case No. CACE 18-026464 Plaintiffs,

DR. BRENDA C. SNIPES, Supervisor of Elections for Broward County, Florida,

Defendant.

RICK SCOTT FOR SENATE,

Plaintiff, Case No. CACE 18-026470

DR. BRENDA C. SNIPES, Supervisor of Elections for Broward County, Florida, and THE BROWARD COUNTY CANVASSING BOARD,

Defendants.

BRIEF IN OPPOSITION TO PLAINTIFF CALDWELL'S AND PLAINTIFF SCOTT'S REOUESTS TO INVALIDATE LAWFUL BALLOTS CAST BY ELIGIBLE VOTERS Intervenor BILL NELSON FOR U.S. SENATE and the DEMOCRATIC SENATORIAL

CAMPAIGN COMMITTEE,by and through their undersigned counsel, hereby file this briefin these consolidated cases in opposition to the Amended Complaint filed by Plaintiff Matthew Caldwell and

Campaign to Elect Matt Caldwell ("Caldwell") and to the Emergency Motion for a Temporary

App.151 Injunction filed by Plaintiff Rick Scott for Senate( "Scott").

Introduction and Factual Background

These cases concern whether lawful ballots cast by eligible voters must be entirely discarded solely because of inadvertent mistakes or minor procedural noncompliance on the part of a county supervisor of elections. The Court should decline Scott's and Caldwell's invitation to throw out ballots and disenfranchise voters for no good reason. Both motions are not only unsupported by

Florida law; they stand in direct opposition to fundamental principles of both state and federal law.

Scott's Verified Complaint concerns a set of ballots that he alleges that the Defendants allowed to be counted after 12 p.m. on November 10, 2018. Scott Verified Compl. at ¶ 10. Scott does not allege that any of these ballots were voted by persons ineligible to vote, or were submitted late, or that these ballots were anything other than the lawfully cast ballots of eligible Floridian voters.

Rather, Scott argues that that these ballots are "illegal" and cannot be counted for the sole reason that they were counted by the Defendants after the deadline for submitting the first of two unofficial returns to the Department of State. Id.

Caldwell's Amended Complaint concerns a different set of approximately 205 ballots. These ballots were cast by voters who were eligible to vote, registered to vote, and presented themselves to vote at their proper polling place. When they presented their identification to the pollworker checking them in to vote, however, a connectivity issue prevented the pollworker from being able to look them up in the electronic pollbook. 11/9 Canvassing Board Tr. 98:5-100:25. For this reason alone, these voters were required to vote using a provisional ballot. After these provisional ballots were brought in from the precincts, staff from the Supervisor's office reviewed the provisional ballots, confirmed that the voter was registered to vote and in the correct precinct, and matched the voter's signature on the provisional ballot to the signature in the county's voter registration records. 11/9 Canvassing

Board Tr. 99:6-13. However,instead of presenting these provisional ballots to the Canvassing Board, 2

App.152 the Supervisor's staff members separated the ballots from the envelopes. 11/9 Canvassing Board Tr.

98:19-99:2.

As a result, when the Canvassing Board met to review these 205 provisional ballots, the

Canvassing Board could not determine which ballot corresponded to which provisional ballot

envelope. The Canvassing Board, in the interest of transparency and creating a record, proceeded to

review these 205 provisional ballot, and concluded that almost all of them were validly cast by

eligible voters whose signatures on the provisional ballots matched the signatures in the voter

registration records. With respect to a small handful of these 205 ballots(22 of the 205, according to

Caldwell, Am. Compl., ¶ 31),1 the Canvassing Board disagreed with the review performed by the

Supervisor's staff, and stated their belief that the signatures in the voter registration record and the

signature on the provisional ballot did not sufficiently match. The Canvassing Board noted, however,

that each voter who cast one of these 205 provisional ballots--including the small handful of whom

the Canvassing Board believed did not provide a sufficiently matching signature--presented proper

identification at the polling place. See, e.g., 11/9 Canvassing Board Tr. 120:6-21.

Although Caldwell admits that all the 205 provisional ballots at issue were lawfully cast

ballots of eligible Floridian voters, Caldwell nonetheless seeks to disenfranchise every single ballot

cast by these 205 voters based on nothing more than the Canvassing Board's belief that 22 of the

provisional ballots did not contain a sufficiently matching signature.

Legal Standard

While Caldwell's Amended Complaint alleges that there were 22 ballots whose signatures were deemed as non- matching by the Canvassing Board, a review of the transcript of the canvassing board meeting reveals only 16 such ballots. See 11/9 Canvassing Board Tr. 141:5-6 (James W. Wiggins); 160:3-4 (Jesus Lormejuste); 164:11-12 (Mariah Ason); 168:22-23 (Annette Kaye); 181:6-7 (Christine Cullen-Hooper); 186:10-11 (Venetia Powell); 187:11-12(Grace Hidalgo); 198:23-24 (Brianca Guzman); 208:17-18 (Melissa Caicedo); 225:9-10 (Gianni Bolanos); 225:23-24 (Peter Aymonin); 228:13-14 (Meladriel Nieveslien); 231:12-13 (Christopher Schloss); 237:5-6 (Colett Solan); 240:11-12 (Ronnesha O'Hara); 251:22-23 (Gregory Riggin). 3

App.153 A party seeking a temporary injunction "must establish that (1) there is a substantial

likelihood of success on the merits;(2) irreparable harm will result if the temporary injunction is not

entered;(3) an adequate remedy at law is unavailable; and (4) entry of the temporary injunction will

serve the public interest. Donoho v. Allen-Rosner, No. 4D18-1814, 2018 WL 4050738 (Fla. 4th

DCA Aug. 24, 2018)(citing Univ. Med. Clinics, Inc. v. Quality Health Plans, Inc., 51 So. 3d 1191,

at *1, 1195 (Fla. 4th DCA 2011)).

Argument

A. Contrary to Scott's Complaint, No Florida Law Requires That An Eligible Voter Must Be Wholly Disenfranchised Because a County Canvassing Board Happens to Process Their Ballot After the First of Two Deadlines for Unofficial Returns

Scott alleges that Defendants violated Florida Statutes Annotated section 102.141(5), which

provides an interim deadline for reporting unofficial returns. But nothing in that statute provides that

the remedy for a failure to meet that deadline is the total disenfranchisement of lawful voters who

did everything right, but had the misfortune of having their ballots counted by the Defendants after

a deadline for unofficial returns. Had the Legislature intended such a draconian remedy, it would

have said so. But the statute is silent.

In fact, Florida law stands in opposition to that very notion. The Florida Supreme Court has

held that "when the voters have done all that the statute has required them to do, they will not be

disenfranchised solely on the basis of the failure of the election officials to observe direct statutory

instructions." Boardman v. Esteva, 323 So.2d 259, 268 (Fla. 1975). The cases on point are

numerous: Florida law strongly favors -- as it should -- counting the votes of lawful voters over

hypertechnical compliance with procedural rules. See, e.g., State ex rel. Chappel v. Martinez, 536

So. 2d 1007, 1008(Fla. 1988); Taylor v. Martin County Canvassing Bd., 773 So.2d 517, 518-19(Fla.

2000); State ex rel. Carpenter v. Barber, 144 Fla. 159 163-64 (Fla. 1940); State ex rel. Titus v.

Peacock, 125 Fla. 810, 811-12 (Fla. 1936). 4

App.154 B. Scott's Proposed Construction of Fla. Stat. § 102.141 Raises Grave Constitutional Concerns and Should Be Disregarded

Scott's proffered construction of Florida Statutes Annotated section 102.141(5) should also be disregarded to avoid an unconstitutional result. A state's failure to count valid ballots timely submitted by eligible voters, simply because the county did not meet an interim statutory deadline, would likely violate both the due process and equal protection clauses of the Florida and United

States Constitutions. Scott's construction would result in identically situated eligible voters having their lawful ballots counted or discarded solely based on where they happened to fall in the

Canvassing Board's processing queue. That simply cannot be, and is not, the law of this -- or any other -- state.

C. Caldwell's Requested Relief Would Unlawfully Disenfranchise Hundreds of Eligible Voters Who Are Entitled to Vote

Caldwell's request to throw out the valid ballots of indisputably eligible voters is contrary to

Florida law. Indeed, Caldwell cites no law in support of his requested relief because there is none.

To the contrary, Florida Statutes Annotated section 101.048(2)(a) provides that "[a] ballot of a person casting a provisional ballot shall be counted unless the canvassing board determines by a preponderance of the evidence that the person was not entitled to vote." (emphasis added). This statute is cast in mandatory terms, and contemplates an individualized review of provisional ballots for evidence regarding a particular voter's eligibility. Caldwell's requested relief would violate the plain terms ofthis statute, because neither the board nor this Court can determine by a preponderance of the evidence that any given ballot of the 205 ballots at issue belongs to a person whom the

Canvassing Board believed to have submitted an insufficiently matching signature. See also Fla. Stat.

101.5614(5) (requiring that all valid votes should be counted if the voter's intent is clear on the ballot). The Florida Supreme Court has also recognized that no ballot should be ignored, that every 5

App.155 citizen's vote must be counted whenever possible, and that no vote shall be declared invalid or void

absent a clear indication of same. Gore v. Harris, 772 So.2d 1243, 1254 (Fla. 2000). Rejecting a

ballot, without a clear finding that the specific ballot is invalid, is therefore unlawful, and the

Canvassing Board did not err in proceeding accordingly.

D. Florida Law is Clear that Mere Negligence by County Elections Officials Does Not Justify Disenfranchising Eligible Voters, Particularly Where There Is No Evidence of Fraud or Misconduct

To the extent that the Supervisor or her staff incorrectly separated the 205 provisional ballots

at issue from their envelopes before presenting these provisional ballots to the Canvassing Board,

Florida law is clear that this mistake provides no basis for throwing out the valid votes ofindisputably

eligible voters. The Florida Supreme Court has held that "when the voters have done all that the

statute has required them to do, they will not be disenfranchised solely on the basis of the failure of

the election officials to observe direct statutory instructions." Boardman v. Esteva, 323 So.2d 259,

268 (Fla. 1975). Florida courts have been particularly unwilling to throw out valid ballots based

solely on the basis that some ballots mixed among them may be "tainted" by procedural irregularities.

McLean v. Bellamy, 437 So. 2d 737, 750 (Fla. Dist. Ct. App. 1983) (finding that irregularities

resulting from election administrators' negligence were insufficient to support the disfranchisement

of a large number of voters whose qualifications as electors have not been questioned and who have

no fault whatsoever in the manner in which they cast their ballots). Nor have courts in this state

permitted the invalidation of ballots based solely on the mere possibility of fraud, in the absence of

evidence of actual fraud or misconduct on the part of election administrators. See Taylor v. Martin

Cty. Canvassing Bd., 773 So. 2d 517, 519 (Fla. 2000)

Not only is there utterly no evidence of any misconduct or fraud on the part of the Supervisor

(or anyone else), but the probability of disenfranchisement of eligible voters is certain. Indeed, while

it is undisputed that the vast majority of voters who Scott seeks to disenfranchise are eligible voters, 6

App.156 Scott has not presented any evidence that the provisional ballots containing insufficiently matching signatures were obtained through in-person voter impersonation and for good reason: there is none.

Indeed, each of these provisional voters presented valid identification to the poliworker before they cast their provisional ballot. See, e.g., 11/9 Canvassing Board Tr. 120:6-21. The only evidence of any purported irregularity is the Canvassing Board's opinion that the provisional voters' signatures did not match. But as multiple federal courts have found in the past two years, signature comparison is an unreliable process highly prone to error.2 Indeed, the potential for error is apparent with respect to the provisional ballots at issue, where two different groups of reviewers (the Supervisor's staff and the Canvassing Board) reached different conclusions regarding whether the signatures were sufficiently matching.3

Moreover, it would be particularly inequitable to throw out the votes of these provisional voters given that the voters themselves did nothing wrong. Each ofthem registered to vote, showed up to their correct polling place, and provided valid ID. Were it not for connectivity issues related to the Supervisor's e-pollbook system, they would have cast a regular ballot rather than a provisional ballot, and never been at risk of having their right to vote threatened by a combination of inadvertent administrative error and Caldwell's ill-conceived lawsuit.

E. Neither Caldwell Nor Scott Has Met the Requirements for an Injunction to Issue

Neither Caldwell nor Scott are likely to succeed on the merits, and their motions for injunctive

2 See, e.g., Fla. Democratic Party v. Detzner, No. 4:16CV607-MW/CAS, 2016 WL 6090943, at *7(N.D. Fla. Oct. 16, 2016)("There is simply no evidence that these mismatched-signature ballots were submitted fraudulently. Rather, the record shows that innocent factors—such as body position, writing surface, and noise—affect the accuracy of one's signature."); Saucedo v. Gardner, No. 17-CV-183-LM, 2018 WL 3862704, at *11 (D.N.H. Aug. 14, 2018)(finding that the task of handwriting analysis by laypersons is "fraught with error"); Martin v. Kemp, No. 1:18-CV-4776-LMM, 2018 WL 5276242, at *9(N.D. Ga. Oct. 24, 2018). But 3 Moreover the whole point of signature verification is to confirm the identity of the individual voting the ballot. here, in every single instance, the voter presented valid identification to the poll worker, in person. There is, accordingly, no reason to match the signatures since the identification of the voter was already performed in person at the polling place. Disenfranchising voters who properly identified themselves, and were fully entitled to vote, simply because the Canvassing Board did not believe that their signatures matched serves no legitimate state purpose. 7

App.157 relief can be rejected on that basis alone. Nor can either Plaintiff meet the other requirements for preliminary injunctive relief. Plaintiffs cannot identify any irreparable harm resulting from the counting of votes cast by American citizens fully entitled to vote and who did so properly. Nor is it in the public interest to disenfranchise who were entitled to vote and properly did so, simply because oferrors on the part of county elections officials. To the contrary, it is the voters of Broward County who would be disenfranchised who would suffer permanent and irreparable harm from such an injunction. The Court should err on the side of enfranchisement, and deny Plaintiffs' requests to discard lawful votes.

Conclusion

For the foregoing reasons, Intervenors respectfully request that the Court deny Plaintiffs' requests for injunctive relief and dismiss both complaints with prejudice.

App.158 Dated: November 14, 2018 Respectfully submitted,

/s/ Anthony H. Quackenbush Anthony H. Quackenbush John J. Uustal Michael A. Hersh Catherine C. Darlson Todd R. Falzone Kelley/Uustal 500 N Federal Highway Suite 200 Fort Lauderdale, FL 33301 Telephone:(954) 522-6601

Ron Meyer Meyer, Brooks, Demma & Blohm,P.A. 131 North Gadsen Street Tallahassee, Florida 32301 Telephone:(850) 878-5212

Marc E. Elias* PERKINS COIE LLP 700 Thirteenth Street, N.W., Suite 600 Washington, D.C. 20005-3960 Telephone:(202) 654-6200

David L. Anstaett* PERKINS COIE LLP 1 East Main Street, Suite 201 Madison, WI 53703 Telephone:(608) 663-5408

Kevin J. Hamilton** PERKINS COIE LLP 1201 Third Avenue Suite 4900 Seattle, Washington 98101-3099 Telephone:(206) 359-8741

Counselfor Intervenors *Seeking Pro Hac Vice Admission **Admitted Pro Hac Vice

App.159