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01069577-1
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
SUSAN BUCHER, solely in her capacity as Supervisor of Elections of Palm Beach County, Florida
Appellant/Petitioner, v.
RICK SCOTT FOR SENATE,
Appellee/Respondent. /
Case No.: 4D18-3319
AMENDED APPENDIX TO APPELLANT’S INITIAL BRIEF
JENNIFER R. COWAN Florida Bar No.0038081 Primary Email: [email protected] Email: [email protected] Email: [email protected], Longman & Walker, P.A. 100 2nd Avenue South, Suite 501-S St. Petersburg, FL 33701 Telephone: (727) 245-0820
ANDREW J. BAUMANN Florida Bar No. 0070610 Primary Email: [email protected] Email: [email protected] Secondary Email: [email protected] B. SANTANA Florida Bar No. 107677 Primary Email: [email protected] Email: [email protected]
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01069577-1
Lewis, Longman & Walker, P.A. 515 North Flagler Drive, Suite 1500 West Palm Beach, Florida 33401 Telephone: (561) 640-0820 Facsimile: (561) 640-8202
NATALIE A. KATO Florida Bar No. 87256 Primary email: [email protected] email: [email protected], Longman & Walker, P.A. 315 South Calhoun Street, Suite 830 Tallahassee, FL 32202 Telephone: (850) 222-5702 Counsel for Appellant
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01069577-1
AMENDED APPENDIX TO APPELLANT’S INITIAL BRIEF
No. Description Bates Numbers
1. Verified Complaint for Declaratory and Injunctive Relief, dated November 8, 2018
000006-0000011
2. Plaintiff’s Verified Emergency Motion for a Temporary Injunction and Supporting Memorandum of Law, dated November 8, 2018
00000012-000022
3. Notice of Hearing for Emergency Motion for Temporary Injunction and Complaint for Declaratory & Injunctive Relief, dated November 8, 2018.
000023-000024
4. Notice of Filing Hearing Transcript of November 9, 2018, dated November 16, 2018
000025-000084
5. Order on Plaintiff’s Verified Emergency Motion for a Temporary Injunction, dated November 9, 2018
000085-000086
6. Emergency Motion for Reconsideration, Status Conference, and Emergency Stay, dated November 9, 2018
000087-000092
7. Notice of Filing Hearing Transcript of November 10, 2018, dated November 13, 2018
000093-000144
8. Order Setting Hearing on Defendant’s Emergency Motion for Reconsideration, Status Conference, and Emergency Stay, dated November 9, 2018
000145-000146
9. Plaintiff, Rick Scott For Senate’s Verified Response in Opposition to Defendant’s Motion for Reconsideration, Status Conference, and Emergency Stay, dated November 9, 2018
000147-000171
10. Order on Emergency Motion for Reconsideration, Status Conference, and Emergency Stay, dated November 10, 2018
000172-000174
000003
01069577-1
11. Notice of Appeal, dated November 10, 2018 000175-000181
12. Amended Notice of Appeal, dated November 13, 2018
000182-000188
13. Rule 1S-2.027, Florida Administrative Code 000189-000203
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01069577-1
CERTIFICATE OF COMPLIANCE
Counsel for Appellee, SUSAN BUCHER, in her capacity as SUPERVISOR OF
ELECTIONS for Palm Beach County, FL, certifies that this pleading has been prepared in
Times New Roman, 14-point font, in compliance with the requirements set forth in Florida
Rule of Appellate Procedure 9.210(a)(2).
/s/ Jennifer R. Cowan JENNIFER R. COWAN, ESQUIRE Florida Bar No.: 0038081
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was served via
electronic mail to: Aliette D. Rodz, Esq., Shutts & Bowen, LLP, 200 S. Biscayne
Boulevard, Suite 4100, Miami, FL 33131, [email protected], George T.
Levesque, Esq., Leslie Arsenault Metz, Esq., Jason Zimmerman, Esq. and Jeff Aaron,
Esq., GrayRobinson, P.A., 515 North Flagler Drive, Suite 1425, West Palm Beach, FL
33401, [email protected], [email protected],
[email protected], and [email protected], Attorneys for
Appellee, on this 27th day of November, 2018.
/s/ Jennifer R. Cowan JENNIFER R. COWAN, ESQUIRE Florida Bar No.: 0038081
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1
IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
RICK SCOTT FOR SENATE,
Plaintiff,
v.
SUSAN BUCHER, solely in her capacity as
Supervisor of Elections of Palm Beach
County, Florida,
Defendant.
CASE NO.
JUDGE
Verified Complaint
VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Plaintiff, Rick Scott for Senate (“Plaintiff”), through undersigned counsel, sues Susan
Bucher, solely in her capacity as the Supervisor of Elections of Palm Beach County, Florida
(“Defendant”), 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 Palm Beach County, Florida because Defendant maintains her
principal places of business in Palm Beach County and because all or part of the claim for relief
at issue in this litigation arose in Palm Beach County.
PARTIES
3. Plaintiff is a federal campaign committee authorized to conduct political activity
throughout the state of Florida.
4. Defendant is responsible for overseeing the conduct of elections in Palm Beach
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2
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 Palm Beach
County and throughout Florida. Plaintiff’s interests in enforcement of the 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 AGAINST
DEFENDANT’S VIOLATION OF § 101.5614(4)(a), FLA. STAT. REGARDING THE
PROCESSING OF PHYSICALLY DAMAGED, “OVERVOTED,” AND
“UNDERVOTED” ABSENTEE BALLOTS
7. Plaintiff adopts and realleges the allegations of paragraphs 1–6 above.
8. Section 101.5614(4)(a), Fla. Stat., the provision of the Florida Election Code at
issue in this lawsuit, governs the processing of physically damaged, “overvoted,” and
“undervoted” absentee ballots. That provision states, in relevant part (emphasis added):
If any vote-by-mail ballot is physically damaged so that it cannot
properly be counted by the automatic tabulating equipment, a true
duplicate copy shall be made of the damaged ballot in the
presence of witnesses and substituted for the damaged ballot.
Likewise, a duplicate ballot shall be made of a vote-by-mail ballot
containing an overvoted race or a marked vote-by-mail ballot in
which every race is undervoted which shall include all valid votes
as determined by the canvassing board based on rules adopted
by the division pursuant to s. 102.166(4).
9. The language of § 101.5614(4)(a) is uncomplicated and unambiguous.
10. Regarding the processing of physically damaged absentee ballots,
§ 101.5614(4)(a) requires the Supervisor of Elections to make true duplicate copies of all such
damaged ballots “in the presence of witnesses.”
11. Regarding the processing of “overvoted” and “undervoted” absentee ballots,
000007
3
§ 101.5614(4)(a) provides that only the Canvassing Board—not the Supervisor of Elections, or
any other entity—is authorized to determine “all valid votes . . . based upon rules adopted by the
division . . .” No provision of the Florida Election Code (or any other legal authority) confers
upon the Supervisor of Elections (or any other entity) the power to determine which “overvoted”
or “undervoted” absentee ballots contain “valid votes,” within the meaning of § 101.5614(4)(a).
That power belongs exclusively to the Canvassing Board.
12. Defendant is presently violating the mandates of § 101.5614(4)(a) in two respects.
13. First, on November 8, 2018, Defendant refused to allow Plaintiff’s representatives
(or the representatives of any other political party) to properly witness Defendant’s processing
and duplication of physically damaged absentee ballots.
14. In fact, Plaintiff’s representatives have only been allowed outside of the proximity
required to properly witness Defendant’s staff’s review and processing of the ballots. Defendant
has effectively precluded Plaintiff’s representatives from making any substantive observation of
the activities of Defendant’s staff, in direct violation of § 101.5614(4)(a).
15. The statute requires Defendant to make true duplicate copies of all physically
damaged absentee ballots “in the presence of witnesses.” § 101.5614(4)(a). As of the filing of
this lawsuit, Plaintiff’s representatives have been prohibited from witnessing and/or actually
overseeing the duplication of physically damaged absentee ballots. Plaintiff’s representatives
have not even been allowed to confirm Defendant’s compliance with the statute’s procedure for
processing physically damaged absentee ballots.
16. Despite having thousands of ballots to review, Defendant provided Plaintiff’s
representatives with a very quick partial walk-through of the area and then did not allow any
further access in reasonable proximity to Defendant’s staff. Moreover, as of mid-afternoon,
000008
4
upon information and belief Plaintiff learned that there were roughly 1500 faxed-in military
ballots and to the extent that these need to be converted to a ballot, the same issues noted above
took place.
17. Second, and even more alarmingly, Defendant has failed to allow the Palm Beach
County Canvassing Board to execute its statutory duty to determine “all valid votes” from
“overvoted” and “undervoted” absentee ballots. Instead, Defendant—in violation of the express
language of § 101.5614(4)(a)—has made determinations regarding voter intent herself (through
her staff), and has withheld a portion of “overvoted” and “undervoted” absentee ballots from the
Palm Beach County Canvassing Board, which the Board will not be provided for review
tomorrow. As prescribed in § 101.5614(4)(a), only the Palm Beach County Canvassing Board—
not Defendant, or any other entity—is empowered by law to determine “all valid votes” from
“overvoted” and “undervoted” absentee ballots.
18. Plaintiff notified Defendant about the violations of § 101.5614(4)(a), but as of the
filing of this lawsuit, Defendant has failed to cure such violations.
19. There is a present, bona fide controversy over whether Defendant is presently
violating the mandates of § 101.5614(4)(a).
20. Plaintiff’s, its candidates’, and its voters’ rights will be violated if the Election
Code is not followed, as Defendant’s ongoing violations of § 101.5614(4)(a) jeopardizes the
integrity of, and may alter the outcome of, the 2018 general election.
21. Plaintiff has no adequate remedy at law.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for judgment as follows:
a. A declaratory judgment that Defendant’s refusal to allow Plaintiff’s
representatives to witness Defendant’s processing and duplication of physically damaged
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absentee ballots violates § 101.5614(4)(a), Fla. Stat.
b. A declaratory judgment that Defendant’s, rather than the Palm Beach County
Canvassing Board’s, determination of “all valid votes” from “overvoted” and “undervoted”
absentee ballots violates § 101.5614(4)(a), Fla. Stat.
c. A temporary and permanent injunction ordering Defendant to cease violating
§ 101.5614(4)(a), Fla. Stat., and ordering Defendant (i) to have the Supervisor’s staff review the
duplicate ballots together with the original damaged ballots in the presence of the Plaintiff and
any other witnesses, and if there is an objection by the witnesses, require the objected to
duplicate ballots in question to be set aside for immediate review by the Canvassing Board once
the review process is complete of all physically damaged absentee ballots and duplicate ballots,
consistent with the procedure codified in § 101.5614(4)(a); and (ii) to allow the Palm Beach
County Canvassing Board (and only that entity) to determine valid votes from “overvoted” and
“undervoted” absentee ballots, consistent with the procedure codified in § 101.5614(4)(a).
d. The costs of this lawsuit, together with reasonable attorney’s fees to the extent
provided by law; and
e. Such further relief as the Court deems 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 the Plaintiff
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Dated: November 8, 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: [email protected]
Leslie Arsenault Metz, Esq.
Florida Bar No. 98865
Email: [email protected]
Jason Zimmerman, Esq.
Florida Bar No. 104392
Email: jason.zimmerman@gray-
robinson.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
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IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
RICK SCOTT FOR SENATE,
Plaintiff,
v.
SUSAN BUCHER, solely in her capacity as
Supervisor of Elections of Palm Beach
County, Florida,
Defendant.
CASE NO.
JUDGE
PLAINTIFF'S VERIFIED EMERGENCY MOTION FOR A TEMPORARY
INJUNCTION AND SUPPORTING MEMORANDUM OF LAW
Plaintiff, Rick Scott for Senate (“Plaintiff”), through undersigned counsel, respectfully
moves this Court pursuant to Fla. R. Civ. P. 1.610(a) for a Temporary Injunction, ordering
Defendant Susan Bucher, solely in her capacity as Supervisor of Elections of Palm Beach
County, Florida (“Defendant”), to cease violating § 101.5614(4)(a), Fla. Stat., and ordering
Defendant: (i) to have the Supervisor’s staff review the duplicate ballot together with the original
damaged ballot in the presence of the Plaintiff and any other witnesses, and if there is an
objection by the witnesses, require the objected to duplicate ballots in question to be set aside for
immediate review by the Canvassing Board once the review process is complete of all physically
damaged absentee ballots and duplicate ballots, consistent with the procedure codified in
§ 101.5614(4)(a); and (ii) to allow the Palm Beach County Canvassing Board (and only that
entity) to determine valid votes from “overvoted” and “undervoted” absentee ballots, consistent
with the procedure codified in § 101.5614(4)(a).
000012
2
Defendant’s failure to follow the procedures codified in § 101.5614(4)(a) has inflicted,
and continues to inflict, irreparable injury upon Plaintiff. Respectfully, this Court should issue
immediate relief to protect both the Plaintiff and the integrity of the 2018 general election.
As attested in the attached Certificate of Service, Plaintiff concurrently is serving
Defendant with the Verified Complaint and this Motion by facsimile and e-mail.
Dated: November 8, 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: [email protected]
Leslie Arsenault Metz, Esq.
Florida Bar No. 98865
Email: [email protected]
Jason Zimmerman, Esq.
Florida Bar No. 104392
Email: jason.zimmerman@gray-
robinson.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
000013
3
MEMORANDUM OF LAW IN SUPPORT OF
EMERGENCY MOTION FOR A TEMPORARY INJUNCTION
Plaintiff respectfully requests that this Court immediately issue a Temporary Injunction,
ordering Defendant to cease violating § 101.5614(4)(a), Fla. Stat., and ordering Defendant (i) to
make true duplicate copies, in the presence of witnesses, of all physically damaged absentee
ballots, consistent with the procedure codified in § 101.5614(4)(a); and (ii) to allow the Palm
Beach County Canvassing Board (and only that entity) to determine valid votes from
“overvoted” and “undervoted” absentee ballots, consistent with the procedure codified in
§ 101.5614(4)(a). In support of this Motion, Plaintiff states:
I. FLORIDA LAW GOVERNING THE PROCESSING OF PHYSICALLY DAMAGED,
“OVERVOTED,” AND “UNDERVOTED” ABSENTEE BALLOTS
Section 101.5614(4)(a), Fla. Stat., the provision of the Florida Election Code at issue
here, governs the processing of physically damaged, “overvoted,” and “undervoted” absentee
ballots. That provision states, in relevant part (emphasis added):
If any vote-by-mail ballot is physically damaged so that it cannot
properly be counted by the automatic tabulating equipment, a true
duplicate copy shall be made of the damaged ballot in the
presence of witnesses and substituted for the damaged ballot.
Likewise, a duplicate ballot shall be made of a vote-by-mail ballot
containing an overvoted race or a marked vote-by-mail ballot in
which every race is undervoted which shall include all valid votes
as determined by the canvassing board based on rules adopted
by the division pursuant to s. 102.166(4).
The language of § 101.5614(4)(a) is uncomplicated and unambiguous. First, regarding the
processing of physically damaged absentee ballots, § 101.5614(4)(a) requires the Supervisor of
Elections to make true duplicate copies of all such damaged ballots in the presence of
witnesses. Second, regarding the processing of “overvoted” and “undervoted” ballots,
§ 101.5614(4)(a) is clear that only the Canvassing Board—not the Supervisor of Elections—is
000014
4
authorized to determine “all valid votes . . . based upon rules adopted by the division . . . .” No
provision of Florida’s Election Code (or any other authority) confers upon the Supervisor of
Elections the power to determine which “overvoted” and “undervoted” absentee ballots contain
“valid votes,” within the meaning of § 101.5614(4)(a). That power, as prescribed in
§ 101.5614(4)(a), belongs exclusively to the Canvassing Board.
II. OVERVIEW OF DEFENDANT’S UNLAWFUL CONDUCT
As explained in the Verified Complaint at ¶¶ 12–18, Defendant is presently violating the
mandates of § 101.5614(4)(a) by failing to follow the procedures for processing physically
damaged, “overvoted,” and “undervoted” absentee ballots.
Specifically, Defendant has refused to allow Plaintiff’s representatives (or the
representatives of any political party) to witness Defendant’s processing and duplication of
physically damaged absentee ballots. Verified Complaint at ¶¶ 13–16. In fact, the Plaintiff has
only been allowed outside of the proximity required to properly witness the staff’s review and
processing of the ballots. Id. at ¶ 14. Instead, Defendant has essentially precluded the Plaintiff
from making any substantive observation of the activities of the staff in direct violation of
§ 101.5614(4)(a). Id. The statute requires Defendant to make true duplicate copies of all
physically damaged ballots “in the presence of witnesses” and, as of the filing of this Motion,
Plaintiff’s representatives have been prohibited from witnessing and/or actually overseeing the
duplication of ballots. Id. at ¶ 15. Plaintiff has not even been allowed to confirm Defendant’s
compliance with the statute’s procedure for processing such damaged ballots. Id. Despite having
thousands of ballots to review, the Supervisor provided the Plaintiff with a very quick partial
walk-through of the area and then did not allow any further access in reasonable proximity to the
staff. Id. at ¶ 16. Moreover, as of mid-afternoon, upon information and belief Plaintiff learned
000015
5
that there were roughly 1500 faxed in military ballots and to the extent that these need to be
converted to a duplicate ballot, the same issues noted above took place. Id.
Even more alarmingly, regarding the processing of “overvoted” and “undervoted”
absentee ballots, Defendant has failed to allow the Palm Beach County Canvassing Board to
execute its statutory duty to determine “all valid votes” from such irregular ballots. Id. at ¶ 17.
Instead, Defendant--in violation of the express language of § 101.5614(4)(a)--has made
determinations regarding voter intent herself, and has withheld a portion of “overvoted” and
“undervoted” absentee ballots from the Palm Beach County Canvassing Board—to which they
will not review tomorrow. Id. As explained above, the Palm Beach County Canvassing Board--
not Defendant--is the only entity empowered by law to determine “all valid votes” from
“overvoted” and “undervoted” absentee ballots. See § 101.5614(4)(a).
III. MEMORANDUM OF LAW: PLAINTIFF SATISFIES THE REQUIREMENTS FOR
OBTAINING A TEMPORARY INJUNCTION
A. The Standard 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
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.”
000016
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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).
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 “[g]iven 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
101.5614 clearly and unambiguously instructs election officials to create a true duplicate copy of
000017
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any damaged ballots in the presence of witnesses and substitute the damaged ballot. Likewise, a
duplicate ballot shall be made of a vote-by-mail ballot containing an overvoted race or a marked
vote-by-mail ballot in which every race is undervoted which shall include all valid votes as
determined by the canvassing board based on the rules adopted by the division pursuant to
s. 102.166(4). All duplicate ballots shall be clearly labeled “duplicate,” bear a serial number
which shall be recorded on the defective ballot, and be counted in lieu of the defective ballot.
See Florida Statute Section 101.5614 (4)(a). This has not been done. That provision contains no
exceptions and, indeed, the Division of Elections has already determined which ballots it will
show to the Canvassing Board and which it deems that it can correct itself without any witnesses
as required under Florida law.
Second, the Verified Complaint clearly shows that Plaintiff will suffer immediate and
irreparable injury absent the Court’s issuance of a temporary injunction. See Verified Complaint
at ¶¶ 12-18, and 20. The general election has taken place and these post-election matters are to
conclude by 5PM Eastern time today. Unless this Court grants immediate relief, Plaintiff’s
interest in ensuring a fair and orderly election, and Plaintiff’s members’ right to the same, will be
unduly burdened by the potentially unauthorized, duplicative votes or inaccurate votes cast by
electors at the affected precincts, where Defendant failed to comply with the requirement of
§ 101.5614. 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”); Hunter v. Hamilton Cnty. Bd. of Elections, 2010 WL 4878957, at *4–*5 (S.D. Ohio
Nov. 22, 2010) (recognizing that a candidate may suffer irreparable harm if provisional ballots
000018
8
that should be counted are not counted); Fla. State Conference of N.A.A.C.P. v. Browning, 569 F.
Supp. 2d 1237, 1251 (denying plaintiffs’ request to enjoin Florida voter identification statute in
light of the State’s compelling interest “in fair and honest elections”). Moreover, as discussed
above, notice of the Verified Complaint and the instant Motion is being served
contemporaneously on Defendant. 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 are presently underway, subjecting Plaintiff to
immediate and irreparable injury as a result of Defendant’s conduct. Defendant’s violation of
the § 101.5614 will increase the risk of improper and/or likely “double-counting” of voters’
ballots, which the courts cannot correct in the future, after the conclusion of the election.
Plaintiff’s only pathway to achieving relief is through this Court’s issuance of a temporary
injunction, which would at least help ameliorate Defendant’s election law violations.
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 (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 (finding that the public interest is served by protecting the “‘fundamental
000019
9
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 in favor of requiring election officials to strictly comply with the requirements of
§ 101.5614.
CONCLUSION
For these reasons, Plaintiff respectfully requests that this Court immediately issue a
Temporary Injunction ordering Defendant: (i) to have the Supervisor’s staff review the duplicate
ballots together with the original damaged ballots in the presence of the Plaintiff and any other
witnesses, and if there is an objection by the witnesses, require the objected to duplicate ballots
in question to be set aside for immediate review by the Canvassing Board once the review
process is complete of all physically damaged absentee ballots and duplicate ballots, consistent
with the procedure codified in § 101.5614(4)(a); and (ii) to allow the Palm Beach County
Canvassing Board (and only that entity) to determine valid votes from “overvoted” and
“undervoted” absentee ballots, consistent with the procedure codified in § 101.5614(4)(a).
Dated: November 8, 2018
000020
10
VERIFICATION
Under penalty of perjury, I declare that I have read the foregoing Emergency Motion, and
the facts alleged therein are true and correct to the best of my knowledge and belief.
Aliette D. Rodz
Counsel for Plaintiff
CERTIFICATE OF SERVICE
I hereby certify that on this 8th day of November, 2018, I did cause a true and correct
copy of the Verified Complaint, and the foregoing Plaintiff’s Emergency Motion for Temporary
Injunction and Supporting Memorandum of Law, to be served via facsimile and email upon:
Palm Beach County Supervisor of Elections
Susan Bucher, Supervisor
240 South Military Trail
West Palm Beach, FL 33415
P O Box 22309
West Palm Beach, FL 33416 -2309
Phone: 561-656-6200
Fax: 561-656-6287
Email: [email protected]
Respectfully submitted,
/s/ Aliette D. Rodz
Aliette D. Rodz, Esq.
Florida Bar No. 0173592
Email: [email protected]
200 S. Biscayne Blvd., Suite 4100
Miami, FL 33131
Office: (305) 347-7342
Facsimile: (305) 347-7742
-and-
000021
11
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@gray-
robinson.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
000022
1
IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA
RICK SCOTT FOR SENATE,
Plaintiff,
v.
SUSAN BUCHER, solely in her capacity as Supervisor of Elections of Palm Beach County, Florida,
Defendant.
CASE NO. 50-2018-CA-014075
JUDGE Krista Marx
NOTICE OF HEARING
PLEASE TAKE NOTICE that a hearing has been set before the Honorable Krista Marx
at the Palm Beach County Courthouse, 205 N. Dixie Hwy, Room 9G, West Palm Beach, Florida
on Friday, November 9, 2018 at 10:30 a.m., or as soon as the matter may be heard upon:
EMERGENCY MOTION FOR TEMPORARY INJUNCTION AND COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF
Filing No. 80580741
PLEASE BE GOVERNED ACCORDINGLY.
If you are a person with a disability who needs any accommodation in order to participate in this proceeding, you are entitled, at no cost to you, to the provision of certain assistance. Please contact the Fifteen Judicial Circuit Court’s ADA Coordinator, 205 N. Dixie Hwy, West Palm Beach, FL, Telephone (561-355-4380); at least 7 days before your scheduled court appearance, or immediately upon receiving this notification if the time before the scheduled appearance is less than 7 days; if you are hearing or voice impaired, call 711.
Filing # 80589129 E-Filed 11/09/2018 09:35:32 AM
000023
Notice of Hearing Case No. 50-2018-CA-014075
2
Dated: November 8, 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: [email protected] Leslie Arsenault Metz, Esq. Florida Bar No. 98865 Email: [email protected] Jason Zimmerman, Esq. Florida Bar No. 104392 Email: jason.zimmerman@gray- robinson.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
000024
01062425-1
IN THE CIRCUIT COURT FOR THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA
RICK SCOTT FOR SENATE,
Plaintiff,
v .
SUSAN BUCHER, solely in her capacity as Supervisor of Elections of Palm Beach County, Florida
Defendant. ______________________________________/
CASE NO.: 502018-CA-014075XXXXMB DIVISION: KRISTA MARX
NOTICE OF FILING HEARING TRANSCRIPT OF NOVEMBER 9, 2018
Defendant, SUSAN BUCHER, solely in her capacity as Supervisor of Elections of Palm
Beach County, Florida, by and through her undersigned counsel, hereby gives notice of filing the
transcript of the hearing which took place before the Honorable Krista Marx on November 9, 2018.
Respectfully submitted this 16th day of November, 2018.
/s/ Andrew J. Baumann Andrew J. Baumann Florida Bar No. 0070610 Primary Email: [email protected] Email: [email protected] Secondary Email: [email protected] B. Santana Florida Bar No. 107677 Primary Email: [email protected] Email: [email protected], Longman & Walker, P.A. 515 North Flagler Drive, Suite 1500 West Palm Beach, Florida 33401 Telephone: (561) 640-0820 Facsimile: (561) 640-8202
000025
Rick Scott for Senate v. Susan Bucher, et al. Case No. 502018CA014075XXXXMB
Notice of Filing Hearing Transcript of November 9, 2018 Page 2 of 2
01062425-1 2
NATALIE A. KATO Florida Bar No. 87256 Primary email: [email protected] email: [email protected], Longman & Walker, P.A. 315 South Calhoun Street, Suite 830 Tallahassee, FL 32202 Telephone: (850) 222-5702 Counsel for Defendants, Susan Bucher
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was served via the
Florida Court’s E-filing Portal on this 16th day of November, 2018 to:
Aliette D. Rodz, Esquire Shutts & Bowen LLP 200 S. Biscayne Blvd, Suite 4100 Miami, FL 33131 (305) 347-7342 Email: [email protected] for Plaintiff
George T. Levesque, Esquire Leslie Arsenault Metz, Esquire Jason Zimmerman, Esquire Jeff Aaron, Esquire GrayRobinson, P.A. 515 North Flagler Drive, Suite 1425 West Palm Beach, FL 33401 (561) 268-5727 Email: [email protected]@[email protected]@gray-robinson.com
/s/ Andrew J. Baumann Andrew J. Baumann Florida Bar No. 0070610
000026
1 IN THE CIRCUIT COURT OF THE 15th
JUDICIAL CIRCUIT IN AND FOR
2 PALM BEACH COUNTY, FLORIDA
3 CASE NO: 50-2018-CA-014075-XXXX-MB
4
5 RICK SCOTT FOR SENATE,
6 Plaintiff.
7 vs.
8 SUSAN BUCHER,
9 Defendant.
10 ______________________________________/
11 Proceedings had and taken place before the
12 Honorable Krista Marx, one of the Judges of said
13 Court, at the Palm Beach County Courthouse, 205
14 North Dixie Highway, Room 10E, West Palm Beach,
15 Florida, on Friday, the 9th day of November 2018,
16 commencing at the hour of 11:00 a.m., and being a
17 Hearing.
18
19
20
21
22
23
24
25
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1 APPEARANCES:
2 Appearing on behalf of the Plaintiff:
3 SHUTTS & BOWEN, LLP
200 South Biscayne Boulevard, Suite 4100
4 Miami, Florida 33131
305-358-6300
BY: ALIETTE RODZ, ESQUIRE
7 BY: BENJAMIN GIBSON, ESQUIRE
BY: JASON GONZALEZ, ESQUIRE
8
GRAY ROBINSON, P.A.
9 301 East Pine Street, Suite 1400
Orlando, Florida 32801
10 407-244-5669
11 BY: JASON ZIMMERMAN, ESQUIRE
12 Appearing on behalf of the Defendant:
13 LEWIS, LONGMAN & WALKER, P.A.
515 North Flagler Drive, Suite 1500
14 West Palm Beach, Florida 33401
561-640-0820
BY: ANDREW BAUMANN, ESQUIRE
16
17
18
19
20
21
22
23
24
25
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1 (Thereupon, the following proceedings were
2 had:)
3 THE COURT: Rick Scott for Senate v. Susan --
4 is it Bucher?
5 MR. BAUMANN: Bucher, Your Honor.
6 THE COURT: Since you thought you were
7 skedaddling out of here, I didn't think you were
8 going to be on this.
9 MR. BAUMANN: I wasn't aware that we had a
10 hearing on this case as well.
11 THE COURT: Are you familiar with it?
12 MR. BAUMANN: We received a copy of a motion.
13 I haven't seen a complaint last night.
14 THE COURT: Last night, okay.
15 MS. RODZ: Good morning, Your Honor.
16 THE COURT: Good morning. And your name,
17 ma'am?
18 MS. RODZ: Aliette Rodz from Shutts & Bowen.
19 I'm here together with my co-counsel -- I thought
20 he was next to me, sorry.
21 MR. GIBSON: Good morning, Your Honor. Ben
22 Gibson.
23 MS. RODZ: With my colleague, Ben Gibson.
24 THE COURT: Good morning.
25 MS. RODZ: And Jason Gonzalez is here today
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1 as well with me and co-counsel, Mr. Zimmerman.
2 THE COURT: Good morning.
3 MS. RODZ: Your Honor, we served the motion
4 last night together with the complaint in the same
5 email. We also sent it via fax. We also got a
6 call from the Court this morning with regard to
7 the notice of hearing to be sent out. We sent
8 that as well by email and by fax. We have been
9 diligently trying to obtain the summons to be able
10 to serve formally, but we certainly have reached
11 out.
12 THE COURT: There he is. Serve him.
13 MS. RODZ: That's right. If opposing counsel
14 has the motion, he has the complaint because they
15 were in the same email.
16 MR. BAUMANN: Actually, Your Honor, I
17 received the motion sort of through a third hand
18 back channel and I was looking for the complaint
19 and I'm not -- simply not seeing it here, but Your
20 Honor is free to proceed --
21 THE COURT: Do you have a copy? Do you want
22 five minutes to read the complaint?
23 MR. BAUMANN: Do you have a copy? Thank you.
24 MS. RODZ: Yes, of course. I'm handing my
25 colleague here a copy of the motion as well.
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1 MR. BAUMANN: I've seen the motion and the
2 memorandum of law.
3 MS. RODZ: Well, if you want the copy, it's
4 yours.
5 MR. BAUMANN: Thank you.
6 THE COURT: They're very similar.
7 MS. RODZ: Yes.
8 THE COURT: Let me know whenever you're
9 ready.
10 MR. BAUMANN: For the record, Your Honor,
11 somebody else had forwarded me the motion because
12 they had seen it, I think, out of the press or
13 something. I was looking for the complaint.
14 It appears that the eService portal -- it was
15 served on Ms. Bucher herself, not upon me. So if
16 you can forgive me. I'm just seeing this for the
17 first time. Ms. Bucher didn't apparently see it
18 or advise me that she received a copy of it.
19 THE COURT: Okay.
20 MS. RODZ: We also called this morning, Your
21 Honor, just so the Court is aware to the
22 supervisor of election's offices seeking to
23 confirm and we also emailed and faxed it, but it's
24 quite simple. I'm happy to --
25 THE COURT: The scary thing of all, counsel,
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1 is I think even if you weren't here, I could
2 proceed based on the affidavit.
3 MS. RODZ: Yes.
4 THE COURT: Due process.
5 MR. BAUMANN: Go ahead, Your Honor.
6 THE COURT: He says it with enthusiasm. We
7 can't hear that on the record, right, the
8 enthusiasm.
9 MS. RODZ: Your Honor, this is a pretty
10 straightforward matter. 101.5614, I'm going to
11 start with that. If any absentee ballot is
12 physically damaged so that it cannot properly be
13 counted by the automatic tabulating equipment --
14 and this is 5(a), Your Honor, a true duplicate
15 copy shall be made of the damaged ballot in the
16 presence of witnesses, this is the key fact at
17 issue here today, and substituted for the damaged
18 ballot.
19 Then the other issue, likewise, a duplicate
20 ballot shall be made of an absentee ballot
21 containing an overvoted race or a marked absentee
22 ballot in which every race is undervoted, which
23 shall include all valid votes as determined --
24 here is the key language again, as determined by
25 the canvassing board based on rules adopted by the
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1 division pursuant to 102.166.
2 All duplicate ballots shall be clearly
3 labeled bear a serial number, which shall be
4 recorded on the defective ballot, and be counted
5 in lieu of the defective ballot.
6 We have had -- Shutts & Bowen has had on
7 behalf of the Republican Party and Rick Scott for
8 Senate, counsel 24/7 at the supervisor of
9 election's offices in order to do two things, be
10 able to bear witness in accordance with the
11 statute as to the duplicate copies being made.
12 That has not been afforded to us, which is a
13 direct violation of the statute.
14 With regard to that --
15 THE COURT: Okay.
16 MS. RODZ: Okay. Sure.
17 THE COURT: So let's take it one at a time.
18 MS. RODZ: Perfect.
19 THE COURT: So you allege in your affidavit
20 that when the supervisor of election is reviewing
21 the damaged ballots and making duplicate copies,
22 that there are not witnesses present.
23 Now, I'm sure you will agree with me that --
24 so this is a PAC that you represent today?
25 MS. RODZ: I represent -- yes, it's a
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1 campaign, the federal campaign committee.
2 THE COURT: The federal campaign committee
3 for Rick Scott.
4 MS. RODZ: Correct.
5 THE COURT: So you would agree that when it
6 says there has to be witnesses to the duplicating
7 of these damaged ballots, that I certainly could
8 find no law that defines witnesses, could you?
9 MS. RODZ: No, Your Honor, but if there's a
10 witness, there's a witness. There is no witness.
11 THE COURT: How do you know?
12 MS. RODZ: Because we've been there 24/7. We
13 have been seeing -- so, for example, if I'm
14 standing, if I may, Your Honor?
15 If I'm standing here and you're writing over
16 there, I can't see what you're writing and that's
17 what's happening. I am standing right here and
18 you are right there doing all of these duplicates,
19 and I can't see if you are actually duplicating
20 the copy. That is the presence of a witness.
21 If I'm standing over you as I am with my dear
22 colleague here, if I'm standing over you and I'm
23 seeing it without touching anything, without
24 interrupting the process, I can confirm that you
25 are in fact in the presence of a witness properly
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1 duplicating a copy.
2 THE COURT: Okay. So who --
3 MS. RODZ: It's not taking place.
4 THE COURT: My question was, there is, as far
5 as I know, we've all been moving quickly here, so
6 I completely agree with you that when these
7 damaged ballots are reviewed and duplicated, that
8 there needs to be witnesses present. Nothing
9 could be clearer than the statutory language,
10 unless it's in the presence of witnesses.
11 Certainly, from your affidavit, it appears
12 that you're alleging that that witness should be
13 you or should be you or should be somebody from
14 Rick Scott's campaign. The best I could do is
15 come up with this idea that witnesses means
16 members of the public. So my query to you is
17 this.
18 First of all, wouldn't you agree that you or
19 somebody on behalf of Rick Scott for Senate isn't
20 necessarily -- you're not required to be there.
21 It just has to be a witness. Would you agree with
22 that?
23 MS. RODZ: Yes, Your Honor. If you look at
24 the first page of my motion, I say in the presence
25 of the Plaintiff and any other witnesses.
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1 THE COURT: Any other witnesses, so your
2 affidavit says that that is not happening. There
3 are no witnesses to --
4 MS. RODZ: That's correct.
5 THE COURT: The supervisor of elections,
6 herself, is just over there going oh, this one has
7 a water stain, I'm going to throw it away. This
8 one is bent, I'm going to throw it away, and
9 nobody is watching her do it.
10 Are you alleging that she's in some secret
11 room by herself reviewing these ballots, that
12 there's no witnesses?
13 MS. RODZ: Well, as I stated, as I tried to
14 demonstrate, and I don't know numbers. I'm not
15 good at math. I don't know how many feet there
16 are from you to me. Perhaps, the sheriff knows
17 that. I don't know, but I would tell you that
18 this is about the distance that we are dealing
19 with right now. So that's not of use.
20 THE COURT: What do you mean, where you --
21 MS. RODZ: Where I am standing to you or to
22 the court reporter --
23 THE COURT: And I'm the supervisor of
24 elections?
25 MS. RODZ: You are the staff on behalf of the
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1 supervisor of elections doing the copy. So if
2 this is -- if I'm the supervisor of elections on
3 staff and I'm making the copy from this paper to
4 this paper, you cannot see from where you're
5 sitting what I'm doing. I could be saying hmm,
6 that's not democratic, I really don't like it. I
7 should put republican. Let's vote for this one.
8 I'm not saying that that's happening, but I can't
9 confirm one way or the other. So it's of great
10 concern.
11 Now, I will also caution the Court that the
12 statute does not say in the presence of a witness.
13 It says in the presence of, plural, witnesses.
14 THE COURT: Right, but can we agree that the
15 definition of witnesses is nowhere to be found in
16 the law? That it doesn't say those witnesses must
17 be a representative from everybody who is on the
18 ballot, for example? It doesn't say that.
19 MS. RODZ: It does not say that. However,
20 you have an interested party here before this
21 Court seeking to be the witness and inviting the
22 democratic party to also join with us as
23 witnesses.
24 What we want is a fair and accurate vote as
25 the legislature has required, as the constitution
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1 has required, and this is not happening right now.
2 These are rules that are put in place for that
3 very process as I'm sure the Court understands.
4 THE COURT: So let me ask you this. Is that
5 a fair and accurate representation that these
6 damaged ballots are being reviewed by staff of the
7 supervisor of elections and that the witnesses are
8 sitting some 15 feet away and they're witnessing
9 is only that somebody's got a pen in hand and
10 they're duplicating their interpretation of what
11 they see on the ballot?
12 MR. BAUMANN: That would depend on your
13 definition of witness, Your Honor. Ballots are
14 duplicated by teams of staff. So, essentially,
15 one member has the damaged or the original ballot.
16 Another member has a clean ballot.
17 One person is reading off and watching that
18 this person is filling it in and then they switch
19 the ballots. And that person reads off the filled
20 in ballot while the other person follows the
21 original ballot to make sure it is correctly
22 filled in. That happens in every duplication
23 ballot. It's always witnessed. There is never an
24 instance where somebody is sitting alone --
25 THE COURT: Always witnessed by whom?
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1 MR. BAUMANN: By another staff member of the
2 supervisor of election.
3 THE COURT: So in other words, the supervisor
4 of elections witnesses the supervisor of
5 elections.
6 MR. BAUMANN: Yes, but staff members.
7 THE COURT: I know it's staff members, but
8 it's still the supervisor of elections. It's not
9 -- I man you're saying then you believe the
10 definition is the witness could be somebody from
11 -- because wouldn't we agree to this, that the
12 supervisor of elections couldn't go put herself in
13 a private room with all of the damaged ballots and
14 be unilaterally making that decision, right?
15 MR. BAUMANN: All by herself?
16 THE COURT: Right.
17 MR. BAUMANN: No.
18 THE COURT: So then you're telling me that
19 your interpretation of to witness -- to have the
20 procedure witnessed in the presence of witnesses,
21 that that would be satisfied by having a member of
22 her staff witness it?
23 MR. BAUMANN: It's at least two members of
24 staff.
25 THE COURT: But it's still the supervisor of
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1 elections in my opinion.
2 MR. BAUMANN: Okay.
3 THE COURT: You're witnessing your own work.
4 When I do that, I give myself an A plus all the
5 time.
6 MR. BAUMANN: Respectfully, Your Honor, what
7 they are describing is a separate procedure that's
8 laid out for things like manual recounts where you
9 have counting teams and the statute expressly
10 speaks of members of each candidate being able to
11 stand over the counting teams and lodge an
12 objection to a vote or something like that. The
13 statute just says witnesses. It does not say
14 anything --
15 THE COURT: So you would like me to narrowly
16 construe that, the motion's narrow definition of
17 to be witnessed because in essence --
18 MR. BAUMANN: I think it's actually known as
19 fraud.
20 THE COURT: -- the supervisor of elections is
21 witnessing their own work.
22 MR. BAUMANN: Witnessing their own work.
23 THE COURT: Right. I mean because you're
24 telling me one staff member is filling it out and
25 the staff member is witnessing, then they switch
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1 sides and swap sides, and then they're witnessing
2 each other's work, but they're all from the
3 supervisor of elections.
4 MR. BAUMANN: Okay.
5 THE COURT: Right?
6 MR. BAUMANN: They are all supervisor of
7 election employees, correct. They're not members
8 of the Scott campaign or the Nelson campaign
9 allowed back into the -- amongst the ballots into
10 the --
11 THE COURT: Inner sanctum.
12 MR. BAUMANN: Well, it's an open warehouse.
13 THE COURT: I know.
14 MR. BAUMANN: You've been there, I'm sure.
15 And now -- but it simply says witness. What
16 they're suggesting, I guess, is that we need to
17 get someone else to stand over these people at
18 3:00 in the morning and watch them --
19 THE COURT: There would be lots of
20 volunteers, trust me, there would be.
21 MS. RODZ: Time would no issue, Your Honor.
22 The easy remedy at this juncture because we have
23 stood ready, willing, and able to simply be in the
24 presence of witnesses, be that witness, but it has
25 not been allowed.
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1 The easy remedy is to obtain -- and we
2 understand that they have the original ballot and
3 they have the duplicate ballot that has been
4 prepared --
5 MR. BAUMANN: That's required by law.
6 THE COURT: Right.
7 MS. RODZ: Yes, but sometimes, the law is
8 broken. So what I'm saying is it's been complied
9 with as I understand --
10 MR. BAUMANN: I object to the statement.
11 MS. RODZ: So what I'm proposing -- what we
12 are proposing to make it smooth and quick, which
13 we certainly can do before 12:00 noon tomorrow,
14 which is the deadline, is to start the process of
15 looking at the original and the duplicate and
16 allow us to see that, in fact, the original was
17 transposed to the duplicate in a proper fashion.
18 If, in fact, there is one that is not, what
19 we're saying is put that one aside and allow the
20 canvassing board, which is what the statute calls
21 for on any issues, allow the canvassing board to
22 review those.
23 Let's start that process immediately. If
24 there's any issues, we put those aside. The
25 minute those are all concluded, we give them to
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1 the canvassing board. Let the canvassing board do
2 their job as the legislature intended them to do.
3 That takes us to the next step, Your Honor, if I
4 may?
5 In the statute, it says --
6 THE COURT: Wait. So you're arguing that
7 what you want to do at this juncture is that Rick
8 Scott for Senate will come in and review all of
9 the damaged ballots and that you're going to make
10 a pile of those that you think were not accurately
11 duplicated or you want a sample. What is it that
12 you're requesting?
13 MS. RODZ: What we're requesting is that the
14 staff have available the duplicate and the
15 original, which are together, go through the
16 process allowing us to oversee in the presence of
17 witnesses and make sure that they're accurate.
18 And if there is any that is not accurate or
19 questionable, that will be put aside and provided
20 to the canvassing board to determine, not for the
21 supervisor of elections.
22 THE COURT: My question is what, you want to
23 look at every single one that was deemed damaged
24 and duplicated?
25 MS. RODZ: Yes, Your Honor.
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1 THE COURT: And how many are there?
2 MS. RODZ: How many damaged ballots are
3 there? I think there's probably like 2,000 or so.
4 Do we know the exact number?
5 MR. BAUMANN: It's probably more than that,
6 Your Honor.
7 MS. RODZ: This is not a hard task, Your
8 Honor. As you were stating before, we have --
9 within 48 hours, you have to do certain tasks. We
10 certainly can do it. We certainly can have the
11 manpower to do it. What we need to have is a
12 proper and accurate election. So we're trying our
13 best to do that.
14 We've been there ready, willing, and able to
15 -- but this is a good alternative. We're not
16 asking them to redo the job. We're just asking
17 them to allow us to see that the job has been done
18 accurately.
19 THE COURT: What's your position on giving
20 them the ability to inspect the accuracy of the
21 duplication process?
22 MR. BAUMANN: I'm not sure that it can be
23 accomplished immediately as they're suggesting,
24 Your Honor. We have a noon deadline for tomorrow
25 to complete and report our results.
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1 The duplication process that they're
2 referring to, ballots that the canvassing board
3 checks off on and makes note too when they're
4 duplicated. They're brought back to the
5 canvassing board and the canvassing board looks at
6 the duplication again.
7 THE COURT: Wait. What?
8 MR. BAUMANN: Yeah.
9 THE COURT: So when this witnessing is going
10 on and they're duplicating the damaged ballots --
11 MR. BAUMANN: So the canvassing board finds
12 --
13 THE COURT: What's taken before the
14 canvassing board?
15 MR. BAUMANN: The original ballot.
16 THE COURT: The damaged ballot.
17 MR. BAUMANN: Well, it may be an overvote, an
18 undervote. The ballot didn't run through the
19 machine properly, whatever it is.
20 THE COURT: Yeah.
21 MR. BAUMANN: And the canvassing board looks
22 at it and says either this one is clear, the
23 ballot just didn't run, go ahead and duplicate it,
24 et cetera, and they're brought back to the
25 canvassing board and looked at again. And they
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1 take both of them and they slide them forward and
2 you can watch one canvassing board member read it
3 off.
4 MS. RODZ: Every single one, Your Honor, I
5 don't believe is accurate because we were there.
6 We had spoken to the supervisor of elections while
7 we had been there. I don't believe that's an
8 accurate statement as to every single one.
9 I believe that they have been picking and
10 choosing which ones are going to the canvassing
11 board and that's improper as well, which is part
12 of our complaint and our emergency motion under
13 the second prong of the very same statute.
14 MR. BAUMANN: So the ones that go to the
15 canvassing board that is the process, Your Honor.
16 I'm not sure what -- I wasn't privy to whatever
17 she spoke to the supervisor about.
18 The other one is it's my understanding that
19 when you have a clear ballot that just won't run,
20 they just -- they duplicate it in the presence of
21 witnesses, but the ones that there's questions
22 over that requires, essentially, gee, I'm not
23 really sure what was meant here or something like
24 that.
25 The canvassing board makes that
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1 determination. They're written on all these
2 stickies. They go back, they're duplicated, and
3 then they're brought back. In fact, that's part
4 of what we have to do today is go back over the
5 ballots that were duplicated that were canvassed
6 by the board two nights ago.
7 MS. RODZ: May I respond, Your Honor?
8 THE COURT: Yes.
9 MS. RODZ: The supervisor of elections and
10 her staff are not allowed to look at the intent of
11 a voter. The minute there's an issue, that needs
12 to be set aside immediately provided in the stack
13 that goes to the canvassings board.
14 What we understand and what we have presented
15 to the Court within the four corners of our
16 verified complaint is that they are picking and
17 choosing. They are making that determination and
18 then they're selecting which ones are going to the
19 canvassing board.
20 THE COURT: Because you're making this
21 allegation.
22 MS. RODZ: Yes.
23 THE COURT: So you're saying that you believe
24 the supervisor of elections is throwing out
25 overvote and undervotes without having to go
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1 before the canvassing board.
2 MS. RODZ: It's making the determination
3 without having to go before the canvassing board
4 on. Any one that is not clear and unequivocal,
5 they have to take it before the canvassing board.
6 They cannot look at intent. They cannot determine
7 the intent of that voter.
8 THE COURT: Is that true? Is the supervisor
9 of elections unilaterally making a -- because I
10 find that troublesome. I mean that's a bold
11 assertion and if the supervisor of elections is
12 looking at the ballots and saying overvote,
13 undervote, overvote, and putting them in a big
14 pile without the canvassing board reviewing, then
15 that's a problem.
16 MR. BAUMANN: It's my understanding that they
17 are some ballots where rather than checking in the
18 arrow, the name in the circle --
19 THE COURT: Sure.
20 MR. BAUMANN: -- something like that, that
21 those do not go in front of the canvassing board.
22 When you have multiple -- when you actually have
23 to look at, gee, they crossed this out or they did
24 this or something like that, those go in front of
25 the canvassing board.
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1 MS. RODZ: What you're hearing is
2 determinations and of course, since we have not
3 been able to witness and this has not occurred in
4 the presence of witnesses, we can't tell you if
5 that has been done accurately and if, in fact,
6 this is the type of determination that's been
7 made, which is why we're before the Court today.
8 It's very important that we be able to do
9 this immediately. It can be done. It can
10 certainly be done in time. We would certainly
11 take all efforts necessary to participate.
12 MR. BAUMANN: The other thing that I would
13 add to that is that the duplication of ballots,
14 Your Honor, is done. So I don't know what we're
15 -- in terms of the injunctive relief here, it's
16 sort of moot. That part of the canvassing has
17 been completed.
18 They're looking at, it's my understanding,
19 the original ballots today and some duplicated
20 ballots.
21 MS. RODZ: Your Honor, it's not moot. The
22 whole reason why we're asking for us to be allowed
23 to look at what's actually been duplicated and the
24 original is because we know that it has been done.
25 The supervisor of elections did tell us, oh, we
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1 did the whole job already.
2 So we're not asking them to do it again.
3 We're saying well, we wanted to look at it. We're
4 allowed to look at it under the statute and allow
5 us that process. We need to ensure that this is
6 accurate and we're ready to start immediately.
7 THE COURT: Do you have any idea how many
8 where there was just a decision made that they
9 were overvoted or undervoted and the canvassing
10 board didn't have an opportunity to make that
11 determination, but rather it was just made by the
12 supervisor or by a staff member?
13 MR. BAUMANN: Truthfully, Your Honor, I do
14 not have an estimate of what number of those did
15 not come to the canvassing board, but the
16 canvassing board sees, my assumption is, most of
17 them, but in terms of --
18 THE COURT: Well, I was on the canvassing
19 board and we certainly, at that time, looked at
20 everything. We looked at everything. We didn't
21 have some staff member determining if it was an
22 undervote and not have -- the canvassing board had
23 to agree that it was an overvote or an undervote.
24 So I'm really puzzled if that's the practice
25 now that some staff member is making that
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1 determination and not the canvassing board.
2 That's troubling.
3 MS. RODZ: This is why we're here, Your
4 Honor. If not, we would not be here. You're
5 absolutely right. If the canvassing board would
6 be allowed to do its job, but the canvassing board
7 will not receive those that have been determined
8 by the supervisor of elections, which is the very
9 problem.
10 We need to be able to have full compliance
11 with the statute, ensure that the canvassing board
12 has its opportunity to make that determination.
13 That is not for the supervisor of elections and
14 it's unequivocal under the statute.
15 THE COURT: So what are you asking for?
16 MS. RODZ: Okay. So what I would like to be
17 able to do and I have it in the very first section
18 of my motion is to have the supervisor staff
19 review the duplicate ballot together with the
20 original damaged ballot in the presence of the
21 Plaintiff and any other witness. Certainly --
22 THE COURT: No, that's not going to happen.
23 We're not going to do that. I'm not going to
24 broaden the language, it must be in the presence
25 of witnesses to include they're going to have to
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1 start over from scratch with Rick Scott for Senate
2 looking over their shoulder on each of them.
3 Counsel raises a good point. This has been
4 done. I'm not sure that that wouldn't satisfy it
5 that it's witnessed. I don't like it. I don't
6 think it's best practices and this should have
7 been addressed long ago. I mean this has been
8 going on for some time with mail-ins and so forth.
9 So there should have been a motion that said
10 we're standing 15 feet away and we don't like it
11 and we want to be able to witness this duplication
12 process, but we're not going to start over again.
13 Particularly, since you cannot suggest to me that
14 this process that they have where they are
15 duplicating damaged ballots that it's just being
16 unilaterally done by one person. They do have a
17 witness.
18 MS. RODZ: Your Honor, you're hearing that
19 they do have a witness. We have not seen
20 witnesses and the four corners of our complaint
21 does not state that they have a witness.
22 In fact, they have staff members doing this
23 job. Again, if a staff member is doing its job
24 and this staff member, this staff member, and the
25 one that's next, I don't know that they're
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1 actually witnessing it to each other. There is no
2 verification on this side, but I will tell you --
3 THE COURT: But counsel has represented that
4 they do it in tandem and then they switch places.
5 So if that's not accurate -- I mean you're telling
6 me that you know that to be true that his
7 representation to me that the damaged ballot comes
8 in and that the other individual fills it out and
9 then they swap roles to make sure that they didn't
10 miss something.
11 MS. RODZ: I don't know that. This is an
12 argument that I'm hearing. I don't see a verified
13 action. I don't have a verified affidavit here by
14 someone saying that, but I don't know that.
15 I will tell you that we have been there 24/7
16 and we have not been seeing this, here, you review
17 this one and you review this one. We've been
18 seeing one person, another person, another person
19 doing a job and we have no idea what's being done.
20 We've been asking can we review them, can we
21 see them, and what we get is here, have a brisk
22 walk around the room and then come back.
23 THE COURT: Let me ask you this. When this
24 process is going on, is it really your position
25 that the entire public should be invited to come
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1 up and look over their shoulder to make sure that
2 it's being -- who would it be appropriate to stand
3 over their shoulder to see what they're doing?
4 Because we can all agree you're not allowed to
5 touch it and nobody is allowed to touch it except
6 for the supervisor of elections.
7 MS. RODZ: That's correct.
8 THE COURT: You cannot physically touch that
9 document. So, you know, I don't know that this is
10 best practices that the witness is another
11 individual that works at the supervisor of
12 elections, but what are you suggesting is the
13 remedy that we conduct it at the Palm Beach County
14 Convention Center and 98 people will put it on a
15 screen and 98 people, whoever wants to be a
16 witness can come in and do it?
17 MS. RODZ: Your Honor, what we wanted to have
18 is obviously have a witness. That has not
19 happened. A neutral witness has not -- and that's
20 implied by the statute.
21 THE COURT: It doesn't say a neutral witness,
22 does it?
23 MS. RODZ: No, but the fact that the
24 legislature drafted the fact that you're going to
25 have it in the presence of a witness --
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1 THE COURT: Let me ask you this. So have you
2 surveyed other circuits to determine whether or
3 not when this process is occurring in
4 Hillsborough, for example, that the supervisor of
5 elections is taking the damaged ballots and
6 duplicating them, that members of the public --
7 who are the witnesses in other circuits?
8 Is this a statewide practice or are they
9 doing something different here in Palm Beach
10 County?
11 MS. RODZ: In Broward and Hillsborough, we
12 have seen them providing all of the undervote and
13 overvote to the canvassing board, not like here.
14 And we have been able to oversee some of the
15 process.
16 THE COURT: Okay. Let's start with this. I
17 think it's perfectly reasonable that if members of
18 the supervisors of elections made a determination
19 on some of these damaged ballots that they were
20 not going to be reviewed by the canvassing board
21 -- that they have to be reviewed by the canvassing
22 board.
23 So if there is a pile -- can anybody tell me
24 unequivocally whether that there's such a -- I
25 don't know that anybody has convinced me one way
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1 or the other.
2 MS. RODZ: Your Honor, if I may? We can have
3 the canvassing board review them. That is a
4 proper mechanism. We don't have to be there. It
5 doesn't have to happen again. That way, the
6 Nelson campaign, the Scott campaign --
7 THE COURT: Did Nelson intervene or join
8 because I think they're long gone?
9 MS. RODZ: No, they have not, but it's fair.
10 We don't care one way or the other. We just want
11 the process to be followed in accordance with the
12 statute, but if the canvassing board receives them
13 all and does its job as it should be allowed to do
14 --
15 THE COURT: Do you wish to be heard on that
16 with regard to -- I find that if ballots were
17 determined to be undervotes or overvotes or -- and
18 that wasn't reviewed by the canvassing board, that
19 if that exists -- can you tell me that it does
20 exist? Do you think that that's true?
21 MR. BAUMANN: It's -- what I'm hearing is it
22 sounds like some of it is true.
23 THE COURT: Okay. So do you have any problem
24 with me saying that those have to be reviewed by
25 the canvassing board?
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1 MR. BAUMANN: That that discreet pile is
2 simply brought in front of the canvassing board?
3 THE COURT: For starters.
4 MR. BAUMANN: For starters, I guess we'll
5 have to do that if that's what you order, Your
6 Honor.
7 THE COURT: Okay.
8 MR. BAUMANN: As to simply the duplication
9 process, the statute says witness. It's my
10 understanding that that is the practice pretty
11 much throughout in terms of the simple duplication
12 process of a ballot is that it's done by a pair or
13 even a trio of supervisors.
14 I can't speak to what the person who signed
15 the affidavit thought they were seeing or not
16 seeing, but I can tell you that the process of
17 duplicating ballots is conducted by at least two
18 people in every instance.
19 THE COURT: In every instance.
20 MR. BAUMANN: In every instance.
21 THE COURT: Back to my question to you. Do
22 you think that that procedure is different in
23 other circuits?
24 MS. RODZ: Yes, I do.
25 THE COURT: Not do you think, do you know?
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1 Can you represent to me as an officer of the court
2 that unequivocally in different circuits when they
3 construe to be witnessed, that there are neutral
4 witnesses?
5 MS. RODZ: Well, we've even received -- in
6 Miami-Dade, we've received all of the provisional
7 ballots, all of the copies, I mean, once it's been
8 done. So yes, it is.
9 However, I will tell you --
10 THE COURT: Provisional. We're talking
11 damaged.
12 MS. RODZ: The damaged duplicate copies, yes,
13 we have confirmation --
14 MR. ZIMMERMAN: Your Honor, in Leon County, I
15 have personally been invited by the supervisor of
16 elections to stand and watch the duplication
17 process happen in past cycles. Anytime we've
18 asked for it, it has been done in the --
19 THE COURT: It sounds like a good time.
20 MR. BAUMANN: The question of how Leon County
21 does it doesn't go to the question of what the law
22 requires in terms of witnessing the duplication,
23 Your Honor.
24 MS. RODZ: Your Honor, witnessing does not
25 say I'm going to self-witness and I think the
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1 Court is correct and has it correct when I cannot
2 self-witness myself. So I take great issue and
3 it's greatly concerning the fact that there are
4 duplicate copies of thousands of ballots that we
5 don't know if they've been done properly.
6 Now, it doesn't say -- the legislature would
7 not have intended to add in the presence of
8 witnesses --
9 THE COURT: Hang on for a minute. So you're
10 telling me that they're done with that. The
11 canvassing board is done with that portion of it?
12 MS. RODZ: The canvassing board, no. The
13 supervisor of elections is done.
14 MR. BAUMANN: Well, the canvassing board is
15 looking at if they haven't already at this point
16 looked at the last remaining duplicated ballots
17 that were brought before them.
18 To the extent that there are other duplicated
19 ballots that were not brought before them, I can't
20 speak to that, Your Honor. But in terms of what's
21 left to go in front of the canvassing board, if
22 they haven't already canvassed them, they will be
23 canvassing them shortly, but there's no more
24 duplication of ballots occurring at the warehouse.
25 MS. RODZ: Is it my colleague's attestation
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1 to the Court that all duplicate ballots have been
2 given to the canvassing board because that would
3 be the first time that I hear such a statement?
4 MR. BAUMANN: No. I said that the ballots
5 that were presented back -- the last batch of
6 ballots to be presented back to the canvassing
7 board were -- when I left to come here, it
8 appeared that they were first up on the canvassing
9 board at 10:00 this morning.
10 It was my understanding that there were no
11 more duplicates for them to look at to make sure
12 that they were duplicated correctly. Those would
13 be ballots that the canvassing board reviewed and
14 then sent to be duplicated in accordance with the
15 law.
16 In terms of the other discussion of
17 duplication of a damaged ballot and things like
18 that, it's my understanding that there are no more
19 -- there is no more duplication occurring in the
20 supervisor's warehouse. All ballots have been
21 duplicated. There's nobody there in the teams
22 working to duplicate ballots anymore. That's
23 complete.
24 MS. RODZ: Your Honor, so I would
25 respectfully request that every duplicated ballot
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1 that the canvassing board has not yet reviewed be
2 given to the canvassing board. That would suffice
3 and that would do proper justice to the statute.
4 It would be reviewed by the canvassing board.
5 If the canvassing board has an issue, we
6 would have an opportunity to see that, to be
7 heard, and that would be the proper protocol
8 considering what has been done is not consistent
9 with the statute.
10 MR. BAUMANN: Your Honor, respectfully, it
11 seemed that we had two different issues going on
12 here. One was the witnessing of ballots and the
13 other one was the overvote or undervote, which was
14 a smaller subset of --
15 THE COURT: On that, I am ruling that any
16 undervote, overvote, any damaged ballot that the
17 supervisor of elections and I say unilaterally
18 meaning her or her employees determined to throw
19 out without review of the canvassing board must be
20 presented to the canvassing board for review.
21 MR. BAUMANN: You mean by it was rejected?
22 THE COURT: Yeah.
23 MR. BAUMANN: Okay. What about --
24 THE COURT: I'm puzzled that you're telling
25 me that some staff member is rejecting ballots
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1 without -- the statutory language is clear. That
2 determination should be made by the canvassing
3 board, not a staff member of the supervisor of
4 elections, to completely throw out a ballot.
5 I mean when I was on the canvassing board, we
6 looked at those very things, you know. Now that
7 we've got the line, people X, people circle,
8 people do all sorts of stuff, but that's not a
9 determination for a staff member.
10 MR. BAUMANN: A damaged ballot is not the
11 same thing as an overvote, undervote, voter
12 intent, Your Honor.
13 THE COURT: Well, they're all under the same
14 statute for --
15 MS. RODZ: For the canvassing board, that's
16 correct.
17 THE COURT: -- for purposes of the canvassing
18 board. What would a damaged ballot be that a
19 staff member would determine to throw out without
20 the review of the canvassing board?
21 MR. BAUMANN: No one would throw out a
22 damaged ballot. It would just be duplicated, Your
23 Honor.
24 THE COURT: I thought you had told me that
25 they were -- that the staff members without review
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1 of the canvassing board were putting overvotes and
2 undervotes in a pile over here without reviewing
3 the canvassing board.
4 MR. BAUMANN: No. They were duplicating them
5 onto clean ballots, Your Honor. No votes -- no
6 ballots have been thrown out, Your Honor.
7 THE COURT: Not thrown out, not counted, so
8 --
9 MR. BAUMANN: Yeah, but --
10 THE COURT: Listen to me.
11 MR. BAUMANN: Yes.
12 THE COURT: This is what I want to know
13 because what I heard earlier that you said that
14 sometimes people circled it or they clearly messed
15 up.
16 MR. BAUMANN: Correct.
17 THE COURT: Are you representing to me that
18 if somebody circled everything instead of drawing
19 the lines together that no determination was made
20 by anyone with what to do with that, that the
21 canvassing board made the determination? Is that
22 what you're telling me?
23 MR. BAUMANN: No. I'm saying that in some of
24 those instances where it was simply, they circled
25 the name by sort of connecting the arrow, that the
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1 ballot was simply duplicated correctly so that it
2 would read through the machine.
3 MS. RODZ: The key there, Your Honor, is
4 correctly. How do we know that? They're making a
5 determination --
6 MR. BAUMANN: By connecting the arrow.
7 MS. RODZ: The supervisor of elections is
8 making a determination that is not their job. The
9 canvassing board is the one that makes the
10 determination if there's something wrong.
11 THE COURT: I agree.
12 MR. BAUMANN: But you're also now delving
13 into a damaged ballot where there was no voter
14 intent, there was nothing. For whatever reason,
15 the card wouldn't run. Maybe because absentee
16 ballots sometimes --
17 THE COURT: And those were duplicated.
18 MR. BAUMANN: They were just simply
19 duplicated onto a card that would run.
20 MS. RODZ: But that's not the only reason.
21 There could be coffee that someone spilled over it
22 and then still mailed it and you can't even see
23 it.
24 There could be scratching on it. There could
25 be food marks on it that you don't know the
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1 answer. We don't know those responses and so for
2 us to sit here and simply hear well, it's just
3 duplicated. No, that's not enough. That's not
4 what the statute intended.
5 If the legislature intended there not to be
6 witnesses present, they would not have drafted
7 such language. I mean this is important.
8 MR. BAUMANN: We're mixing and matching
9 witnesses present from --
10 THE COURT: All over the map.
11 MS. RODZ: Well, there's two key issues, Your
12 Honor. The fact that the supervisor of elections'
13 staff is making determinations, I think the Court
14 is very clear on the fact that that's not accurate
15 -- that's not proper.
16 THE COURT: No, I didn't say that. I said it
17 was not best practices to witness your own work.
18 MS. RODZ: They're not allowed, Your Honor --
19 MR. BAUMANN: That was on the witnessing.
20 THE COURT: I know. Let's stick to one topic
21 at a time. With regard to the statutory
22 requirement that it be in the presence of
23 witnesses, I am convinced that there was a
24 witness, albeit another employee of the supervisor
25 of elections. That is simply not best practices.
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1 You have not convinced me that that's
2 illegal, that that's in contravention of the
3 statute because you haven't brought me anything
4 that says witness means it must be a neutral party
5 or it must be representatives of each of the
6 parties, the republican party, the democratic
7 party.
8 So it's certainly not best practices and they
9 should do something about that. That's wrong. So
10 as far as that goes, I'm not finding, based on
11 what I've heard, that there were not witnesses.
12 MS. RODZ: Your Honor, we filed a verified
13 complaint and a verified motion advising the
14 Court, as officers of this court, that they are
15 not witnesses. You have argued it. So I would
16 like to understand for purposes of the record what
17 has convinced the Court that there are witnesses?
18 The fact that I, myself, as you said, I'm
19 going to give myself an A plus, I did a good job,
20 and if my employer that's paying my payroll --
21 THE COURT: So when you filed this sworn
22 affidavit, you're telling me that you personally
23 stood there and watched and there were no
24 witnesses to determination by staff that a ballot
25 should be thrown out because you're the one who
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1 swore that this was true and accurate.
2 You stood there and you're telling me as an
3 officer of the court that you personally witnessed
4 staff of the supervisor of elections duplicating
5 without anyone up to and including someone else
6 from their office watching.
7 MS. RODZ: I'm telling you that Shutts &
8 Bowen because --
9 THE COURT: You are not Shutts & Bowen. You
10 swore that that was true. So I don't want to hear
11 about other people told me. Are you telling me
12 that you witnessed that, that there were no
13 witnesses?
14 MS. RODZ: I personally did not witness it.
15 I have had and I have been on the phone 24/7 from
16 8:00 a.m. until the time that they kick us out of
17 the West Palm Beach -- which they have kicked us
18 out of there.
19 Every single day from the beginning of this,
20 I have been on the phone with my colleagues at all
21 times and I have been told blow by blow. This is
22 my partner, an officer of the court as well, and
23 I'm here on behalf of my firm representing the
24 party, the federal campaign. That this is exactly
25 what has been transpiring. I have Kevin Rosen
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1 that has also been present, boots on the ground,
2 on the phone.
3 THE COURT: Why did you not come to the Court
4 when this was going on? Why did you wait until it
5 was all over but the crying to come to the Court
6 to say hey, we are standing here watching and
7 they're not in statutory compliance, there's no
8 witnesses to this?
9 Why wasn't a motion filed days ago when
10 everybody in your office was standing at the
11 window watching 15 feet away while people were
12 unilaterally making the decision?
13 Because really, what you asked for is for me
14 to require that they comply with the statute.
15 That there are witnesses. You want me to define
16 what that is, but it's done and over with. It's
17 already been counted. Whether it was witnessed or
18 not, that's in the past.
19 So why didn't you come and ask for a cure
20 when according to you, everybody in your office
21 was watching this wrong go down?
22 MS. RODZ: Your Honor, first of all, we don't
23 know what's not told to us. So first --
24 THE COURT: I thought they were on the phone
25 telling you. You were getting a blow by blow.
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1 They're not witnessing this.
2 MS. RODZ: No, no. First of all, there's
3 been three days of counting after the election.
4 So it's not three days ago. There has been
5 counting three days after the election took place
6 and if we're told -- we were not told that all of
7 them had been done.
8 We're being told that they're now receiving
9 from mail. They had mail being received from --
10 as to the military ballots that were mailed in.
11 There's 1,500 mailed in. We are only at the mercy
12 of whatever is told to us. We were not told oh,
13 we finished the job.
14 THE COURT: So you're seeking injunctive
15 relief and the deed is done. I can't give you an
16 injunction that says stop this right now, I order
17 that a witness be present and looking over the
18 shoulder. I can't order it. It's done.
19 MS. RODZ: Your Honor, we're not asking you
20 to order that a witness be present, but the
21 material is there. The original and the backup is
22 there.
23 By the way, the counting, which is noon
24 tomorrow, has not taken place. So how about if
25 this Court preserving justice allows us to see an
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1 overview, which is what we're asking. Allow us to
2 be a witness, to have a witness and if in fact,
3 there are 20,000, guess what, there will be a
4 different sender because this was improper. I
5 mean, this is a great injustice. This is the very
6 basis of an injunctive motion.
7 Now, where we tried is we tried to work with
8 the supervisor of elections. We try to remedy
9 before coming to court. I don't want to run to
10 court every time that there is an issue.
11 Most of the times, nine times out of ten, the
12 supervisor of elections works with the secretary
13 of state. We're able to get a resolution. We get
14 an opinion. They work with us. We hold hands.
15 We get it fixed. That's our first intent.
16 Our second intent after we've exhausted all
17 of those remedies is to come before this Court and
18 seek relief as a last remedy. We don't file
19 complaints and file causes of action and spend the
20 Court's time, which is a public expense, or our
21 time which is expensive also to the federal
22 campaign if it's not absolutely necessary --
23 THE COURT: I think it probably should have
24 been deemed absolutely necessary some three days
25 ago when they started doing this or when you were
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1 observing that nobody according to you, albeit not
2 you, that people were observing that there were no
3 witnesses.
4 It seems to me that that would have been a
5 rather urgent time to say we want this to stop
6 until such time that it can be witnessed.
7 MS. RODZ: Three days ago, we weren't told
8 no.
9 THE COURT: Stop. So what is it you're
10 asking? You want to review every single damaged
11 ballot. You want somebody from your law office to
12 come in and review every single damaged ballot.
13 MS. RODZ: No, Your Honor.
14 THE COURT: What do you want?
15 MS. RODZ: I want all the damaged ballots
16 that were duplicated and have not been given to
17 the canvassing board, give them to the canvassing
18 board.
19 THE COURT: Granted.
20 MS. RODZ: Great.
21 MR. BAUMANN: Okay.
22 THE COURT: Anything else?
23 MS. RODZ: Yes. Can we talk about the
24 undervote and overvote or did you grant that
25 already?
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1 THE COURT: I'm saying if anybody decided to
2 throw out a ballot for whatever reason that
3 somebody at the supervisor of elections witnessed
4 whether there was a witness or not a witness, if
5 anybody there said, this is an undervote, this is
6 an overvote, this is a circle, that if any of that
7 occurred without the final say being the
8 canvassing board that that must go to the
9 canvassing board for a decision.
10 MS. RODZ: Your Honor, may I say it
11 differently just to make sure that they have
12 direct instruction?
13 THE COURT: Yes.
14 MS. RODZ: I would propose that any over and
15 under that was not provided to the canvassing
16 board for its determination be provided. I think
17 that's a very clear -- so that they don't have to
18 determine which one did you do or not do.
19 THE COURT: Okay. Do you have any problem
20 with that?
21 MR. BAUMANN: We'll get it done, Your Honor.
22 THE COURT: Okay.
23 MS. RODZ: Would you us like to submit to you
24 an order?
25 THE COURT: Great.
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1 MS. RODZ: Okay. Will do. Thank you so much
2 for your time.
3 THE COURT: Anything else? Have a great day.
4 MS. RODZ: Thank you, Your Honor.
5 (The proceedings were concluded at 11:53
6 a.m.)
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1 C E R T I F I C A T E
2
3 STATE OF FLORIDA
4 COUNTY OF PALM BEACH
5
6 I, Anthony Curling, Reporter, certify that I
7 was authorized to and did report the foregoing
8 proceedings, and that the transcript is a true and
9 correct transcription of my notes to the
10 proceedings.
11 I further certify that I am not a relative,
12 employee, attorney, or counsel of any of the
13 parties, nor am I a relative or employee of any of
14 the parties' attorneys or counsel connected with
15 the action, nor am I financially interested in the
16 action.
17 Signed this 16th day of November, 2018.
18
19
20
<%3663,Signature%>
21 ________________________________
Anthony Curling, Reporter
22
23
24
25
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IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
RICK SCOTT FOR SENATE, CASE NO.: 502018CA014075XXXXMB
Plaintiff, DIVISION: AA
v.
PALM BEACH COUNTY SUPERVISOR
OF ELECTIONS, SUSAN BUCHER;
in her official capacity as Palm Beach
County Supervisor of Elections,
Defendant.
________________________________________/
ORDER ON PLAINTIFF’S VERIFIED EMERGENCY MOTION FOR A TEMPORARY
INJUNCTION
THIS MATTER came before the Court on November 9, 2018 on Plaintiff, Rick Scott
for Senate’s (“Plaintiff”) Verified Emergency Motion for a Temporary Injunction (“Motion”).
The Court has considered the Motion, Plaintiff’s Verified Complaint for Declaratory and
Injunctive Relief (“Complaint”), the parties’ arguments made at the November 9, 2018 hearing,
the case file, and the applicable law.
Plaintiff requests declaratory and injunctive relief as well as a temporary injunction. In
the Complaint, Plaintiff requests declaratory and injunctive relief regarding the manner in which
the Supervisor of Elections processed physically damaged, “overvoted,” and “undervoted”
absentee ballots. In the Motion, Plaintiff further seeks a temporary injunction ordering: (1) the
Supervisor’s staff review the duplicate ballot together with the original damaged ballot in the
presence of the Plaintiff and any other witnesses, require the objected to duplicate ballots in
question to be set aside for immediate review by the Canvassing Board once the review process
is complete of all physically damaged absentee ballots and duplicate ballots; and (2) to allow the
000085
Palm Beach County Canvassing Board to determine valid votes from “overvoted” and
“undervoted” absentee ballots.
After due consideration and in accordance with section 101.5614, Florida Statutes, it is
hereby
ORDERED that Defendant SHALL provide to the County Canvassing Board any
duplicate ballots and any “overvoted” or “undervoted” ballots that have not yet been provided to
the Board for its review no later than 10:00 a.m., Saturday, November 10, 2018.
DONE AND ORDERED at West Palm Beach, Florida, this 9th day of November 2018.
_____________________________
KRISTA MARX
Circuit Judge
Copies furnished to:
Aliette Rodz, Esq.
(Counsel for Rick Scott For Senate)
200 South Biscayne Blvd., Suite 4100
Miami, FL 33131
Email: [email protected]
Andrew J. Baumann, Esq.
(Counsel for Palm Beach County Supervisor of Elections)
515 N. Flagler Dr., Ste. 1500
West Palm Beach, FL 33401
Email: [email protected]
Jason Zimmerman, Esq.
(Counsel for Rick Scott for Senate)
301 E. Pine Street
Orlando, FL 32801
Email: [email protected]
000086
01060084-2
IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
RICK SCOTT FOR SENATE,
Plaintiff,
v.
SUSAN BUCHER, solely in her capacity
as Supervisor of Elections of Palm Beach
County, Florida
Defendant.
/
Case No.: 502018CA014075XXXXMB
Division: Krista Marx
EMERGENCY MOTION FOR RECONSIDERATION, STATUS CONFERENCE,
AND EMERGENCY STAY
COMES NOW, Defendant, SUSAN BUCHER, solely in her capacity as Supervisor of
Elections of Palm Beach County, Florida (Defendant Bucher), by and through her undersigned
counsel, and files this Emergency Motion for Reconsideration, Status Conference, and Emergency
Stay, in support thereof states as follows:
1. Plaintiff’s Emergency Motion for Temporary Injunction and Verified Complaint for
Declaratory and Injunctive Relief (Emergency Motion) was filed with the Court at 7:39 pm last night,
November 8, 2018. The Plaintiff seeks declaratory and injunctive relief concerning the canvassing
of over-voted and under-voted absentee ballots during the election and the preparation of
duplicated damaged ballots.
2. Defendant Bucher was provided a copy of the suit at 9:24 pm last night, November
8, 2018. A copy was not provided to the undersigned, Defendant Bucher’s longtime counsel of
record, by any means. In fact, Plaintiff’s counsel had been present during the canvassing and was
aware the undersigned was counsel for Defendant Bucher.
Filing # 80630882 E-Filed 11/09/2018 03:55:15 PM
000087
Rick Scott for Senate v. Susan Bucher, et al.
Case No. 502018CA014075XXXXMB
Emergency Motion for Reconsideration, Status Conference and Emergency Stay
01060084-2 2
3. At 9:44 am, today, November 9, 2018, Plaintiff served Defendant Bucher, once
again failing to provide any copy or notice to the undersigned, with a Notice of Hearing, noticing
Plaintiff’s Emergency Motion for a hearing 45 minutes later at 10:30 am. In fact, the summons for
Defendant Bucher was not issued until 11:50 am, November 9, 2018, which is attached hereto as
Exhibit A.
4. The undersigned attended a separate General Election-related matter at 10:30 am on
November 9, 2018, only to be informed that a second hearing had been scheduled in the above-
referenced matter. The undersigned advised the Court that he was unaware of the hearing in this
matter and had not been provided or seen the Emergency Motion.
5. At the hearing, Plaintiff relied on an affidavit. However, the undersigned had not
seen an affidavit prior to the hearing, no copy of the affidavit was provided at the hearing, and it does
not appear that an affidavit was attached to any of Plaintiff’s pleadings.
6. Due to the immediacy of the hearing on Plaintiff’s Emergency Motion and the
ongoing canvassing of the November 6, 2018, General Election, Defendant was not able to be present
at the hearing to provide the Court with insight into the feasibility of Plaintiff’s requested relief.
7. At the conclusion of the hearing, the Court ordered that over-voted and under-voted
ballots which had not been presented to the Canvassing Board, but which instead had been
processed and duplicated by staff, be presented to the Canvassing Board by 10:00 a.m. tomorrow,
November 10, 2018.
8. The undersigned was unaware of how many absentee ballots were at issue or how
long it would take to locate said ballots and present them to the Canvassing Board, but committed to
the Court to comply with the Court’s order.
000088
Rick Scott for Senate v. Susan Bucher, et al.
Case No. 502018CA014075XXXXMB
Emergency Motion for Reconsideration, Status Conference and Emergency Stay
01060084-2 3
9. Upon return to the ongoing canvass, the undersigned was informed that nearly all
duplicate ballots (whether directly presented to the Canvassing Board or otherwise processed by
the Supervisor’s staff) have already been intermixed into the stream of ballots and are already
included in the vote tally. The undersigned has been informed that it is not possible to determine
which duplicate ballots were presented to the canvassing board and which duplicate ballots were
processed by staff or to separate the latter from the former. The undersigned was further advised
that it is physically impossible to locate, separate and re-canvass the ballots at issue before the
noon statutory deadline tomorrow, November 10, 2018, for certifying the election results to the
Department of State.
10. Accordingly, it is necessary to re-address the Court’s ruling in this case on an
emergency basis given the 12:00 p.m. deadline tomorrow, November 10, 2018, for certifying
election results to the Department of State. The Defendant respectfully requests an emergency
hearing either in person or via telephone to address the inability to meet the Court’s ruling and
complying with the statutory deadline for certifying results.
WHEREFORE, Defendant, SUSAN BUCHER, solely in her capacity as Supervisor of
Elections of Palm Beach County, Florida, respectfully requests that this Court reconsider its prior
ruling, allow the parties to come before the Court on alternative relief, and stay this proceeding until
after the 12:00 pm deadline on November 10, 2018, for certifying election results to the Department
of State.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was served via the
Florida Court’s E-filing Portal on this 9th day of November, 2018 to:
000089
Rick Scott for Senate v. Susan Bucher, et al.
Case No. 502018CA014075XXXXMB
Emergency Motion for Reconsideration, Status Conference and Emergency Stay
01060084-2 4
Aliette D. Rodz, Esquire
Shutts & Bowen LLP
200 S. Biscayne Blvd, Suite 4100
Miami, FL 33131
(305) 347-7342
Email: [email protected]
Attorney for Plaintiff
George T. Levesque, Esquire
Leslie Arsenault Metz, Esquire
Jason Zimmerman, Esquire
Jeff Aaron, Esquire
GrayRobinson, P.A.
515 North Flagler Drive, Suite 1425
West Palm Beach, FL 33401
(561) 268-5727
Email: [email protected]
/s/ Andrew J. Baumann
Andrew J. Baumann
Florida Bar No. 0070610
Primary Email: [email protected]
Secondary Email: [email protected]
Rachael B. Santana
Florida Bar No. 107677
Primary Email: [email protected]
Secondary Email: [email protected]
Lewis, Longman & Walker, P.A.
515 North Flagler Drive, Suite 1500
West Palm Beach, Florida 33401
Telephone: (561) 640-0820
Facsimile: (561) 640-8202
NATALIE A. KATO
Florida Bar No. 87256
Primary email: [email protected]
Secondary email: [email protected]
Lewis, Longman & Walker, P.A.
315 South Calhoun Street, Suite 830
Tallahassee, FL 32202
Telephone: (850) 222-5702
Counsel for Defendants
000090
EXHIBIT "A"
Filing# 80604174 E-Filed 1 1/09/2018 11:50:56 AM
IN THE CIRCUIT COURT OF THE 1 5™JUDICIAL CIRCUIT, IN AND FORPALM BEACH COUNTY, FLORIDA
CASE NO. 50-201 8-CA-014075
RICK SCOTT FOR SENATE,
Plaintiff,
v.
SUSAN BUCHER, solely in her capacity as
Supervisor of Elections of Palm Beach County,
Florida,
Defendant.
SUMMONS
THE STATE OF FLORIDA
TO EACH SHERIFF OF THE STATE:
YOU ARE COMMANDED to serve this summons and a copy of the Complaint forDeclaratory & Injunctive Relief and Emergency Motion for Temporary Injunction in this actionon Defendant:
TO: SUSAN BUCHER, solely in her capacity as
Supervisor of Elections of Palm Beach County, Florida
240 South Military Trail
West Palm Beach, FL 33415
'"ǤS:
IMPORTANT
Each Defendant is required to serve written defenses to the Complaint on PlaintiffsAttorneys, Aliette D. Rodz, Esq., c/o Shutts & Bowen LLP, 200 Biscayne Blvd, Suite 4100,Miami, FL 33131, within 20 days after service of this summons on Defendant, exclusive of theday of service, and to file the original of the defenses with the Clerk of this Court at Circuit CivilDivision of Palm Beach County, 205 North Dixie Highway, West Palm Beach, Florida 33401either before service on Plaintiff s attorneys or immediately thereafter. If you fail to do so, adefault will be entered against you for the relief demanded in the Complaint.
SHARON R. BOCKNov 09 2018DATED: ,2018
Clerk of the Court, Palm Beach County
§1111(COURT SEAL)
Deputy ClerkJ®
JOSIE LUCCE
EXHIBIT "A"FILED: PALM BEACH COUNTY, FL, SHARON R. BOCK, CLERK, 11/09/2018 11:50:56 AM
000091
IMPORTANTE
Usted ha sido demandado legalmente. Tiene veinte (20) dias, contados a partir del recibode esta notificacion, para contestar la demanda adjunta, por escrito, y presentarla ante estetribunal. Una llamada telefonica no lo protegera; si usted desea que el tribunal considere sudefensa, debe presentar su respuesta por escrito, incluyendo el numero del caso y los nombres delas partes interesadas en dicho caso. Si usted no conlesta la demanda a tiempo, pudiese perder elcaso y podria ser despojado de sus ingresos y propiedades, o privado de sus derechos, sin previoaviso del tribunal. Existen otros requisitos legales. Si lo desea, puede usted consultar a unabogado immediatemente. Si no conoce a un abogado, puede llamar a una de las oficinas deasistencia legal que aparecen en la guia telefonica.
Si desea responder a la demanda por su cuenta, al mismo tiempo en que presenta su
respuesta ante el tribunal, debera usted enviar por correo o entregar una copia de su respuesta a lapersona denominada abajo como "Plaintiff/Plaintiffs Attorney." (Demandate o Abogado delDemanadante).
IMPORTANT
Des poursuites judiciaries ont ete entreprises contre vous. Vous avez 20 jours consecutifsa partir de la date de l'assignation de cet'te citation pour deposer une reponse ecrite a la plainteci-jointe aupres de ce Tribunal. Un simple coup de telephone est insuffisant pour vous protegar;vous etes oblige de deposer votre reponse ecrite, avec mention du numero de dossier ci-dessus etdu nom des parties nommees ici, si vous souhaitez que le Tribunal entende votre cause. Si vousne deposez pas votre reponse ecrite dans le relai requis, vous risquez de perdre la cause ainsi que
votre salaire, votre argent, et vos biens peuvent etre saisis par la suite, sans aucun preavisulterieur du Tribunal. II y a d'autres obligations juridiques et vous pouvez requerir les services
immediats d'un avocat. Si vous ne connaissez pas d'avocat, vous pourriez telephoner a unservice de reference d'avocats ou a un bureau d'assistance juridique (figurant a l'annuaire detelephones).
Si vous choisissez de deposer vous-meme une reponse ecrite, il vous faudra egalement,en meme temps que cette fonnalite, faire parvenir ou expedier une copie au carbone ou une
photocopie de votre reponse ecrite au "Plaintiff/Plaintiffs Attorney" (Plaignant ou a son avocat)nomme ci-dessous.
Plaintiffs Attorney:
ALIETTE D. RODZ, ESQ.
PRIMARY: [email protected]
SECONDARY: [email protected]
Shutts & Bowen LLP
200 Biscayne Blvd., Suite 4100
Miami, Florida 33131
305-358-6300
000092
IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
RICK SCOTT FOR SENATE,
Plaintiff,
v.
SUSAN BUCHER, solely in her capacity as
Supervisor of Elections of Palm Beach
County, Florida,
Defendant.
CASE NO. 502018CA014075
JUDGE KRISTA MARX
NOTICE OF FILING HEARING TRANSCRIPT OF NOVEMBER 10, 2018
Plaintiff, RICK SCOTT FOR SENATE, through counsel, hereby gives notice of filing
the hearing transcript of the hearing which took place before the Honorable Krista Marx on
November 10, 2018.
Dated: November 13, 2018
Respectfully submitted,
/s/ Aliette D. Rodz
Aliette D. Rodz, Esq.
Florida Bar No. 0173592
Email: [email protected]
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
Filing # 80752809 E-Filed 11/13/2018 07:41:48 PM
000093
Notice of Filing Hearing
Transcript of November 10, 2018
CASE NO. 502018CA014075
2
Email: [email protected]
Leslie Arsenault Metz, Esq.
Florida Bar No. 98865
Email: [email protected]
Jason Zimmerman, Esq.
Florida Bar No. 104392
Email: jason.zimmerman@gray-
robinson.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 true and correct copy of the foregoing was served via E-
Portal Electronic Filing this 13th day of November, 2018.
000094
·1· · ·IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT· · · · · · · IN AND FOR PALM BEACH COUNTY, FLORIDA·2
·3· ·RICK SCOTT FOR SENATE,
·4· · · · ·Plaintiff,
·5· ·vs.· · · · · · · · · · · · · · · CASE NO.:
·6· ·SUSAN BUCHER, SUPERVISOR OF· · ·ELECTIONS FOR PALM BEACH,·7· · · · · ·Defendant.·8· ·____________________________/
·9
10· · · · · · · · · · · · · · HEARING
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12· · · ·BEFORE:· · · · · HONORABLE KRISTA MARX
13· · · ·DATE:· · · · · · November 10, 2018
14· · · ·PLACE:· · · · · ·Palm Beach County· · · · · · · · · · · · · Criminal Justice Complex15· · · · · · · · · · · · 3228 Gun Club Road· · · · · · · · · · · · · West Palm Beach, Florida 3340616· · · · ·TIME:· · · · · · 8:32 a.m. to 9:13 a.m.17· · · · ·REPORTED BY:· · ·Amanda Thomas18· · · · · · · · · · · · Digital Court Reporter
19· · · ·TRANSCRIBED BY:· Tonya L. Mistretta, Registered Nurse· · · · · · · · · · · · · Court Reporter and Notary Public20· · · · · · · · · · · · State of Florida at Large
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000095
·1· ·APPEARANCES:
·2· · ·ALIETTE RODZ, ESQUIRE·3· ·Shutts & Bowen, LLP· · ·200 South Biscayne Boulevard·4· ·Suite 4100· · ·Miami, Florida 33131-2362·5· ·(305) 358-6300, FAX (305) 381-7742· · ·[email protected]·6· · · · · · · · ·Appeared on behalf of Plaintiff·7
·8· ·BENJAMIN JOHN GIBSON, ESQUIRE· · ·JASON B. GONZALEZ, ESQUIRE·9· ·Shutts & Bowen, LLP· · ·215 South Monroe Street10· ·Suite 804· · ·Tallahassee, Florida 32301-185811· ·(850) 241-1717· · ·[email protected]· ·[email protected]
13· · · · · · · ·Appeared on behalf of Plaintiff
14· · ·ANDREW BAUMANN, ESQUIRE15· ·Lewis, Longman & Walker, P.A.· · ·515 North Flagler Drive16· ·Suite 1500· · ·West Palm Beach, Florida 33401-432717· ·(561) 640-0820, FAX (561) 640-8202· · ·[email protected]· · · · · · · · ·Appeared on behalf of Defendant19
20· ·NATALIE ANNE KATO, ESQUIRE· · ·Lewis, Longman & Walker, P.A.21· ·315 South Calhoun Street· · ·Suite 83022· ·Tallahassee, Florida 32301-1872· · ·(850) 222-5702, FAX (850) 224-924223· ·[email protected]
24· · · · · · · ·Appeared on behalf of Defendant
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000096
·1· ·APPEARANCES CONTINUED:
·2· · ·ALSO PRESENT:·3
·4· ·JONATHAN HART, ESQUIRE· · ·KEVIN ROSEN, ESQUIRE·5· ·Shutts & Bowen, LLP· · ·525 Okeechobee Boulevard·6· ·Suite 1100· · ·West Palm Beach, Florida 33401-6351·7· ·(561) 650-8525, FAX (561) 822-5528· · ·[email protected]·8· ·[email protected]
·9· · ·JASON ZIMMERMAN, ESQUIRE10· ·GrayRobinson, P.A.· · ·301 East Pine Street11· ·Suite 1400· · ·Orlando, Florida 32801-274112· ·(407) 244-5669· · ·[email protected]
14· ·SUSAN BUCHER
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·1· · · · · · · · · · · · · I N D E X
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·3· ·PROCEEDINGS· · · · · · · · · · · · · · · · · · · ·5· · ·CERTIFICATE OF REPORTER· · · · · · · · · · · · · ·43·4· ·CERTIFICATE OF TRANSCRIPTION· · · · · · · · · · · 44
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·9· · ·NO.· ·DESCRIPTION· · · · · · · · · · · · · · · PAGE
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000098
·1· · · · · · · · P R O C E E D I N G S
·2· · · · THE COURT:· Okay.· We're here for defendant's
·3· ·motion for a reconsideration and stay.
·4· · · · Let's just be as concise as we possibly can.
·5· · · · I ordered yesterday that all damaged ballots
·6· ·that have been duplicated be provided to the
·7· ·Canvassing Board.
·8· · · · So I have reviewed your motion and it seems as
·9· ·though you're indicating to me that that will
10· ·virtually be impossible.
11· · · · MR. BAUMANN:· Yes, Your Honor, beyond virtual.
12· · · · THE COURT:· Pardon me?
13· · · · MR. BAUMANN:· Beyond virtual, Your Honor.· Upon
14· ·exploration it turned out to be impossible.
15· · · · Your Honor may recall that when we met
16· ·yesterday we were here on one case, and then I got
17· ·up to leave and you informed me that we had another
18· ·hearing, which I had not received notice of.
19· · · · THE COURT:· Well, here's the thing.· I don't
20· ·want to mess around with that --
21· · · · MR. BAUMANN:· No --
22· · · · THE COURT:· -- because frankly, there was
23· ·service, and these are emergency matters.· So we all
24· ·know the wheels of justice move slow, and in the
25· ·normal world it would be weeks before you would be
000099
·1· ·before the Court.
·2· · · · So I don't want to argue that.· I don't find
·3· ·that that's a good argument.· I want to get right to
·4· ·the crux of it --
·5· · · · MR. BAUMANN:· The crux of it --
·6· · · · THE COURT:· -- which is -- okay.· Let's start
·7· ·with this, from the affidavits I've reviewed, it
·8· ·appears that there's about 650 ballots in question.
·9· ·Is that accurate?
10· · · · MR. BAUMANN:· I am -- I don't know, Your Honor.
11· ·I don't know where they got that number from.
12· · · · THE COURT:· Well, I have it in a sworn
13· ·affidavit from the plaintiff that they were told
14· ·that there were approximately 650 ballots in play
15· ·here.
16· · · · MR. BAUMANN:· And I have Ms. Bucher, the
17· ·supervisor of elections, here with me.
18· · · · Because of the way the hearing unfolded
19· ·yesterday, I wanted to make sure that I could give
20· ·you as much information as possible.· I'm looking at
21· ·Ms. Bucher as well.
22· · · · I don't know how many ballots we're actually
23· ·talking about if that's in the ballpark or not.
24· · · · THE COURT:· Okay.· Ms. Bucher, do you wish to
25· ·give testimony?
000100
·1· · · · MS. BUCHER:· Yes.
·2· · · · THE COURT:· Yes?
·3· · · · MS. BUCHER:· Yes.
·4· · · · THE COURT:· Okay.· Could you please stand?
·5· ·Raise your right hand.· Do you swear to tell the
·6· ·truth, the whole truth, and nothing but the truth so
·7· ·help you God?
·8· · · · MS. BUCHER:· I do.
·9· · · · THE COURT:· All right.· Let me see if I can get
10· ·some clarification then, ma'am.· How are you today?
11· · · · MS. BUCHER:· Fine.· Good morning.
12· · · · THE COURT:· Good morning.
13· · · · MS. BUCHER:· We have completed our election
14· ·results.· We're ready to submit the deadlines today
15· ·at noon as defined.
16· · · · Madam Judge, when ballots run through the
17· ·tabulator machine are out stacked if they are not
18· ·properly voted and then they are taken over and we
19· ·duplicate a new ballot card so that we can try and
20· ·interpret the intent of the voters.
21· · · · We don't really monitor how many of those.· We
22· ·have 500,000 ballots with two cards.· And so I
23· ·didn't monitor how many.· We have a number sequence.
24· ·And so I can get you that number, but I don't have
25· ·it this morning.
000101
·1· · · · THE COURT:· So in your opinion we're talking
·2· ·about simply damaged ballots that wouldn't function
·3· ·when placed into the machine?
·4· · · · MS. BUCHER:· That's correct.· What happens is
·5· ·when the voter does not vote correctly, they circle
·6· ·the names and don't connect the arrows or they
·7· ·provide an arrow outside of where they're supposed
·8· ·to connect the arrows, the law does allow that we
·9· ·try and duplicate the voter's intent, and so we --
10· · · · THE COURT:· Okay.
11· · · · MS. BUCHER:· -- try to save their votes.
12· · · · THE COURT:· Overvotes, undervotes, and simply
13· ·damaged ballots.· And are these mail-in ballots that
14· ·we're talking about or --
15· · · · MS. BUCHER:· Mail in.
16· · · · THE COURT:· -- just strictly mail-in ballots?
17· · · · MS. BUCHER:· Yes.
18· · · · THE COURT:· All right.· The plaintiff has
19· ·represented in a sworn affidavit that in conversing
20· ·over the course of the last few days with your
21· ·office that they were told that this amount of
22· ·damaged or overvote, undervote category of mail-in
23· ·ballots was about 650.
24· · · · MS. BUCHER:· Madam Judge, the number would be
25· ·much more substantial, and I don't know where they
000102
·1· ·got that number.· They did not receive that number
·2· ·from my office.· We don't have that number.· We
·3· ·don't track that.
·4· · · · We're in a hurry to get our election results,
·5· ·and so we just want to duplicate the ballots as
·6· ·quickly as possible, run them back through so we can
·7· ·count them to meet our deadline.
·8· · · · THE COURT:· All right.· And so you say that the
·9· ·law allows your office -- again, when I was reading
10· ·these sworn affidavits, it appears from the
11· ·witnesses that were some 15 feet away from where the
12· ·damaged or overvoted, undervoted ballots were being
13· ·duplicated that --
14· · · · How many staff members would you say that you
15· ·had that were doing this duplication process?· The
16· ·affidavit seems to indicate some 30 or 40
17· ·individuals on your staff were doing this.
18· · · · MS. BUCHER:· That's incorrect, Madam Judge.· We
19· ·usually had about three to four teams of two people,
20· ·and the process was that they would call out the
21· ·indication that was clear and -- but before we
22· ·started that process, we trained all of the staff
23· ·and they had the rule indicating voter intent is
24· ·1S-2.027 --
25· · · · THE COURT:· Did somebody bring me a copy of
000103
·1· ·that?
·2· · · · MS. BUCHER:· I did.
·3· · · · THE COURT:· And have you reviewed that rule
·4· ·that says that they can do that?
·5· · · · MS. RODZ:· No.
·6· · · · THE COURT:· Do you have a copy for the
·7· ·plaintiff?· Do you have a copy for counsel?
·8· · · · MR. BAUMANN:· I don't know.· Ms. Bucher brought
·9· ·the rule.
10· · · · MS. BUCHER:· No.· I only have one copy here.
11· · · · THE COURT:· And what paragraph are you
12· ·referring to in this rule?
13· · · · MS. BUCHER:· The entire demonstration indicates
14· ·a clear intent of the voter, and so what we did is
15· ·we sat the staff down, provided each member with a
16· ·copy --
17· · · · THE COURT:· Let me just take a look at this
18· ·real quick.· All right.· And I'm looking at language
19· ·here in Paragraph 4B which says, "The Canvassing
20· ·Board must first look at the entire ballot for
21· ·consistency."· So did that occur?
22· · · · MS. BUCHER:· Well, no.· What occurred is that
23· ·we met as a Canvassing Board and we adopted a
24· ·standard that many of my colleagues in the large
25· ·counties use.
000104
·1· · · · And this is the first year I've adopted that
·2· ·standard, but I got the standard because it is a
·3· ·standard that are used in many of the other large
·4· ·counties.
·5· · · · And so we adapted a rule to indicate that we
·6· ·would train the staff in accordance with the
·7· ·demonstrations of what a true vote is.
·8· · · · And they would review the ballots, and if the
·9· ·ballot had clear intent, then they would duplicate
10· ·the ballots and our senior management staff would
11· ·quality control those, they would review those and
12· ·make determinations as to which ones needed to go to
13· ·the Canvassing Board.
14· · · · We also directed those staff -- minimal staff,
15· ·we had four tables at any time doing this, and so we
16· ·would have a senior staff member there present at
17· ·all times monitoring, and if -- they were told that
18· ·if they had any kind of questionable issue, they
19· ·would just set it aside and send it to the
20· ·Canvassing Board, and they did that.
21· · · · And so I have some demonstration ballots that I
22· ·can present to you to show you what the --
23· · · · THE COURT:· No.· Here's what I want to know,
24· ·not that I'm busy.· I want to make sure that every
25· ·vote is properly counted.
000105
·1· · · · I'm looking at the rule, and it says, "The
·2· ·Canvassing Board must first look at the entire
·3· ·ballot for consistency."
·4· · · · And I'm also looking at the statute that says,
·5· ·"When this process is going on that --" and during
·6· ·the duplication process -- "it must be witnessed."
·7· · · · So how many staff members from your office were
·8· ·charged with reviewing this number that you can't
·9· ·tell me of how many it was, how many staff members
10· ·were charged with reviewing them and making a
11· ·determination of whether or not the ballot needs to
12· ·be duplicated?
13· · · · MS. BUCHER:· I would say that at any one time
14· ·there would be about 12 people.
15· · · · THE COURT:· How many people in your staff in
16· ·its entirety were charged with that task?
17· · · · MS. BUCHER:· Well, two senior staff members and
18· ·then four tables of duplicators.
19· · · · THE COURT:· And how many people -- what's the
20· ·number?· How many people under your employment?
21· · · · MS. BUCHER:· Ten.
22· · · · THE COURT:· Ten?
23· · · · MS. BUCHER:· Ten to 12 at any one time.
24· · · · THE COURT:· And would it be your sworn
25· ·testimony that when this was occurring it was always
000106
·1· ·witnessed or it was always done in tandem?
·2· · · · MS. BUCHER:· Yes, ma'am.
·3· · · · THE COURT:· And that there was never a time
·4· ·that just one single solitary person from your
·5· ·office was looking at a ballot and saying overvote,
·6· ·undervote?
·7· · · · MS. BUCHER:· Absolutely not.· We also have --
·8· · · · THE COURT:· Wait.· Okay.· So then after these
·9· ·four tables of in tandem workers reviewed the
10· ·ballots, is it your testimony that your two senior
11· ·staff members reviewed their work?
12· · · · MS. BUCHER:· That's correct.
13· · · · THE COURT:· Okay.· So then tell me -- you say
14· ·that you adopted this policy this year because
15· ·that's what large counties do.
16· · · · So it seems to circumvent the mandatory
17· ·language that says both in the statute and the rule
18· ·that isn't up to you, because that's who your staff
19· ·is, to make the determination of undervotes,
20· ·under -- overvotes and damaged ballots, but rather
21· ·it's the Canvassing Board's job.
22· · · · So you said that it was compliant with the law.
23· ·From what I'm reading it's not.
24· · · · So tell me why you think your interpretation of
25· ·what you adopted from these other Supervisors of
000107
·1· ·Elections somehow excepts you from the requirement
·2· ·that the Canvassing Board makes the determination.
·3· · · · MS. BUCHER:· I didn't think that it excepted me
·4· ·from the law, but what I thought is that we had the
·5· ·clear intent to allow clerical staff to assist the
·6· ·Canvassing Board.
·7· · · · We train that clerical staff.· We have motion
·8· ·cameras.· We had some attorneys sitting there for
·9· ·almost three days that didn't say anything, and we
10· ·walked them through the area.
11· · · · We have a very secure facility, and I explained
12· ·to them that really I couldn't let them wander
13· ·through an area where there were ballots, and so
14· ·they seemed pretty content.
15· · · · I did offer them that they could order a copy
16· ·of the motion camera tapes and review them.· They
17· ·had a clear vision of where those people were,
18· ·although be it 15 feet away, and that's what's
19· ·really --
20· · · · THE COURT:· So they really couldn't see
21· ·anything other than people had a pen and were
22· ·duplicating something.
23· · · · So they -- they -- there was no other witness
24· ·to the accuracy of the duplication process or the
25· ·interpretation of the voter intent other than your
000108
·1· ·staff; is that correct?
·2· · · · MS. BUCHER:· Well, I felt more comfortable
·3· ·because we do have motion cameras and they're
·4· ·recording at all times, and if anybody had any kind
·5· ·of questionable issue, we can roll the tape and show
·6· ·exactly what they were doing.
·7· · · · MS. RODZ:· Your Honor, if I may provide you
·8· ·with a demonstrative so that you can see what's
·9· ·being depicted because this is the actual --
10· · · · THE COURT:· Yeah.· That was attached to your
11· ·motion, right?
12· · · · MS. RODZ:· Yes.· That's correct.
13· · · · THE COURT:· So that basically shows where the
14· ·witnesses were standing?
15· · · · MS. RODZ:· Right behind the ropes.
16· · · · THE COURT:· Okay.· So these tapes that you
17· ·speak of, I mean, would they have been honed in on
18· ·the work being done by your staff?
19· · · · So in other words, if the plaintiff wanted
20· ·these tapes, would they be able to say, "Oh, look,
21· ·this looks like they didn't connect the lines and
22· ·I've got to assume that that's what the voter intent
23· ·was and I'm going to duplicate it," or would it just
24· ·be the busy bees at a table?
25· · · · MS. BUCHER:· I really don't know.· I haven't
000109
·1· ·reviewed those kinds of tapes in the past.
·2· · · · THE COURT:· So obviously then the statute then
·3· ·requires whenever this duplication process is
·4· ·occurring that you are charged with keeping the
·5· ·original damaged undervoted, overvoted ballot and
·6· ·that each of those ballots must have a serial number
·7· ·attached to it and must be duplicate -- the
·8· ·duplicate ballot must be clearly marked "duplicate,"
·9· ·correct?
10· · · · MS. BUCHER:· That's correct.
11· · · · THE COURT:· And you did that in each instance?
12· · · · MS. BUCHER:· Yes, ma'am.
13· · · · THE COURT:· And did you keep a tally of how
14· ·many ballots we're talking about?
15· · · · MS. BUCHER:· We did.· I haven't reviewed that
16· ·tally.· We were in a hurry to conduct our election
17· ·and conclude the results, and I have not reviewed
18· ·those sheets.
19· · · · THE COURT:· So you contest the plaintiff's
20· ·allegation that the amount is some 650 and in your
21· ·estimation you believe it to be a much larger
22· ·amount?
23· · · · MS. BUCHER:· That's correct.
24· · · · THE COURT:· But you could readily provide that
25· ·information because, in fact, you complied with the
000110
·1· ·statute and have a running list of each and every
·2· ·damaged overvoted or undervoted ballot?
·3· · · · MS. BUCHER:· Yes, ma'am, but after we duplicate
·4· ·the ballots, when we run the ballot -- the good
·5· ·ballots through, we store the duplicates and then we
·6· ·interfile the voted ballots that we duplicated into
·7· ·their proper precinct so that we can prepare for the
·8· ·three statewide recounts and then the State House
·9· ·recount that we have right now.· So we interfiled
10· ·those ballots into almost 1,000 boxes of ballots.
11· · · · THE COURT:· All the duplicate ballots are
12· ·intermixed?
13· · · · MS. BUCHER:· Yes.
14· · · · THE COURT:· And where are the originals?
15· · · · MS. BUCHER:· The originals are being stored in
16· ·number sequence.
17· · · · THE COURT:· And you have them locked away
18· ·someplace?
19· · · · MS. BUCHER:· Yes, ma'am.
20· · · · THE COURT:· All right.· So certainly your
21· ·office could pair them up with the duplicate ballot?
22· · · · MS. BUCHER:· Yes, ma'am, we could.· We estimate
23· ·that it would take about two to three days.
24· · · · We would need to go through every single box of
25· ·ballots and locate the duplicated ballots that are
000111
·1· ·in numbered sequence and we can identify them.· It
·2· ·just would take a much longer time frame in the time
·3· ·that we have very large time constraints
·4· ·(inaudible).
·5· · · · THE COURT:· Okay.· Do you have any questions?
·6· · · · MS. RODZ:· I do, Your Honor.· This order was
·7· ·issued by the Court and a ruling was obtained.
·8· ·Certainly.
·9· · · · THE COURT:· I'll just have you state your name
10· ·for the record.
11· · · · MS. RODZ:· Yes.· And if I may state who's here,
12· ·Your Honor, since we didn't do appearances for the
13· ·record.
14· · · · Aliette Rods from Shutts & Bowen on behalf of
15· ·the plaintiff together with my colleague Ben Gibson,
16· ·my co-counsel Jason Zimmerman.· I also have here
17· ·Jason Gonzalez with Shutts & Bowen, and we have the
18· ·two witnesses, Jonathan Hart and Kevin Rosen, also
19· ·present here in an abundance of caution, Your Honor.
20· · · · THE COURT:· Okay.
21· · · · MS. RODZ:· The Court issued a ruling and an
22· ·order.· I would like to understand what has been
23· ·done to actually proceed and comply with that order
24· ·since there is no stay issued.
25· · · · MS. BUCHER:· We have taken a look at how we
000112
·1· ·would conduct going through those boxes and locating
·2· ·those duplicate ballots.· We're prepared to do so as
·3· ·soon as possible.
·4· · · · MS. RODZ:· Did you start doing that in
·5· ·compliance with this Court's order and start doing
·6· ·it so that we can say, okay, in an hour we have
·7· ·started pulling out and we only have five out of
·8· ·10,000 boxes?· Has any effort been done to comply
·9· ·with the Honorable Court, Judge Marx's order?
10· · · · MS. BUCHER:· We have done our very best to take
11· ·a look at a plan to do so, but obviously we were
12· ·canvassing ballots until about 11:30 last night to
13· ·meet our deadline of noon today, and we're prepared
14· ·to start immediately.
15· · · · MS. RODZ:· I understand that last night there
16· ·was a refusal to continue and you stopped at
17· ·9:44 p.m. despite the objection by Jonathan Hart, my
18· ·counsel that was present; is that correct?
19· · · · MS. BUCHER:· No, it's not.· We completed our
20· ·election results at about 11:30, and I exited that
21· ·building at about 1:30.
22· · · · MS. RODZ:· When Mr. Hart asked, "What are you
23· ·doing to comply?"· You stated that, "There's a
24· ·motion pending for reconsideration."· That was the
25· ·response.
000113
·1· · · · Isn't it true that nothing has been done to
·2· ·actually comply with the court order simply thinking
·3· ·we will start after the hearing that's per the next
·4· ·day in disregard of this Court's order?
·5· · · · MS. BUCHER:· That is absolutely not correct.
·6· ·We have been working with my managers that control
·7· ·that process to establish a process of how would we
·8· ·go locate those ballots and how quickly we could
·9· ·pair them up with their duplicates.
10· · · · MS. RODZ:· Under the statute you're required to
11· ·have the word "duplicate" and have it bear a serial
12· ·number.
13· · · · Isn't it simply going to those stacks and
14· ·pulling the ones that are entitled "duplicate"?
15· ·Isn't that as easy as it could be?· Tedious perhaps,
16· ·but shouldn't you have started it immediately upon
17· ·this Court's ruling since we do not have a stay?
18· · · · MS. BUCHER:· We were counting ballots. I
19· ·stated that before.
20· · · · And we do have an established process that we
21· ·worked on yesterday.· It is not as simple as just
22· ·going through the stacks of ballots.· The ballots
23· ·are very secure in buckets.
24· · · · We have over 1,000, and we would have to go
25· ·through each one very carefully to make sure that we
000114
·1· ·were getting all of those duplicates and then
·2· ·putting them in numerical order and matching them up
·3· ·to their duplicates.
·4· · · · We've estimated that if we work 24/7 around the
·5· ·clock we could probably get that done in about two
·6· ·days.
·7· · · · MS. RODZ:· So the answer is no, you've done
·8· ·nothing?· You've just --
·9· · · · MS. BUCHER:· That is not correct.
10· · · · MS. RODZ:· -- pontificated as to what can be
11· ·done and planned, but done nothing; isn't that
12· ·correct?
13· · · · MS. BUCHER:· No, it's not.· We haven't
14· ·pontificated.· We have established a plan to comply
15· ·with the law.
16· · · · MS. RODZ:· Have you looked at a single box?
17· · · · MS. BUCHER:· No, but we've established that we
18· ·have the duplicates in numerical order and we have
19· ·looked at those.· That was our first preparation.
20· · · · MS. RODZ:· Now, the statute requires -- and if
21· ·you read 101.5614, it says, "As soon as the polls
22· ·are closed, the election board shall secure the
23· ·voting devices against further voting."
24· · · · And for the Court and for the parties, "The
25· ·election board shall thereafter, in the presence of
000115
·1· ·members of the public desiring to witness the
·2· ·proceedings --" this is what the statute requires.
·3· · · · Why is it that you did not allow people that
·4· ·were members of the public that were there present
·5· ·desirous to witness the proceedings compliant with
·6· ·this statute to do so?
·7· · · · MS. BUCHER:· Well, when I talked to the
·8· ·witnesses that are working in our area, I explained
·9· ·to them that I couldn't really sit with them because
10· ·we had to conduct our election, and that I walked
11· ·them through, I showed them the process, and
12· ·explained to them that they were able to order a
13· ·copy of the motion camera tapes, and they seemed
14· ·quite comfortable with that.
15· · · · MS. RODZ:· Isn't it true that you did not allow
16· ·them to actually witness the process?
17· · · · MS. BUCHER:· Again, I'll say that I walked them
18· ·through.· They felt quite comfortable for many days
19· ·in a row to observe the process from where they
20· ·were, and when I explained that there motion cameras
21· ·in our quality control area, I explained the entire
22· ·process, they felt quite comfortable.· They did not
23· ·really protest.
24· · · · MS. RODZ:· Do you have a copy of the standard
25· ·established by you that permits duplicates --
000116
·1· · · · MS. BUCHER:· I --
·2· · · · MS. RODZ:· -- to be processed in the manner
·3· ·that you have explained to the Court that you are
·4· ·allegedly processing it?
·5· · · · MS. BUCHER:· I do not establish that standard.
·6· ·That standard is established in the rule that I
·7· ·provided to the judge.
·8· · · · MS. RODZ:· Are you aware of the fact that the
·9· ·Canvassing Board does not have rule-making
10· ·authority?
11· · · · MS. BUCHER:· Of course I am.
12· · · · MS. RODZ:· And so why is it that you have taken
13· ·it upon yourself to disregard the rule and the
14· ·statute and the process that's been established by
15· ·Florida?
16· · · · MS. BUCHER:· I don't believe that we disregard
17· ·it.
18· · · · We use a rule that is in place that has been
19· ·adopted by the State of Florida, that is used by
20· ·numerous other supervisors, and that's why we went
21· ·by the exact rule to determine the intent of the
22· ·voter to be extremely clear about the process.
23· · · · (Multiple speakers speaking at the same time.)
24· · · · THE COURT:· Just pause for a minute, okay?
25· ·Because, I mean, you started off saying to me that,
000117
·1· ·you know, the large circuit -- the large counties
·2· ·employ this process where the staff makes the
·3· ·unilateral decision of what counts as an undervote,
·4· ·overvote or damaged vote and yet when (inaudible)
·5· ·says, no, they don't after the Canvassing Board
·6· ·reviews it, so that didn't happen, right?
·7· · · · MS. BUCHER:· In many cases that's true.· When
·8· ·it was a very clear intent, I brought some examples
·9· ·of ballots if you'd like to see, but the --
10· · · · THE COURT:· I don't want to.· I just want you
11· ·to answer the question, that the Canvassing Board
12· ·didn't review it first?
13· · · · MS. BUCHER:· That's right.
14· · · · THE COURT:· Let me ask you this.· Did your --
15· ·these staff members, are they permanent staff
16· ·members or is it like a Macy's at the holiday season
17· ·and you hire people off the street --
18· · · · (Both speaking at once.)
19· · · · MS. BUCHER:· Some of the staff members are our
20· ·senior managers.
21· · · · THE COURT:· All senior managers would have been
22· ·part of this in tandem team that was reviewing --
23· · · · MS. BUCHER:· No.· We have some of our permanent
24· ·staff and they would be paired up with possibly a
25· ·temporary.
000118
·1· · · · THE COURT:· Temporary meaning some --
·2· · · · MS. BUCHER:· Somebody who has worked with us
·3· ·throughout the election process.· We always -- we
·4· ·only employ 48 people.· We usually pick up around
·5· ·200 people.· Out of those people we usually quality
·6· ·have about 20 people, some of the people who have
·7· ·worked with us throughout the entire election cycle.
·8· · · · THE COURT:· So some of the people that were
·9· ·making this determination were just temporary
10· ·employees that were hired for election season?
11· · · · MS. BUCHER:· They were, but they have had
12· ·extensive training not only in this process, but in
13· ·the entire counting of ballot process.· They've been
14· ·with us since the primary election since before the
15· ·primary election.
16· · · · THE COURT:· All right.· Go ahead.
17· · · · MS. RODZ:· You testified to the Court that you
18· ·don't know the number of duplicate ballots.· If you
19· ·don't know, how do you know it's impossible to do
20· ·the task that the Court has ordered you to do?
21· · · · MS. BUCHER:· We have reviewed the process, and
22· ·I know that it's thousands of ballots, and I can't
23· ·be there monitoring that process when I'm canvassing
24· ·ballots.
25· · · · MS. RODZ:· And how did you find the ballots
000119
·1· ·that you have testified to the Court that you
·2· ·brought as, quote, unquote, examples?· How did you
·3· ·do that process?
·4· · · · MS. BUCHER:· We provided that each -- in
·5· ·accordance with the Florida statute that each
·6· ·duplicate ballot prepared pursuant to 101.561 --
·7· · · · MS. RODZ:· I'm sorry.· Will you please slow
·8· ·down for the Court?
·9· · · · MS. BUCHER:· -- shall be compared with the
10· ·original ballot to ensure the correct duplicate.· If
11· ·the counting team is unable to determine whether the
12· ·ballot contains a clear indication that the voter
13· ·has made a definite choice, the ballot shall be
14· ·presented to the Canvassing Board.
15· · · · We relied on that statute, ma'am.
16· · · · MS. RODZ:· That was not my question.· How did
17· ·you find those ballots that you have testified to
18· ·the Court you brought as an example?· What process
19· ·did you do to find those examples?
20· · · · MS. BUCHER:· We opened the first box of
21· ·duplicates and grabbed those, the two examples, one
22· ·that would have been duplicated by the staff and one
23· ·that was presented to the Canvassing Board to show
24· ·the starking difference of a very clear intent of
25· ·circles around a candidate's name and then stray
000120
·1· ·marks that the Canvassing Board would have had to
·2· ·determine.
·3· · · · THE COURT:· Let me ask you something.· Did the
·4· ·staff -- it's your sworn testimony that it was
·5· ·always in tandem, so when this duplication process
·6· ·was occurring, there was never one staff member
·7· ·making the decision.
·8· · · · Did any of these staff members say, "This is
·9· ·too damaged.· We're not going to count it"?
10· · · · MS. BUCHER:· Absolutely not.· What happens is
11· ·that we present a blank ballot and a ballot that
12· ·needs to be duplicated.
13· · · · One staff members reads off the voter's
14· ·choices.· The other one marks the ballot.· They
15· ·trade those ballots and the other person reads off
16· ·and the person who was reading off originally is
17· ·verifying that the second board -- team member
18· ·captured the votes properly.
19· · · · THE COURT:· And how would you respond to the
20· ·fact that I have two affidavits from individuals who
21· ·are sitting in the courtroom today that say they
22· ·observed it from this 15 feet away and that they --
23· ·that's not what that observed was happening, but
24· ·rather they observed a group of individuals doing
25· ·the duplication process rather than working in
000121
·1· ·tandem and in their affidavits they say instead two
·2· ·supervisors were cruising around the room watching?
·3· · · · MS. BUCHER:· We have other activity, and so I
·4· ·think that what they were looking at yesterday is we
·5· ·were in the process of separating the two ballot
·6· ·pages so that we could prepare a recount.
·7· · · · And we did have individuals just separating
·8· ·card A from card B.· I'm sure that they saw that
·9· ·process.· Those tables are intermingled in the same
10· ·territory, but at no time was one person making a
11· ·determination.
12· · · · We have a very quality careful system.· They
13· ·are traded.· They make sure that they have verified
14· ·that they've correctly documented the vote, and we
15· ·have liberally told them that if they have any issue
16· ·that they are to immediately send it to the
17· ·Canvassing Board.
18· · · · MS. RODZ:· Where is it required in the statute
19· ·or anywhere that you separate pages as you were
20· ·doing yesterday instead of complying with this
21· ·Court's order for the ballots?
22· · · · MS. BUCHER:· I don't think that has anything to
23· ·do with this issue.
24· · · · MS. RODZ:· It's very important.· Where is it
25· ·required under law that you start separating ballots
000122
·1· ·for convenience versus complying with this Court's
·2· ·order?
·3· · · · MS. BUCHER:· Well, in the process that we have,
·4· ·we certainly wouldn't have used the staff that was
·5· ·separating card A from card B to go and make sure
·6· ·that we capture all of those duplicates in each one
·7· ·of the buckets of ballots.
·8· · · · That would be something that our permanent and
·9· ·senior staff would do because we would not rely on
10· ·the other staff members that are working with us
11· ·right now to conduct that operation.
12· · · · MS. RODZ:· But you relied on them to duplicate
13· ·ballots?
14· · · · MS. BUCHER:· No.· We relied on our senior staff
15· ·to duplicate ballots and team them with a senior
16· ·staff member at all times.
17· · · · THE COURT:· Okay.· You just read some statutory
18· ·language in saying that somehow -- you know, I'm
19· ·still not clear.
20· · · · You told me that you believe it's lawful, this
21· ·procedure of having staff members and not having the
22· ·Canvassing Board, but everything I have says the
23· ·Canvassing Board must make the determination, not
24· ·your staff members.
25· · · · So tell me your best argument for how this
000123
·1· ·procedure that you employed and assert that other
·2· ·counties also employ is proper under the law.
·3· · · · MS. BUCHER:· Well, we have a very careful
·4· ·process of monitoring --
·5· · · · THE COURT:· No.· No.· No.· What legal authority
·6· ·do you have where this procedure where the
·7· ·unambiguous language says it is solely for the
·8· ·Canvassing Board to make the determination?
·9· · · · I don't want to say -- I don't want to hear,
10· ·"Well, you know, we just have a lot of cases and
11· ·we're really busy and this is how we do it and this
12· ·is how other big -- other people do it too, Johnny
13· ·jumped off the bridge."
14· · · · The language is unambiguous that it's the
15· ·Canvassing Board who makes the determination.
16· · · · So I want to hear your best argument, a case, a
17· ·statute, a rule that says what you're doing, what
18· ·you assert other big counties are doing is
19· ·appropriate, your best argument.
20· · · · MS. BUCHER:· There is a statute that allows the
21· ·Canvassing Board to employ clerical help to assist
22· ·in the operation of counting ballots of elections.
23· · · · THE COURT:· Where is that statute though?
24· · · · MR. BAUMANN:· May I approach, Your Honor?
25· · · · THE COURT:· I'm not sure determining undervotes
000124
·1· ·and overvotes is clerical.· I know that our clerks
·2· ·in the law system would never make such a
·3· ·determination.· What paragraph of this --
·4· · · · (Both speaking at once.)
·5· · · · MS. BUCHER:· It's 102.141(8).
·6· · · · THE COURT:· 8?
·7· · · · MS. BUCHER:· 8.· "The Canvassing Board may
·8· ·include -- employ such clerical help to assist with
·9· ·the work of the board as it deems necessary and at
10· ·least one member of the board present at all times
11· ·until the canvass of the returns is completed."
12· · · · I was always present during the duplicating
13· ·process.
14· · · · THE COURT:· There was never any duplication
15· ·going on without your presence?
16· · · · MS. BUCHER:· Absolutely not.· You cannot open
17· ·ballots or duplicate ballots without at least one
18· ·member of the Canvassing Board present, and I was
19· ·present at every single time that we opened ballots
20· ·or that we duplicated ballots.
21· · · · THE COURT:· Okay.· Listen, we are where we are,
22· ·and the deadline is an hour and a half, and you're
23· ·not going to get what I ordered.
24· · · · So I want to hear from you, Ms. Rodz.· What do
25· ·you want me to do?
000125
·1· · · · MS. RODZ:· Your Honor, can we ask one more
·2· ·question?
·3· · · · THE COURT:· Sure.
·4· · · · MS. RODZ:· You testified to this Court that
·5· ·there are other counties that are doing this, and
·6· ·I'd like to know, considering that they have
·7· ·disregarded the law, what other counties do you
·8· ·present to this Court that you communicated with to
·9· ·make this decision?
10· · · · MS. BUCHER:· Well, being a large county, we
11· ·have a large county coalition that meets once a
12· ·quarter, and when I went around the table, almost
13· ·every large county had employed this process for
14· ·over ten years.
15· · · · I've been a supervisor for ten years.· This is
16· ·my first year that I've employed it because I felt
17· ·comfortable that other large counties had been doing
18· ·this process for a very long time.
19· · · · MS. RODZ:· That doesn't answer my question.
20· ·What counties employ it?
21· · · · MS. BUCHER:· Well, you know, the large counties
22· ·that spoke to me about this is Hillsborough, Orange
23· ·County, Lee County, many counties.
24· · · · MS. RODZ:· So are you testifying that Lee
25· ·County and Hillsborough County are applying the same
000126
·1· ·disregard to the statute that you are?
·2· · · · MS. BUCHER:· Well, I don't know that they're
·3· ·disregarding it --
·4· · · · MR. BAUMANN:· Objection.
·5· · · · THE COURT:· What's your objection, sir?
·6· · · · MS. BUCHER:· -- but they did provide --
·7· · · · MR. BAUMANN:· There is a mischaracterization of
·8· ·illegal activity.
·9· · · · THE COURT:· Sustained.· All right.· Look,
10· ·here's where we are, in an hour and a half my order
11· ·will not be complied with.· However, it sounds like
12· ·the supervisor of elections is saying it is doable.
13· · · · MS. RODZ:· I just didn't do it.· That's pretty
14· ·much what we've heard today.· I just disregarded the
15· ·Court.· I just filed a motion not to get it --
16· · · · (All speaking at once.)
17· · · · THE COURT:· All we're here for right now is a
18· ·motion for reconsideration.
19· · · · MS. RODZ:· Yes, Your Honor.· You have to have a
20· ·basis for a reconsideration.· You didn't get an
21· ·affidavit.· All you got is oh, they're intermixed.
22· · · · But guess what?· The statute requires you to
23· ·duplicate and requires you to put "duplicate" and
24· ·have a serial number on it.
25· · · · We've heard, oh, I can be here today.· I can
000127
·1· ·stop doing or I can walk around a huge warehouse,
·2· ·but I can't ask people to comply with this Court's
·3· ·order.· This is bombastic.· We should not be here
·4· ·today.
·5· · · · They should be doing their job.· They should be
·6· ·complying with your Honorable Court.· You've spent
·7· ·time and effort.
·8· · · · And why are we here?· Because they don't want
·9· ·to comply with the statute.· They don't care about
10· ·this Court's ruling, and that's unacceptable, Your
11· ·Honor, completely unacceptable.
12· · · · They should be pulling out every single
13· ·duplicate.· Now, if they would have filed an
14· ·affidavit and been here today and said, "Judge, the
15· ·minute you rule on this we started pulling and we've
16· ·been pulling for 15 hours, Your Honor, and we are
17· ·only here," I'd respect that, Your Honor, because
18· ·they tried in good faith.
19· · · · All I've heard today, and I'm amazed that we're
20· ·here instead of complying with this Court's order
21· ·for the benefit of the voters of this state, all we
22· ·have heard is we're here to try to make sure we
23· ·don't have to do our job and we don't care about the
24· ·Court.
25· · · · They didn't file an appeal.· Had they filed an
000128
·1· ·appeal, they would have had a stay.· You know why?
·2· ·Because they don't have an appealable issue.· They
·3· ·know what they've done and it's wrong.
·4· · · · So the fact that they haven't complied is their
·5· ·problem.· How they are going to be sanctioned for
·6· ·it, we'll have to see, but the reality is that they
·7· ·should be running to their job and start doing their
·8· ·job because if they had 30 to 40 people, which we
·9· ·have personally witnessed 30 to 40 people there,
10· ·start pulling, start giving to the Canvassing Board.
11· · · · And you know what, if can't comply by 10:00,
12· ·say, Your Honor, we've given them 5,000 by 10:00 and
13· ·by 11:00 we gave them twenty because we failed to do
14· ·our job.· Why are we here?· We should not be here.
15· · · · MR. BAUMANN:· May I respond, Your Honor?· Thank
16· ·you.· Notwithstanding the argument grandstanding --
17· · · · THE COURT:· All right.· We can skip that.
18· · · · MR. BAUMANN:· Your Honor, I'm handing you
19· ·Volusia County Canvassing Board versus -- Beckstrom
20· ·versus Volusia County Canvassing Board, a Supreme
21· ·Court case from 1998.
22· · · · This case is important for a couple of reasons.
23· ·Why are we here, Your Honor?· The very simple
24· ·question is we shouldn't be here.
25· · · · The Beckstrom case tells us that the remedy --
000129
·1· ·the legal remedy, which we refute or defeat the
·2· ·attempt to obtain an injunction in the first place,
·3· ·is that if Governor Scott loses this race, he has
·4· ·the remedy to file an election challenge under
·5· ·102.168, and we can have all of those ballots used
·6· ·in discovery.· We can determine whether or not the
·7· ·elements of an election challenge were met.
·8· · · · The Volusia County case states -- and it's an
·9· ·interesting case because it deals with absentee
10· ·ballots.
11· · · · In that one, Your Honor, the Volusia County
12· ·Canvassing Board and supervisor's staff did not
13· ·create duplicate ballots.· They simply took a
14· ·Sharpie and went over the original ballots and
15· ·colored them in so that the machine would read them
16· ·better, and the prevailing candidate won by absentee
17· ·ballots.
18· · · · THE COURT:· Well, who did that scribbling, the
19· ·Canvassing Board or staff members that were
20· ·temporarily hired?
21· · · · MR. BAUMANN:· The case says election staff.
22· · · · MS. RODZ:· Your Honor, that case is an election
23· ·contest.
24· · · · MR. BAUMANN:· Excuse me.· And that is the point
25· ·is that that is an election contest.
000130
·1· · · · MS. RODZ:· After the fact.
·2· · · · MR. BAUMANN:· And in that case the trial judge
·3· ·ruled that there is a standard in election contests,
·4· ·that citing the Boardman decision from the Florida
·5· ·Supreme Court, 323 So.2d 259.
·6· · · · The Boardman case sets the standard realizing,
·7· ·as the Supreme Court stated, which is on Page 6 of
·8· ·the -- quoted on Page 6 of the opinion.
·9· · · · "Realizing as we do that strict compliance has
10· ·been required by this Court in other cases, we now
11· ·recede from that rule" and hold to the effect that
12· ·"substantial compliance with the absentee voting
13· ·laws is all that is required to give legality to the
14· ·ballot."
15· · · · The Supreme Court then goes on at the bottom of
16· ·Page 6 to talk about the difference between fraud
17· ·and between what they term gross negligence, and
18· ·it's not gross negligence in the standpoint of a
19· ·tort case.
20· · · · They're talking about unintentional
21· ·noncompliance with a statutory-mandated process that
22· ·results from incompetence, lack of care where as we
23· ·find occurred in this election, the election
24· ·official's erroneous understanding of the statutory
25· ·requirements.
000131
·1· · · · And in sum what they hold is that even in a
·2· ·situation where the trial court finds substantial
·3· ·noncompliance caused by unintentional wrongdoing, as
·4· ·we have defined it, the Court is to void the
·5· ·election only if the substantial noncompliance
·6· ·resulted in doubt --
·7· · · · THE COURT:· I'm not voiding an election.
·8· · · · MR. BAUMANN:· Well, but the point is, Your
·9· ·Honor, that is the legal remedy here.· The Courts
10· ·are supposed to abstain from --
11· · · · THE COURT:· Wait.· Wait.· Wait.
12· · · · (Both speaking at once.)
13· · · · MR. BAUMANN:· -- in the middle of an election.
14· · · · THE COURT:· I'm not doing that.· I have sworn
15· ·affidavits that say all damaged ballots, which were
16· ·only about 650, and now I'm learning are thousands,
17· ·there are witnesses who say that this in-tandem
18· ·procedure was not occurring that but yet rather
19· ·unilateral decisions were being made by what I've
20· ·now learned is even temporary staff.
21· · · · So I am not voiding -- I am saying that a
22· ·Canvassing Board decision should have been made
23· ·about that pursuant to the statute and the rule and
24· ·it wasn't, and that is why yesterday I ordered that
25· ·the 650 that now has blossomed into a much larger
000132
·1· ·number be provided to the Canvassing Board.
·2· · · · MR. BAUMANN:· Correct, Your Honor.
·3· · · · THE COURT:· So --
·4· · · · MR. BAUMANN:· And when we were here yesterday,
·5· ·we were both operating due to my lack of knowledge
·6· ·as to where we were as to, one, the number of
·7· ·ballots we were talking about, and two, where we
·8· ·were in the process.
·9· · · · I was not aware that as we were in hearing
10· ·yesterday that the duplicate ballots had already
11· ·been tabulated and therefore had disappeared into
12· ·what I'm going to call the stream of ballots.
13· · · · I thought that was still something that we
14· ·could locate.· I told Your Honor that I wasn't sure,
15· ·but that we would do whatever it would take to get
16· ·it done.
17· · · · I returned to the supervisor's office after the
18· ·hearing and was told it's done, we can't get this
19· ·done by 10:00 tomorrow morning.· There's no way.
20· · · · And we filed a motion for reconsideration,
21· ·which is the proper thing to do when either the
22· ·Court does not have all the information or has been
23· ·acting upon inaccurate information.
24· · · · THE COURT:· Okay.· What I find troubling though
25· ·is what I firmly believe that from my ruling at
000133
·1· ·about 11:45 yesterday, it's my opinion that
·2· ·zip-a-dee-doo-dah has been done to comply with the
·3· ·order.
·4· · · · So that troubles me deeply that simply a motion
·5· ·for reconsideration was filed very late yesterday
·6· ·afternoon, and from what I'm hearing nobody did
·7· ·anything to come into compliance from the Supervisor
·8· ·of Elections office with regard to my order.
·9· · · · A motion for reconsideration is not a stay, and
10· ·I do not appreciate that here we are now two hours,
11· ·three hours -- two hours from the deadline -- one
12· ·hour from the deadline and nothing has been done in
13· ·my opinion from what I've heard to comply with the
14· ·order.
15· · · · So, Ms. Rodz, what I say to you is this is
16· ·simply here for a motion for reconsideration.
17· · · · MS. RODZ:· And it should be denied, Your Honor.
18· ·It should be denied because you've heard today that
19· ·she needed two days.· She could have started to run
20· ·over there, call their people --
21· · · · THE COURT:· Okay.· Anything further on the
22· ·motion for reconsideration?
23· · · · MR. BAUMANN:· Yes, Your Honor.· What you are
24· ·asking for and to clarify is the ballots that were
25· ·segregated, that remain segregated are the original
000134
·1· ·damaged ballots, the originals, the ones the voters
·2· ·filled out.· That is the only thing that we could --
·3· ·here's a box, here they are.
·4· · · · What you heard from the supervisor was that she
·5· ·had staff members determining how they would locate
·6· ·these things, what the process would be to follow
·7· ·it, and then determine how long it would take.
·8· · · · THE COURT:· Okay.· Ms. Bucher, did you testify
·9· ·earlier, ma'am, that the count is complete?
10· · · · MS. BUCHER:· Yes.
11· · · · THE COURT:· Okay.· All right.· So they
12· ·can't -- you've already got all the segregated
13· ·ballots in a particular location under seal,
14· ·correct?
15· · · · MR. BAUMANN:· The originals.
16· · · · THE COURT:· Correct.
17· · · · MR. BAUMANN:· Yes, Your Honor.
18· · · · THE COURT:· The damaged defective ballots have
19· ·been segregated and there is a process in place
20· ·whereby going through, although tedious, you can, in
21· ·fact, provide the plaintiff with the duplicate
22· ·ballots, correct?
23· · · · MR. BAUMANN:· There is a process, yes, Your
24· ·Honor.
25· · · · THE COURT:· So the motion for reconsideration
000135
·1· ·is denied.· However, I extend it to noon, and there
·2· ·must be substantial compliance with the order.
·3· · · · Listen, they're not going to meet it, but I
·4· ·want -- certainly they should have all damaged
·5· ·ballots by noon and there should be substantial
·6· ·compliance given the fact that these 30 or 40
·7· ·employees are now done, the count is complete, that
·8· ·they should start combing through these ballot boxes
·9· ·and pulling the duplicate ballots that were
10· ·completed by staff members.
11· · · · So there must be substantial compliance with
12· ·pulling out the duplicate ballots that were
13· ·completed by staff.
14· · · · MR. BAUMANN:· If I may, Your Honor, the issue
15· ·is that we are expecting that any moment now the
16· ·declaration of three statewide recounts and a --
17· · · · THE COURT:· So guess what?· You're going to
18· ·need to do it anyway.· If, in fact, there's a
19· ·recount, then that's going to have to be done
20· ·anyway.· So that's what I'm ordering, and I'm going
21· ·to extend it to 12:00.· The motion to stay is
22· ·denied.· Okay.· Anything further?
23· · · · MR. BAUMANN:· No, Your Honor.
24· · · · THE COURT:· Thank you.
25· · · · (Concluded at 9:13 a.m.)
000136
·1· · · · · · · · · · CERTIFICATE OF REPORTER
·2
·3
·4· ·STATE OF FLORIDA
·5· ·COUNTY OF PALM BEACH
·6
·7· · · · · · · ·I, AMANDA THOMAS, digital court reporter,
·8· ·certify that I was authorized to and did report the
·9· ·foregoing hearing; that the foregoing transcript is a
10· ·true and accurate record of the above-mentioned
11· ·proceedings; and that said record has been transcribed by
12· ·me or under my direction.
13
14· · · · · · · ·I further certify that I am not a relative,
15· ·employee, attorney, or counsel of any of the parties, nor
16· ·am I a relative or employee of any of the parties'
17· ·attorney or counsel connected with the action, nor am I
18· ·financially interested in the action.
19
20· · · · · · · ·Dated:· 11/11/2018.
21
22· · · · · · · · · · · · ·___________________________________· · · · · · · · · · · · · ·AMANDA THOMAS23· · · · · · · · · · · · ·Digital Court Reporter· · · · · · · · · · · · · ·Notary Public, State of Florida24
25
000137
IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
RICK SCOTT FOR SENATE, CASE NO.: 502018CA014075XXXXMB
Plaintiff, DIVISION: AA
v.
PALM BEACH COUNTY SUPERVISOR
OF ELECTIONS, SUSAN BUCHER;
in her official capacity as Palm Beach
County Supervisor of Elections,
Defendant.
________________________________________/
ORDER SETTING HEARING
THIS MATTER came before the Court on Defendant’s Emergency Motion for
Reconsideration, Status Conference, and Emergency Stay filed November 9, 2018. Upon
consideration, it is hereby
ORDERED AND ADJUDGED that:
This motion is hereby set for a hearing on Saturday, November 10, 2018 at 8:30 am in
Courtroom 1 at the Criminal Justice Complex, 3228 Gun Club Road, West Palm Beach, FL
33406.
DONE AND ORDERED in Chambers, at West Palm Beach, Palm Beach County,
Florida this 9th day of November, 2018.
______________________________
KRISTA MARX, Circuit Judge
Copies furnished to:
Aliette Rodz, Esq.
(Counsel for Rick Scott For Senate)
200 South Biscayne Blvd., Suite 4100
Miami, FL 33131
Email: [email protected]
000145
Andrew J. Baumann, Esq.
(Counsel for Palm Beach County Supervisor of Elections)
515 N. Flagler Dr., Ste. 1500
West Palm Beach, FL 33401
Email: [email protected]
Jason Zimmerman, Esq.
(Counsel for Rick Scott for Senate)
301 E. Pine Street
Orlando, FL 32801
Email: [email protected]
000146
Filing # 80643401 E-Filed 11/09/2018 09:37:57 PMFiling # 80643401 E-Filed 11/09/2018 09:37:57 PM
IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
CASE NO. 50-2018-CA-014075RICK SCOTT FOR SENATE,
JUDGE Krista MarxPlaintiff,
v.
Verified Response in Opposition to
Defendant's Emergency Motion for
Reconsideration, Status Conference, and
Emergency Stay
SUSAN BUCHER, solely in her capacity as
Supervisor of Elections of Palm Beach
County, Florida,
Defendant.
PLAINTIFF RICK SCOTT FOR SENATE'S VERIFIED RESPONSE IN OPPOSITION
TO DEFENDANT'S EMERGENCY MOTION FOR RECONSIDERATION, STATUS
CONFERENCE, AND EMERGENCY STAY
Plaintiff Rick Scott for Senate ("Plaintiff'), through its undersigned counsel, hereby files
its Verified Response in Opposition to the Emergency Motion for Reconsideration, Status
Conference, and Emergency Stay (the "Motion") of Defendant Susan Bucher, solely in her
capacity as Supervisor of Elections of Palm Beach County, Florida ("Defendant"). In support of
this Response in Opposition, Plaintiff states:
INTRODUCTION AND INCORPORATION OF SUPPORTING AFFIDAVITS
As the Court is aware, on November 8, 2018 Plaintiff filed a Verified Complaint1.
for Declaratory and Injunctive Relief (the "Verified Complaint") to enjoin Defendant's
shutts.com | FORT LAUDERDALE | JACKSONVILLE | MIAMI I ORLANDO I SARASOTA | TALLAHASSEE I TAMPA I WEST PALM BEACH
000147
CASE NO. 50-20 1 8-CA-0 14075
Plaintiff's Response in Opposition
See generally Verified Complaint.ongoing violations of § 101.5614(4)(a), Fla. Stat.
Through the filing of that document, Plaintiffs undersigned counsel swore, under penalty of
perjury, that the factual allegations in the Verified Complaint were "true and correct to the
best of [her] knowledge." Id. at p. 5.
Now, in the Motion, Defendant appears to take issue with the fact that—despite2.
filing a Verified Complaint—Plaintiff did not also submit affidavits of its representatives
attesting to the truth of the allegations in the Verified Complaint. See Motion at ^[ 6.
Defendant ignores the reality that Plaintiffs submission of any affidavits was3.
Nevertheless, in an abundance of caution, Plaintiff hereby submits (andunnecessary.
incorporates into this Response in Opposition) the Affidavits of Kevin D. Rosen, Esq. and
Jonathan P. Elart, Esq., the attorneys who have been present at Defendant's processing site.
Specifically, Mr. Rosen and Mr. Hart are partners at the West Palm Beach.4.
Florida office of Shutts & Bowen LLP, which law firm represents Plaintiff in this
proceeding, together with GrayRobinson, P.A.
On November 8, 2018, Mr. Rosen, in his capacity as Plaintiffs representative,5.
appeared at 7835 Central Industrial Drive, Riviera Beach, Florida 33404, where Defendant is
conducting the post-election ballot tabulation. Mr. Rosen attempted to monitor Defendant's
compliance with the Florida Election Code and, specifically, with § 101 ,5614(4)(a).
Mr. Rosen's Affidavit is attached as EXHIBIT A.
See Fla. R. Civ. P. 1.610(a)(1)(A) ("A temporary injunction may be granted . . . only if ... 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[.]" (emphasis added)).
2
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000148
CASE NO. 50-201 8-CA-01 4075
Plaintiff's Response in Opposition
Mr. Rosen personally spoke with Defendant, who confirmed to him that all6.
originals have been kept with regard to the duplicate ballots that have been made by her staff.
Exhibit A at f 14.
Mr. Rosen was excluded from entering the area where the tabulation and7.
processing of ballots was taking place and was in fact required to stay behind a rope, with the
exception of a very brief and partial "walk-through." Id. at 'If 9. A true and correct picture of
the area taken by Mr. Rosen is attached as Exhibit A to his Affidavit.
Defendant also personally advised Mr. Rosen that when the staff determined for8.
themselves that the voter's intent appeared clear on ballots, those ballots were not being
forwarded to the Palm Beach County Canvassing Board but instead were duplicated and
processed by Defendant's staff without the Board's involvement. Id. at Tf 11. At the
conclusion of the day on November 8, 2018, Mr. Rosen was advised by Defendant that of the
roughly 650 "overvoted" and "undervoted" ballots, only 50-60 were going to be presented to
the Palm Beach County Canvassing Board on November 9, 201 8. Id. at If 12.
Jonathan Hart was present on November 9, 2018 where Defendant is conducting9.
the post-election ballot tabulation and personally witnessed Defendant's failure to abide by
the Court's ruling and Temporary Injunction Order (the "Order") of today. Mr. Hart's
Affidavit is attached as Exhibit B.
1 0. Defendant acknowledged, on the record during a Canvassing Board Meeting, that
However, whenshe and her office know about the Court's Order. Exhibit B at If 8.
Mr. Hart discussed the issue of compliance with Defendant's counsel, he was told that
Defendant did not even have a plan for compliance. Id. at ^f 9. Mr. Hart sought clarification,
on at least two more occasions, regarding Defendant's compliance plan, but Defendant's
3
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000149
CASE NO. 50-201 8-CA-014075
Plaintiffs Response in Opposition
counsel did not advise what, if anything, Defendant was doing to comply with the Court's
Order. Id. at ^ 10. As of 6 p.m. tonight, Defendant's counsel could not answer a direct
question regarding whether the Palm Beach County Canvassing Board intended to even start
its review of the affected ballots in compliance with the Court's Order. Id.
ARGUMENT: THE COURT SHOULD NOT EXCUSE DEFENDANT'S
COMPLIANCE WITH THE COURT'S NOVEMBER 9, 2018 TEMPORARY
INJUNCTION ORDER AND UNAMBIGUOUS FLORIDA ELECTION LAW
Defendant, in blatant disregard of the Court's Order, has failed and refused to11.
comply with the Order and instead has filed a Motion for Reconsideration in an attempt to
circumvent the Court's ruling requiring compliance with § 101 ,5614(4)(a). What Defendant
has failed to mention is that the statute requires that "[a]ll duplicate ballots shall be clearly
labeled 'duplicate', bear a serial number which shall be recorded on the defective ballot
and be counted in lieu of the defective ballot." § 101.5614(4)(a) (emphasis added). Thus,
instead of culling out all of the labeled "duplicate" ballots, which Defendant confirmed to
Mr. Rosen were with their originals, Defendant is failing and refusing to adhere to the
Court's Order by claiming that they are "intermixed." This argument is nothing other than a
red herring that should not be condoned by the Court.
12. Today, there have been at least 21 staff members from Defendant's office present
and instead of working on complying with the Court's Order, they have been separating
pages of ballots to make the recount easier. Exhibit B at ^ 1 1 . In fact, as of the filing of this
Response in Opposition, no one from Defendant's office has been able to confirm, to
Plaintiff, that Defendant is actually working to comply with the Court's Order. Id.
13. Defendant has simply failed to set forth any proper legal or factual basis for the
Court to alter its ruling. The filing of a motion for reconsideration does not stay the Court's
4
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000150
CASE NO. 50-201 8-CA-014075
Plaintiff's Response in Opposition
Defendant is well apprised of the urgency of the deadline and is sitting idle onruling.
purpose, to the detriment of Florida voters and in disregard of the State's interest in
conducting a fair and honest election. All case law cited in Plaintiffs Verified Emergency
Motion for a Temporary Injunction and Supporting Memorandum of Law is incorporated
herein by specific reference.
WHEREFORE, Plaintiff Rick Scott for Senate respectfully requests that the Court deny
Defendant's Motion and compel Defendant to immediately comply with the Court's
November 9, 2018 Temporary Injunction Order and, should Defendant fail to so comply,
hold Defendant in contempt of Court for disregarding the Court's ruling.
Dated: November 9, 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@gray-robinson. com
Leslie Arsenault Metz, Esq.
Florida Bar No. 98865
Email: leslie. metz@gray-robinson. com
Jason Zimmerman, Esq.
Florida Bar No. 104392
Email: jason.zimmerman@gray-
robinson.com
Jeff Aaron, Esq.
Florida Bar No. 123473
5
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000151
CASE NO. 50-20 18-CA-0 14075
Plaintiff's Response in Opposition
Email: jeffaaron@gray-robinson. com
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 on this 9th day of November, 2018, I did cause a true and correct
copy of Plaintiffs Response in Opposition to Emergency Motion for Reconsideration, Status
Conference, and Emergency Stay, to be served via email upon:
Andrew J. Baumann
Florida Bar No. 0070610
Primary email: [email protected]
Secondary email: [email protected]
Rachel B. Santana
Florida Bar No. 107667
Primary email: [email protected]
Secondary email: [email protected]
Natalie A. Kato
Florida Bar No. 87256
Primary email: [email protected]
Secondary email: [email protected]
Lewis, Longman & Walker, P.A.
515 N. Flagler Dr., Suite 1500
West Palm Beach, FL 33401
Telephone: (561) 640-0820
Facsimile: (561) 640-8202
Respectfully submitted,
/s/Aliette D. Rodz
Aliette D. Rodz, Esq.
Florida Bar No. 0173592
Email: [email protected]
200 S. Biscayne Blvd., Suite 4100
Miami, FL 33131
Office: (305) 347-7342
Facsimile: (305) 347-7742
6
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000152
CASE NO. 50-201 8-CA-014075
Plaintiff's Response in Opposition
-and-
George T. Levesque, Esq.
Florida Bar No. 555541
Email: george. levesque@gray-robinson. com
Leslie Arsenault Metz, Esq.
Florida Bar No. 98865
Email: leslie. metz@gray-robinson. com
Jason Zimmerman, Esq.
Florida Bar No. 104392
Email: jason.zimmerman@gray-
robinson.com
Jeff Aaron, Esq.
Florida Bar No. 123473
Email : jeffaaron@gray-robinson. com
GrayRobinson, P.A.
515 N. Flagler Dr., Suite 1425
West Palm Beach, FL 33401
Office: (561)268-5727
Facsimile: (561) 886-4101
Attorneysfor Plaintiff
1
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000153
EXHIBIT A
000154
IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
CASE NO. 50-201 8-CA-014075RICK SCOTT FOR SENATE,
JUDGE Krista MarxPlaintiff,
v.
Affidavit of Kevin D. Rosen, Esq.SUSAN BUCHER, solely in her capacity as
Supervisor of Elections of Palm Beach
County, Florida,
Defendant.
AFFIDAVIT OF KEVIN D. ROSEN. ESQ.
STATE OF FLORIDA )))COUNTY OF PALM BEACH
BEFORE the undersigned authority personally appeared Affiant, Kevin D. Rosen, who
after first being duly sworn, deposes and says:
My name is Kevin D. Rosen and I am over the age of eighteen (18) years old.1.
I am a partner at the West Palm Beach, Florida office of Shutts & Bowen LLP,2.
which law firm represents Plaintiff Rick Scott for Senate ("Plaintiff') in this proceeding and
in connection with legal matters arising after the 2018 general election.
I make this affidavit based on my personal knowledge. All statements contained3.
herein are true and correct.
1
000155
On November 8, 2018, I appeared at 7835 Central Industrial Drive, Riviera4.
Beach, Florida 33404, where Defendant Susan Bucher, solely in her capacity as Supervisor
of Elections of Palm Beach County, Florida ("Defendant"), is conducting the post-election
ballot tabulation.
I arrived at Defendant's processing site at 8:00 a.m. and departed at5.
approximately 6:00 p.m.
I remained at Defendant's processing site for a continuous period, with the6.
exception of a lunch break and, as such, I possess direct knowledge of the events outlined
below.
The purpose of my appearance was to monitor Defendant's (and her staffs)7.
compliance with the Florida Election Code, including by supervising Defendant's processing
and duplication ofphysically damaged, "overvoted," and "undervoted" absentee ballots.
First, Defendant prohibited me from properly observing her office's processing8.
and duplication ofphysically damaged absentee ballots.
Specifically, when I attempted to enter the area where Defendant was processing9.
and duplicating the damaged ballots, Defendant explained that I could not enter that location
to witness the events occurring there. I was excluded from entering the area where the
tabulation and processing of ballots was taking place and was required to stay behind a rope,
with the exception of a very brief and partial "walk-through" of the subject location. A true
and correct photo of this area, from November 8, 2018, is attached as Exhibit A.
10. Second, during my appearance at Defendant's processing site, Defendant advised
me that her office (rather than the Palm Beach County Canvassing Board) would undertake
the task of determining valid votes from "overvoted" and "undervoted" absentee ballots.
2
000156
1 1 . Defendant personally advised me that when her staff determined for themselves
that a voter's intent appeared clear on the ballots, those ballots would not be forwarded to the
Palm Beach County Canvassing Board, but would instead be processed and duplicated by her
staff without the Board's involvement.
At the end of the day on November 8, 2018, Defendant advised me that of the12.
roughly 650 "overvoted" and "undervoted" ballots reviewed by her staff, only 50-60 would
be presented to the Palm Beach County Canvassing Board on November 9, 201 8.
13. During my appearance at Defendant's processing site, despite my requests to be
allowed to witness the process to ensure that the duplications made were accurate, Defendant
would not allow me to do so. I also saw no one else witness the work of each individual staff
at all times. Instead, there were two staff members walking the floor while I viewed from
afar roughly 30-40 staff members.
I personally spoke with Defendant, who confirmed to me yesterday that all14.
originals have been kept with regard to the duplicate ballots that have been made by her staff.
15. I carefully reviewed Plaintiffs Verified Complaint for Declaratory and Injunctive
Relief (attached as Exhibit B) and certify that the factual allegations in that document are
true and correct.
FURTHER AFFIANT SAYETH NATJQHT;;
-KEVIN D. KOGEN
The foregoing Affidavit was acknowledged before me this 9th day of November,
2018, by Kevin D. Rosen who is personally knowiij to me or who has produced
as identification, and who, after being duly sworn,
3
000157
deposes and says that he has read the foregoing Affidavit and states the same to be true and
correct.
Dated this 9th day of November, 2018.
7-
/^TARY PUBLIC, State of Florida
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4
000158
EXHIBIT A
000159
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000160
EXHIBIT B
000161
Filing # 80580741 E-Filed 11/08/2018 07:39:41 PM
IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
CASE NO.RICK SCOTT FOR SENATE,
JUDGEPlaintiff,
v.
SUSAN BUCHER, solely in her capacity as
Supervisor of Elections of Palm Beach
County, Florida,
Verified Complaint
Defendant.
VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Plaintiff, Rick Scott for Senate ("Plaintiff'), through undersigned counsel, sues Susan
Bucher, solely in her capacity as the Supervisor of Elections of Palm Beach County, Florida
("Defendant"), and alleges.
JURISDICTION AND VENUE
This is a lawsuit for declaratory and injunctive relief under § 86.01 1, Fla. Stat.1.
2. Venue is proper in Palm Beach County, Florida because Defendant maintains her
principal places of business in Palm Beach County and because all or part of the claim for relief
at issue in this litigation arose in Palm Beach County.
PARTIES
3. Plaintiff is a federal campaign committee authorized to conduct political activity
throughout the state of Florida.
4. Defendant is responsible for overseeing the conduct of elections in Palm Beach
1
000162
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 Palm Beach
County and throughout Florida. Plaintiffs interests in enforcement of the 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 AGAINST
DEFENDANT'S VIOLATION OF § 101.5614(4)(a), FLA. STAT. REGARDING THE
PROCESSING OF PHYSICALLY DAMAGED, "OVERVOTED," AND
"UNDERVOTED" ABSENTEE BALLOTS
7. Plaintiff adopts and realleges the allegations of paragraphs 1-6 above.
Section 101.5614(4)(a), Fla. Stat., the provision of the Florida Election Code at8.
issue in this lawsuit, governs the processing of physically damaged, "overvoted," and
"undervoted" absentee ballots. That provision states, in relevant part (emphasis added):
If any vote-by-mail ballot is physically damaged so that it cannot
properly be counted by the automatic tabulating equipment, a true
duplicate copy shall be made of the damaged ballot in the
presence of witnesses and substituted for the damaged ballot.
Likewise, a duplicate ballot shall be made of a vote-by-mail ballot
containing an overvoted race or a marked vote-by-mail ballot in
which every race is undervoted which shall include all valid votes
as determined by the canvassing board based on rules adopted
by the division pursuant to s. 102.166(4)
The language of § 101.5614(4)(a) is uncomplicated and unambiguous.9.
Regarding the processing of physically damaged absentee ballots,10.
§ 101.5614(4)(a) requires the Supervisor of Elections to make true duplicate copies of all such
damaged ballots "in the presence of witnesses."
Regarding the processing of "overvoted" and "undervoted" absentee ballots,11.
2
000163
§ 101.5614(4)(a) provides that only the Canvassing Board—not the Supervisor of Elections, or
any other entity—is authorized to determine "all valid votes . . . based upon rules adopted by the
division . . No provision of the Florida Election Code (or any other legal authority) confers
upon the Supervisor of Elections (or any other entity) the power to determine which "overvoted"
or "undervoted" absentee ballots contain "valid votes," within the meaning of § 101.5614(4)(a).
That power belongs exclusively to the Canvassing Board.
1 2. Defendant is presently violating the mandates of § 101.561 4(4)(a) in two respects.
First, on November 8, 2018, Defendant refused to allow Plaintiff s representatives13.
(or the representatives of any other political party) to properly witness Defendant's processing
and duplication ofphysically damaged absentee ballots.
14. In fact, Plaintiffs representatives have only been allowed outside of the proximity
required to properly witness Defendant's staff s review and processing of the ballots. Defendant
has effectively precluded Plaintiffs representatives from making any substantive observation of
the activities of Defendant's staff, in direct violation of § 101.5614(4)(a).
The statute requires Defendant to make true duplicate copies of all physically15.
damaged absentee ballots "in the presence of witnesses." § 101.5614(4)(a). As of the filing of
this lawsuit, Plaintiffs representatives have been prohibited from witnessing and/or actually
overseeing the duplication of physically damaged absentee ballots. Plaintiffs representatives
have not even been allowed to confirm Defendant's compliance with the statute's procedure for
processing physically damaged absentee ballots.
Despite having thousands of ballots to review, Defendant provided Plaintiff s16.
representatives with a very quick partial walk-through of the area and then did not allow any
further access in reasonable proximity to Defendant's staff. Moreover, as of mid-afternoon,
3
000164
upon information and belief Plaintiff learned that there were roughly 1500 faxed-in military
ballots and to the extent that these need to be converted to a ballot, the same issues noted above
took place.
17. Second, and even more alarmingly, Defendant has failed to allow the Palm Beach
County Canvassing Board to execute its statutory duty to determine "all valid votes" from
"overvoted" and "undervoted" absentee ballots. Instead, Defendant—in violation of the express
language of § 1 0 1 .56 14(4)(a)—has made determinations regarding voter intent herself (through
her staff), and has withheld a portion of "overvoted" and "undervoted" absentee ballots from the
Palm Beach County Canvassing Board, which the Board will not be provided for review
tomorrow. As prescribed in § 101.5614(4)(a), only the Palm Beach County Canvassing Board-
not Defendant, or any other entity—is empowered by law to determine "all valid votes" from
"overvoted" and "undervoted" absentee ballots.
18. Plaintiff notified Defendant about the violations of § 101.5614(4)(a), but as of the
filing of this lawsuit, Defendant has failed to cure such violations.
There is a present, bona fide controversy over whether Defendant is presently19.
violating the mandates of § 101.5614(4)(a).
20. Plaintiffs, its candidates', and its voters' rights will be violated if the Election
Code is not followed, as Defendant's ongoing violations of § 101.5614(4)(a) jeopardizes the
integrity of, and may alter the outcome of, the 2018 general election.
2 1 . Plaintiff has no adequate remedy at law.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for judgment as follows:
A declaratory judgment that Defendant's refusal to allow Plaintiffsa.
representatives to witness Defendant's processing and duplication of physically damaged
4
000165
absentee ballots violates § 101.561 4(4)(a), Fla. Stat.
A declaratory judgment that Defendant's, rather than the Palm Beach Countyb.
Canvassing Board's, determination of "all valid votes" from "overvoted" and "undervoted"
absentee ballots violates § 101.5614(4)(a), Fla. Stat.
A temporary and permanent injunction ordering Defendant to cease violatingc.
§ 101.56 14(4)(a), Fla. Stat., and ordering Defendant (i) to have the Supervisor's staff review the
duplicate ballots together with the original damaged ballots in the presence of the Plaintiff and
any other witnesses, and if there is an objection by the witnesses, require the objected to
duplicate ballots in question to be set aside for immediate review by the Canvassing Board once
the review process is complete of all physically damaged absentee ballots and duplicate ballots,
consistent with the procedure codified in § 101.5614(4)(a); and (ii) to allow the Palm Beach
County Canvassing Board (and only that entity) to determine valid votes from "overvoted" and
"undervoted" absentee ballots, consistent with the procedure codified in § 101.5614(4)(a).
The costs of this lawsuit, together with reasonable attorney's fees to the extentd.
provided by law; and
Such further relief as the Court deems proper.e.
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 the Plaintiff
5
000166
Respectfully submitted,Dated: November 8, 2018
/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: [email protected]
Leslie Arsenault Metz, Esq.
Florida Bar No. 98865
Email: leslie.metz@gray-robinson. com
Jason Zimmerman, Esq.
Florida Bar No. 104392
Email : jason.zimmerman@gray-
robinson.com
JeffAaron, Esq.
Florida Bar No. 123473
Email: [email protected]
GrayRobinson, P.A.
515N. Flagler Dr., Suite 1425
West Palm Beach, FL 33401
Office: (561) 268-5727
Facsimile: (561) 886-4101
Attorneysfor Plaintiff
6
000167
EXHIBIT B
000168
IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
CASE NO. 50-201 8-CA-014075RICK SCOTT FOR SENATE,
JUDGE Krista MarxPlaintiff,
v.
Affidavit of Jonathan P. Hart, Esq.SUSAN BUCHER, solely in her capacity as
Supervisor of Elections of Palm Beach
County, Florida,
Defendant.
AFFIDAVIT OF JONATHAN P. HART. ESQ.
)STATE OF FLORIDA
)COUNTY OF PALM BEACH )
BEFORE the undersigned authority personally appeared Affiant, Jonathan P. Hart, who
after first being duly sworn, deposes and says:
My name is Jonathan P. Hart and I am over the age of eighteen (18) years old.1.
I am a partner at the West Palm Beach, Florida office of Shutts & Bowen LLP,2.
which law firm represents Plaintiff Rick Scott for Senate ("Plaintiff') in this proceeding and
in connection with legal matters arising after the 2018 general election.
I make this affidavit based on my personal knowledge. All of the statements3.
contained herein are true and correct.
1
000169
On November 9, 2018, 1, acting in my capacity as Plaintiffs representative,4.
appeared at 7835 Central Industrial Drive, Riviera Beach, Florida 33404, where Defendant
Susan Bucher, solely in her capacity as Supervisor of Elections of Palm Beach County,
Florida ("Defendant"), is conducting the post-election ballot tabulation.
I arrived at Defendant's processing site at approximately 8:15 a.m. and departed5.
at approximately 7:45 p.m.
Other than lunch, I remained at Defendant's processing site for a continuous6.
period and, as such, I possess direct knowledge of the events outlined below.
The purpose of my appearance was, in part, to monitor Defendant's (and her7.
staffs) compliance with the Court's November 9, 2018 Temporary Injunction Order (the
"Order"), and with the procedures codified in § 101.5614(4)(a), Fla. Stat, regarding the
processing and duplication of physically damaged, "overvoted," and "undervoted" absentee
ballots.
8. Defendant recognized on the record during a public Canvassing Board Meeting
that she and her office knew about the Court's Order.
When I initially discussed the issue of compliance with Defendant's counsel, I9.
was told that Defendant did not have a plan for compliance.
10. The above alarmed me, and I sought clarification from Defendant's counsel on at
least two more occasions throughout the day and into the evening regarding Defendant's
compliance plan with the Court Order, but Defendant's counsel did not advise what, if
anything, Defendant was planning to do to comply with the Court's Order. In fact, as late as
6:00 p.m., Defendants' counsel could not answer a direct question regarding whether or not
the Canvassing Board intended to start its review in compliance with the Court's Order.
2
000170
11. There have been staff members working since 8:30 am this morning and at 7:45
pm when I left, there were still approximately 21 staff members working. I was advised that
staff members were separating pages of ballots to make the recount easier, and I witnessed,
from behind the ropes, staff members removing ballot pages. At no time was anyone able to
confirm to me that any of the staff members were working on complying with the Court's
Order.
FURTHER AFFIANT SAYETH NAUGHT.
JONATHAN P. HART
The foregoing Affidavit was acknowledged before me this 9th day of November,
2018, by Jonathan P. Hart who is . personally knoyvn to me or who has produced
as identification, and who, after being duly sworn,
deposes and says that he has read the foregoing Affidavit and states the same to be true and
correct.
Dated this 9th day ofNovember, 2018.
£-/-\74
NOTARY PUBLIC, State7of Florida r r
tmAMANDA ARCE
Notary Public - State of FloridaCommission #GG 075451
My Comm. Expires Jun 1 3, 202 1nMArftlDfr" /Hc£:
Type/Print Name ofNotary PublicBonded through National Notary Assn.
My Commission Expires: OR j 1 3> / I
TLHDOCS 14066736 1
3
000171
IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUITIN AND FOR PALM BEACH COUNTY, FLORIDA
CIRCUIT CIVIL DIVISION AA
CASE NO. 50-2018-CA-014075-XXXX-MBRICK SCOTT FOR SENATE, Plaintiff/Petitionervs.PALM BEACH COUNTY SUPERVISOROF ELECTIONS, SUSAN BUCHER; in her official capacity as Palm BeachCounty Supervisor of Elections,Defendant.________________________________________/
ORDER ON DEFENDANT’S EMERGENCY MOTION FOR RECONSIDERATION,STATUS CONFERENCE AND EMERGENCY STAY
THIS MATTER came before the Court on November 10, 2018 on Defendant Susan
Bucher’s Emergency Mot ion For Reconsiderat ion, Status Conference and Emergency
Stay. The Court has considered the Mot ions and Plaint if f ’s Verif ied Response In
Opposit ion, the part ies’ arguments made at the November 10, 2018 hearing, the case
f ile, and the applicable law.
Defendant ’s Mot ions are Denied in Part and Granted in Part . Defendant ’s Mot ion for
Reconsiderat ion is Granted in part . The Defendant ’s 10:00 a.m. deadline for compliance
with the Court ’s Order on Plaint if f ’s Emergency Mot ion for Temporary Injunct ion dated
November 9th , is extended to noon, November 10, 2018. It is hereby ordered that there
must be substant ial compliance with providing the original and duplicate ballots that
were reviewed solely by the Defendant ’s staf f by this deadline. These ballots shall be
reviewed by the Canvassing Board. Defendant ’s Mot ion for Emergency Stay is Denied.
Page 1 of 3000172
ORDERED that Defendant SHALL substant ially provide to the County Canvassing
Board any duplicate ballots and any “overvoted” or “undervoted” ballots that have not
yet been provided to the Board for its review no later than noon, Saturday, November
10, 2018.
DONE AND ORDERED , in West Palm Beach, Palm Beach County, Florida this 10thday of November, 2018.
COPIES TO: ALIETTE D. RODZ 200 S BISCAYNE BLVD
SUITE 4100MIAMI, FL 33131
[email protected]@[email protected]
ANDREW J BAUMANN 515 N. Flagler Dr., Ste. 1500West Palm Beach, FL 33401
[email protected]@llw-law.com
BRYAN ANTHONYALMEIDA
No Address Available [email protected]@shutts.com
GEORGE TY LEVESQUE No Address Available [email protected]@[email protected]
JASON A ZIMMERMAN No Address Available [email protected]@[email protected]
JEFFREY AARON No Address Available [email protected]@gray-
Case No. 50-2018-CA-014075-XXXX-MB
Page 2 of 3000173
LESLIE A METZ No Address Available [email protected]@gray-robinson.com
MARILYN LOZADA No Address Available [email protected] KATO No Address Available [email protected] M. SANTANA No Address Available [email protected]
[email protected] BUCHER No Address Available
Case No. 50-2018-CA-014075-XXXX-MB
Page 3 of 3000174
RE
CE
IVE
D, 1
1/13
/201
8 8:
30 A
M, C
lerk
, Fou
rth
Dis
tric
t Cou
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f A
ppea
l
Filing # 80644599 E-Filed 11/10/2018 10:22:10 AM
IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
RICK SCOTT FOR SENATE,
Plaintiff,
Case No.: 50201 8CA0 1 4075XXXXMBDivision: Krista Marxv.
SUSAN BUCHER, solely in her capacity
as Supervisor ofElections ofPalm BeachCounty, Florida,
13CDD-O-
<
o
t: Defendant.3
/o
U
NOTICE OF APPEAL•G15
QNOTICE IS GIVEN Pursuant to 9.130, Fla. R. App. P., that Defendant/Appellant,
SUSAN BUCHER, solely in her capacity as Supervisor of Elections of Palm Beach County,
-C
t:3O
Uh
t-H
Florida, appeals to the Fourth District Court of Appeal, the Order on Plaintiffs Verified
Emergency Motion for a Temporary Injunction, dated November 9, 201 8, as well as the Order on
Defendant's Emergency Motion for Reconsideration, Status Conference and Emergency Stay,
dated November 10, 2018, copies ofwhich are attached hereto.
u
oCO
00
00
oCI
COCERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was served via the
Florida Court's E-filing Portal on this 10th day ofNovember, 2018 to:QUJ
>w
AlietieD. Rodz, Esquire
Shutts & Bowen LLP
200 S. Biscayne Blvd, Suite 4100Miami, FL 33131(305) 347-7342
George T. Levesque, Esquire
LeslieArsenaultMetz, EsquireJason Zimmerman, Esquire
JeffAaron, Esquire
GrayRobinson, P.A.
515 North Flagler Drive, Suite 1425
o
a
Email: [email protected] West Palm Beach, FL 33401
(561)268-5727
Email: [email protected]@grav-robinson.com
[email protected]@grav-robinson.com
OI06O22I'2
FILED: PALM BEACH COUNTY, FL, SHARON R. BOCK, CLERK, 11/10/2018 10:22:10 AM
000175
Rick Scottfor Senate v. Susan Bucher, et at.Case No. 502018CA014075XXXXMB
Notice of Appeal
/s/ Andrew J. BaumannAndrew J. Baumann
Florida Bar No. 0070610Primary Email: [email protected] Email: [email protected] Email: [email protected] B. SantanaFlorida Bar No. 107677Primary Email: [email protected] Email: [email protected], Longman & Walker, P.A.515 North Flagler Drive, Suite 1500West Palm Beach, Florida 33401Telephone: (561) 640-0820Facsimile: (561) 640-8202
NATALIE A. KATOFlorida Bar No. 87256
Primary email: [email protected] email: [email protected], Longman & Walker, P.A.315 South Calhoun Street, Suite 830Tallahassee, FL 32202Telephone: (850)222-5702
Counselfor Defendants
201060221*2
000176
IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUITIN AND FOR PALM BEACH COUNTY, FLORIDA
RICK SCOTT FOR SENATE,
Plaintiff,
CASE NO.: 50201 8CAO 14075XXXXMB
DIVISION: AAv.
PALM BEACH COUNTY SUPERVISOR
OF ELECTIONS, SUSAN BUCHER;
in her official capacity as Palm Beach
County Supervisor of Elections,
Defendant
ORDER ON PLAINTIFF'S VERIFIED EMERGENCY MOTION FOR A TEMPORARY
INJUNCTION
THIS MATTER came before the Court on November 9, 2018 on Plaintiff, Rick Scott
for Senate's ("Plaintiff') Verified Emergency Motion for a Temporary Injunction ("Motion").
The Court has considered the Motion, Plaintiffs Verified Complaint for Declaratory and
Injunctive Relief ("Complaint"), the parties' arguments made at the November 9, 2018 hearing,
the case file, and the applicable law.
Plaintiff requests declaratory and injunctive relief as well as a temporary injunction. In
the Complaint, Plaintiff requests declaratory and injunctive relief regarding the manner in which
the Supervisor of Elections processed physically damaged, "overvoted," and "undervoted"
absentee ballots. In the Motion, Plaintiff further seeks a temporary injunction ordering: (1) the
Supervisor's staff review the duplicate ballot together with the original damaged ballot in the
presence of the Plaintiff and any other witnesses, require the objected to duplicate ballots in
question to be set aside for immediate review by the Canvassing Board once the review process
is complete of all physically damaged absentee ballots and duplicate ballots; and (2) to allow the
Exhibit A
000177
Palm Beach County Canvassing Board to determine valid votes from "overvoted" and
"undervoted" absentee ballots.
After due consideration and in accordance with section 101.5614, Florida Statutes, it is
hereby
ORDERED that Defendant SHALL provide to the County Canvassing Board any
duplicate ballots and any "overvoted" or "undervoted" ballots that have not yet been provided to
the Board for its review no later than 10:00 a.m., Saturday, November 10, 2018.
DONE AND ORDERED at West Palm Beach, Florida, this 9th day ofNovember 201 8.
Office Q/ Toe Couflt
KRISTAMARX
Circuit Judge
Copies furnished to:
Aliette Rodz, Esq.
(Counsel for Rick Scott For Senate)
200 South Biscayne Blvd., Suite 4100
Miami, FL 33131
Email: [email protected]
Andrew J. Baumann, Esq.
(Counsel for Palm Beach County Supervisor of Elections)
515 N. Flagler Dr., Ste. 1500
West Palm Beach, FL 33401
Email: [email protected]
Jason Zimmerman, Esq.
(Counsel for Rick Scott for Senate)
301 E. Pine Street
Orlando, FL 32801
Email: [email protected]
000178
IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
CIRCUIT CIVIL DIVISION AA
CASE NO. 50-20 18-CA-014075-XXXX-MB
RICK SCOTT FOR SENATE,
Plaintiff/Petitioner
vs.
PALM BEACH COUNTY SUPERVISOR
OF ELECTIONS, SUSAN BUCHER;
in her official capacity as Palm Beach
County Supervisor of Elections,
Defendant.
ORDER ON DEFENDANT'S EMERGENCY MOTION FOR RECONSIDERATION,STATUS CONFERENCE AND EMERGENCY STAY
THIS MATTER came before the Court on November 10, 2018 on Defendant Susan
Buchefs Emergency Motion For Reconsideration, Status Conference and Emergency
Stay. The Court has considered the Motions and Plaintiffs Verified Response In
Opposition, the parties' arguments made at the November 10, 2018 hearing, the case
file, and the applicable law.
Defendant's Motions are Denied in Part and Granted in Part. Defendant's Motion for
Reconsideration is Granted in part. The Defendant's 10:00 a.m. deadline for compliance
with the Court's Order on Plaintiffs Emergency Motion forTemporary Injunction dated
November 9th , is extended to noon, November 10, 2018. It is hereby ordered that there
must be substantial compliance with providing the original and duplicate ballots that
were reviewed solely by the Defendant's staff by this deadline. These ballots shall be
reviewed by the Canvassing Board. Defendant's Motion for Emergency Stay is Denied.
Page 1 of 3Exh bit B
000179
Case No. 50-2018-CA-014075-XXXX-MB
ORDERED that Defendant SHALL substantially provide to the County Canvassing
Board any duplicate ballots and any "overvoted" or "undervoted" ballots that have not
yet been provided to the Board for its review no later than noon, Saturday, November
10,2018.
DONE AND ORDERED, in West Palm Beach, Palm Beach County, Florida this 10thday of November, 2018.
.50 •2010-CA-014075;XXXX. V/J Crista MautZ Chief Juage
50-201B-CA-014075-XXXX-MB 11/10/2010Krisia Marx
Chief Judge
COPIES TO:
515 N. Flagler Dr., Ste. 1500 [email protected] Palm Beach, FL 33401 [email protected]
No Address Available [email protected]
No Address Available george.levesque@gray-robinsoacom
teresa.barreiro@gray-
robinsoacom
mari-jo .lewis-wilkinson@gray-robinsoacom
ALIETTE D. RODZ 200 S B1SCAYNE BLVD
SUITE 4100
MIAMI, FL 33131
ANDREW J BAUMANN
BRYAN ANTHONY
ALMEIDA
GEORGE TY LEVESQUE
JASON A ZIMMERMAN No Address Available jasoaz immerman@gray-
robinsoacom
cindi.gamer@gray-robinsoacom
kathy5avage@gray-
robinsoacom
No Address AvailableJEFFREY AARON [email protected]
donna,flynn@gray-
Page 2 of 3
000180
Case No. 50-20 18-CA-0 14075-XXXX-MB
robinsoacom
shawria.tucker@gray-robinsoacom
No Address Available LeslieJvletz@gray-LESLIE A METZ
robinsoacom
kathleeamchugh@gray-
robinsoacom
No Address Available
No Address Available
No Address Available
MARILYN LOZADA
NATALIE KATO
RACHAEL M. SANTANA
SUSAN BUCHER No Address Available
S'AIF OF FLORIDA PALM BEACH COUNTY
1 h^rebi ceft',y that thca P Uifire foregoing is a true copy-IS H|* of the record In my office
4 1 ' ay or 1^0 ^ ?nHARON R^&QCKERK & OOMFTROIIER
/£
%
1IS
IlEFljWFPF' '
Page 3 of 3
000181
Filing # 80695949 E-Filed 11/13/2018 10:16:01 AM
IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA
RICK SCOTT FOR SENATE,
Plaintiff,
v.
SUSAN BUCHER, solely in her capacity as Supervisor of Elections of Palm Beach County, Florida,
Defendant. /
Case No.: 502018CA014075XXXXMB Division: Krista Marx
AMENDED NOTICE OF APPEAL
NOTICE IS GIVEN Pursuant to 9.130, Fla. R. App. P., that Defendant/Appellant,
SUSAN BUCHER, solely in her capacity as Supervisor of Elections of Palm Beach County,
Florida, appeals to the Fourth District Court of Appeal, the Order on Plaintiff's Verified
Emergency Motion for a Temporary Injunction, dated November 9, 2018, as well as the Order on
Defendant's Emergency Motion for Reconsideration, Status Conference and Emergency Stay,
dated November 10, 2018, copies of which are attached hereto.
01060422-1
000182
Rick Scott for Senate v. Susan Bucher, et al.
Case No. 502018CA014075XXXXMB
Amended Notice of Appeal
01060422-1 2
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was served via the
Florida Court’s E-filing Portal on this 13th day of November, 2018 to:
Aliette D. Rodz, Esquire
Shutts & Bowen LLP
200 S. Biscayne Blvd, Suite 4100
Miami, FL 33131
(305) 347-7342
Email: [email protected]
Attorney for Plaintiff
George T. Levesque, Esquire
Leslie Arsenault Metz, Esquire
Jason Zimmerman, Esquire
Jeff Aaron, Esquire
GrayRobinson, P.A.
515 North Flagler Drive, Suite 1425
West Palm Beach, FL 33401
(561) 268-5727
Email: [email protected]
/s/ Andrew J. Baumann
Andrew J. Baumann
Florida Bar No. 0070610
Primary Email: [email protected]
Secondary Email: [email protected]
Secondary Email: [email protected]
Rachael B. Santana
Florida Bar No. 107677
Primary Email: [email protected]
Secondary Email: [email protected]
Lewis, Longman & Walker, P.A.
515 North Flagler Drive, Suite 1500
West Palm Beach, Florida 33401
Telephone: (561) 640-0820
Facsimile: (561) 640-8202
NATALIE A. KATO
Florida Bar No. 87256
Primary email: [email protected]
Secondary email: [email protected]
Lewis, Longman & Walker, P.A.
315 South Calhoun Street, Suite 830
Tallahassee, FL 32202
Telephone: (850) 222-5702
Counsel for Defendants
000183
IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA
RICK SCOTT FOR SENATE, CASE NO.: 502018CA014075XXXXMB Plaintiff, DIVISION: AA
v.
PALM BEACH COUNTY SUPERVISOR OF ELECTIONS, SUSAN BUCHER; in her official capacity as Palm Beach County Supervisor of Elections,
Defendant. ________________________________________/
02&'2 0/ 1-$+/4+((:3 6'2+(+'& '.'2)'/%Y MOTION FOR A TEMPORARY INJUNCTION
THIS MATTER came before the Court on November 9, 2018 on Plaintiff, Rick Scott
U^a GT]PcTkb $iE[PX]cXUUj% JTaXUXTS ;\TaVT]Rg B^cXon for a Temporary Injunction (iB^cX^]j%(
HWT 9^dac WPb R^]bXSTaTS cWT B^cX^]& E[PX]cXUUks Verified Complaint for Declaratory and
>]Yd]RcXeT FT[XTU $i9^\_[PX]cj%& cWT _PacXTbk PaVd\T]cb \PST Pc cWT C^eT\QTa 3& ,*+2 WTPaX]V&
the case file, and the applicable law.
Plaintiff requests declaratory and injunctive relief as well as a temporary injunction. In
the Complaint, Plaintiff requests declaratory and injunctive relief regarding the manner in which
cWT Gd_TaeXb^a ^U ;[TRcX^]b _a^RTbbTS _WgbXRP[[g SP\PVTS& i^eTae^cTS&j P]S id]STae^cTSj
absentee ballots. In the Motion, Plaintiff further seeks a temporary injunction ordering: (1) the
Gd_TaeXb^akb bcPUU aTeXTf cWT Sd_[XRPcT QP[[^c c^VTcWTa fXcW cWT ^aXVX]P[ SP\PVTS QP[[^c X] cWT
presence of the Plaintiff and any other witnesses, require the objected to duplicate ballots in
question to be set aside for immediate review by the Canvassing Board once the review process
is complete of all physically damaged absentee ballots and duplicate ballots; and (2) to allow the
Exhibit A
000184
EP[\ 8TPRW 9^d]cg 9P]ePbbX]V 8^PaS c^ STcTa\X]T eP[XS e^cTb Ua^\ i^eTae^cTSj P]S
id]STae^cTSj PQbT]cTT QP[[^cb(
After due consideration and in accordance with section 101.5614, Florida Statutes, it is
hereby
ORDERED that Defendant SHALL provide to the County Canvassing Board any
Sd_[XRPcT QP[[^cb P]S P]g i^eTae^cTSj ^a id]STae^cTSj QP[[^cb chat have not yet been provided to
the Board for its review no later than 10:00 a.m., Saturday, November 10, 2018.
DONE AND ORDERED at West Palm Beach, Florida, this 9th day of November 2018.
_____________________________ KRISTA MARX Circuit Judge
Copies furnished to:
Aliette Rodz, Esq. (Counsel for Rick Scott For Senate) 200 South Biscayne Blvd., Suite 4100 Miami, FL 33131 Email: [email protected]
Andrew J. Baumann, Esq. (Counsel for Palm Beach County Supervisor of Elections) 515 N. Flagler Dr., Ste. 1500 West Palm Beach, FL 33401 Email: [email protected] [email protected]
Jason Zimmerman, Esq. (Counsel for Rick Scott for Senate) 301 E. Pine Street Orlando, FL 32801 Email: [email protected]
000185
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000188
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1S-2.027 Standards for Determining Voter’s Choice on a Ballot.
(1) Application. The standards in this rule apply to determine whether the voter has clearly indicated a definite choice for
purposes of counting a vote cast on a ballot in a manual recount as provided specifically by section 102.166, F.S.
(2) Direct recording electronic voting system.
(a) A vote cast on this voting system is valid for a particular candidate, issue choice, or judicial retention choice when the voter
marks the ballot electronically as specified in the ballot instructions.
(b) A vote cast on this voting system is valid for a particular write-in candidate when the voter types on the touch screen the
name of a write-in candidate in accordance with the ballot instructions.
(3) Optical scan voting system.
(a) A vote cast on this voting system is valid for a particular candidate, issue choice, or judicial retention choice when the voter
marks the ballot as specified in the ballot instructions.
(b) A vote cast on this voting system is valid for a particular write-in candidate when the voter writes in the name of a candidate
in the designated write-in space and fills in the oval or arrow next to the write-in candidate’s name.
(4) Manual review and tabulation.
(a) The standards under this subsection apply in all instances where a contest is not marked as specified in the ballot instructions
under subsection (2) or (3), and a manual review of the voter’s markings on a ballot is required to determine whether there is a clear
indication that the voter has made a definite choice in a contest.
(b) The canvassing board must first look at the entire ballot for consistency. Then the provisions of paragraph (c) apply to
determine whether the voter has made a definite choice in a contest, provided the voter has not marked any other contest on the
ballot, or if the voter has marked other contests, he or she has marked them in the same manner, subject to the exceptions in
subparagraphs 7., 10., and 15. The following are examples of valid votes after review for consistency:
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Ballot Situation 1: Recount in race of State Representative. The two
ovals in the first two races are filled in properly, but the voter has
circled the candidate’s name in the state representative race. Since
the voter did not mark the state representative race in the same
manner as in the other races, it cannot be determined whether the
voter has clearly indicated a definite choice for Don Nichols.
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Ballot Situation 2: Recount in race of State Representative. All
races on this ballot are marked in the same manner. Since the
ballot is consistently marked as in paragraph (c), the vote cast for
Michael Ross in the state representative race is a valid vote.
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Ballot Situation 3: Recount in State Representative race. Each race is
marked differently so that no consistency in marking exists. It cannot be
determined which marking, if any, is clearly indicative of the voter’s
choice. Therefore, the vote cast for Bernie West is not valid.
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(c) Subject to the provisions of paragraph (4)(b), the following marks constitute a valid vote as indicated for a particular
candidate, issue choice, or judicial retention choice:
1. The voter circles or underlines either the oval or arrow next to a candidate’s name, issue choice, or judicial retention choice.
Valid Vote for Ball Valid Vote for Ball
Valid Vote for Ball Valid Vote for Ball
2. The voter circles or underlines the name of a candidate, issue choice, or judicial retention choice.
Valid Vote for Arnaz Valid Vote for Arnaz
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3. The voter circles or underlines the party abbreviation associated with a candidate’s name.
Valid Vote for Benny Valid Vote for Benny
4. The voter marks an “X,” a check mark, a cross, a plus sign, an asterisk or a star, any portion of which is contained in a single
oval or within the blank space between the head and tail of a single arrow. The marking must not enter into another oval or the space
between the head and tail of another arrow.
Valid Vote for Ball Valid Vote for Ball
Invalid Vote Invalid Vote
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5. The voter draws a diagonal, horizontal, or vertical line, any portion of which intersects two points on the oval and which does
not intersect another oval at any two points. If it is a horizontal line, the line must not strike through the name of the candidate.
Valid Vote for Ball Valid Vote for Ball
Invalid Vote Invalid Vote
6. The voter draws a diagonal or vertical line that intersects an imaginary line extending from the center of the head of a single
arrow to the center of the tail of the same arrow, provided the diagonal or vertical line does not intersect the imaginary line joining
the head and tail of another arrow.
Valid Vote for Ball Invalid Vote
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7. The voter marks all the choices for a race but further clarifies a choice for a particular candidate, issue choice or judicial
retention choice by placing an additional mark or marks showing support solely for that particular candidate, issue or judicial
retention choice.
Valid Vote for Arnaz Valid Vote for Ball
Valid Vote to Keep Justice in Office
8. The voter strikes through all the choices for candidates, issue, or judicial retention except for one and also leaves the write-in
candidate space blank.
Valid Vote for Bruce
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9. The voter writes words such as “Vote for [candidate’s name],” “Count this vote” or “Vote no on amendment or referendum,”
or “I want this one,” provided there are no other markings in the race that would constitute a valid vote for a different candidate,
issue choice, or judicial retention choice pursuant to rule.
Valid Vote for Arnaz Invalid Vote
Valid “No” vote
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10. The voter fills in the majority of an oval, or the majority of the distance between the head and the tail of an arrow
designating a particular candidate, issue choice, or judicial retention choice, regardless of how other races on the ballot are marked.
Valid Vote for Arnaz Valid Vote for Arnaz
11. If a voter marks fewer candidates than there are positions to be elected for those offices, then the votes for all of those
marked candidates shall count. For example, if the voter is allowed to vote for 5 candidates in a special district election (“Vote for
5”) and the voter marks 2 candidates, the votes for those two marked candidates shall count.
Valid Votes for Arnaz and Bruce Valid Vote for Benny
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12. The voter draws an arrow from the arrow head to a particular candidate, issue choice or judicial retention choice or draws an
arrow head on the tail end of the arrow in lieu of filling in the void between the arrow head and the tail for the particular candidate,
issue choice or judicial retention choice.
Valid Vote for Arnaz Valid Vote for Bruce
13. The voter darkens or bolds the arrow head and the arrow tail but does not fill in the void between the arrow head and the
tail.
Valid Vote for Ball
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14. The voter punches the oval or the void between the arrow head and tail.
Valid Vote for Ball Valid Vote for Benny
15. The voter marks two or more choices similarly in one of the ways indicated in paragraphs 1.-14. and additionally writes in
comments such as “not this,” “ignore this,” “don’t want,” or “wrong,” or “Vote for [candidate’s name]” such that voter’s definite
choice is clearly indicated.
Valid Vote for Ball Valid Vote for Arnaz
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(5) Write-in Voting.
(a) A voter is determined to have made a definite choice for a write-in vote for the joint office of President/Vice-President if the
voter writes in either the last name of the candidate for President or the last name of the candidate for Vice-President. This standard
similarly applies to constitute a valid write-in vote for the joint office of Governor/Lieutenant Governor if the voter writes in either
the last name of the candidate for Governor or the last name of the candidate for Lieutenant Governor.
Valid Vote for Joint Qualified Write-in President and Vice President Candidates, Lenny Bruce and Sally Marr
(b) A voter is determined to have made a definite choice for a named candidate if the voter indicates a vote for a candidate named on
the ballot and also writes-in the name of that same candidate in the blank space for ‘write-in candidate’.
Valid Vote for Benny
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(c) A voter is determined to have made a definite choice for a particular candidate if the voter either writes in the name of a
qualified write-in candidate or the name of a candidate who is named on the ballot in that race, whether or not the oval or arrow
designating the selection of a write-in candidate has been marked.
Valid Vote for Smith, if Smith
is a qualified write-in candidate Valid Vote for Bruce
(d) If a voter abbreviates, misspells or varies the form of the name of a candidate in the write-in candidate space, it shall not
affect the determination of whether the voter has made a definite choice.
(e) If a voter indicates a vote for a candidate named on the ballot and also writes in a name of a different person in the write-in
candidate space, it shall be considered an overvote and none of the votes are valid for that race.
Invalid Vote Invalid Vote
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(6) Overvotes. Except as otherwise provided in subsections (4) and (5), if the voter marks more choices than there are positions
or choices for that office or issue, it shall be considered an overvote and none of the votes are valid for that race.
Invalid Vote Invalid Vote
(7) Valid Vote.
(a) A vote shall not count for any particular candidate, issue choice, or judicial retention choice at issue unless determined to be a
valid vote pursuant to this rule.
(b) If a voter does not mark a candidate, judicial retention choice, or issue choice in a contest, the valid votes for other candidates or
issues on the same ballot shall still be counted.
Rulemaking Authority 20.10(3), 97.021, 102.166(4) FS. Law Implemented 101.5614(5), 102.166(4), FS. History–New 6-6-02, Amended 10-6-08.
000203