Initial Brief to the Fourth District Court of Appeal
 
 

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

CASE NO. 00-4146
Consolidated with Case No. 00-4153

LT Case No. CL 00-10965 AB




 

                         ANDRE FLADELL, et al,

                                      Petitioners,

                         v.

                         HONORABLE JORGE LABARGA,
                         PALM BEACH COUNTY
                         CANVASSING BOARD,
                         as constituted by County Court
                         Judge Charles Burton; Supervisor
                         of Elections Theresa LePore; and
                         County Commissioner Carol Roberts;
                         GEORGE W. BUSH, DICK CHENEY,
                         AL GORE and JOE LIEBERMAN

                                   Respondents
                         __________________________________
 

                                                     FROM THE CIRCUIT COURT, FIFTEENTH JUDICIAL CIRCUIT
                                                            IN AND FOR PALM BEACH COUNTY, FLORIDA
                                                                      CASE NOS. CL -10965 AB
                                                                           CL- 10992 AF

                                                          APPELLANTS'/PETITIONERS' INITIAL BRIEF
 

                                                                                 WEISS & HANDLER, P.A.
                                                                                 HENRY B. HANDLER, ESQ.
                                                                                 DAVID K. FRIEDMAN, ESQ. DONALD FELDMAN, ESQ
                                                                                 WILLIAM J. CORNWELL, ESQ.
                                                                                 Attorneys for Petitioners
                                                                                 2255 Glades Road Suite 218A
                                                                                 Boca Raton, Florida 33431
                                                                                 (561) 997-9995/Boca Raton
                                                                                 (561) 734-8008/West Palm Beach
                                                                                 (561) 997-5280/facsimile
 

                                                                         INTRODUCTION

Petitioners have filed a complaint for declaratory, injunctive and other relief arising from the massive voter confusion that ensued  following the decision of the Palm Beach County Supervisor of Elections to use an unprecedented "butterfly" type ballot. This ballot both violates the instructions on the sample ballot and the statutory election procedures. The ballot did not have the punch holes to the right of the candidate of choice. Likewise, the ballot used in Palm Beach County was contrary to the linear format of the ballot prepared by the Department of State (which pursuant to Florida Statute 101.151(8) was sent to all Supervisors of Elections in Florida and presumably the Supervisor of Elections for Palm Beach County). (A1).

On November 20, 2000, Judge Labarga entered an order finding, as a matter of law, that he is constitutionally barred from ordering a new election or revote in the Presidential election no matter what illegality, fraud or other circumstances occurs, notwithstanding the Petitioners' pending challenge to the legality of the "butterfly" ballot (A2).

 In doing so, the court erected a distinction between Presidential elections and Congressional or other federal or state elections in which a revote was permitted. Such a distinction without providing a remedy, is unwarranted.

 Significantly, the order was entered prior to the Court conducting an evidentiary hearing to determine whether there is a factual basis for ordering a new election or revote, or statistical re-allocation. The trial court never even issued a declaratory judgment on the issue of whether the ballots violated the Florida Statutes cited in Petitioner's Second Amended Complaint. Petitioners submit that pursuant to Beckstrom v. Volusia County Canvassing Board, 707 So.2d 720 (Fla. 1998) and other applicable case law and Florida Statute 102.168(8), the trial court's order should be reversed, the Court should declare that the ballots violate the Florida Statutes cited below and order a revote. I ndeed, inBeckstrom the FloridaSupreme Court held that if a court finds "substantial noncompliance with statutory  election procedures and also makes a factual determination that reasonable doubt exists as to whether a certified election expressed  the will of the voters, then the court ... is to void the contested election even in the absence of fraud or intentional wrongdoing." Id.  at 725.

If the relief sought herein is granted, it is imperative that the evidentiary hearing proceed as scheduled on November 27, 2000 so that if the court orders a revote a special election can be held prior to the December 12, 2000 deadline imposed by 3 U.S.C.A. 5 (i.e., final determination required at least six days before the before the time fixed for the meeting of the electors).

 Alternatively, Petitioners are entitled to the issuance of a writ of mandamus to compel the Honorable Jorge Labarga to proceed with an evidentiary hearing and exercise his discretion as to whether he will order a revote, statistical reallocation of votes or other appropriate  relief.

                                                                   STATEMENT OF THE FACTS

 Petitioners were the first plaintiffs to file a lawsuit in the Palm Beach County Circuit Court challenging the legality of the infamous "butterfly" ballot used in the recent Presidential election. At least five other lawsuits challenging the legality of the ballot were filed by other plaintiffs. All of the lawsuits were eventually transferred to a single judge, the Honorable Jorge LaBarga. As a result of the failure  of the ballot to comply with Florida statutes and the misleading and confusing format of the ballot, Appellants in their Second Amended Complaint, seek injunctive and declaratory relief as well as relief under Florida Statute 102.168 ("Contest of Election"). (A3). The primary, but not only relief Petitioners seek is that the Circuit Court exercise its statutory authority under Section 102.168(8) to order a  carefully tailored revote of the Presidential Election in Palm Beach County(1) or statistical reallocation based on the proffers showing   that approximately 2,700 of the 3,407 attributed to Buchanan actually belonged to Gore as well as allocating a portion of the 19,000 overvotes (resulting from voters punching holes numbers 2 and 3) caused by the illegal ballot on a proportionate basis.

At a hearing held on November 15, 2000 the lower court requested the parties to submit briefs on the legal issue of whether it would be  possible under any circumstances for the court to order a new election or revote in Palm Beach County or whether Florida Statute103.011 which provides for elections every four years of Electors for President and Vice-President precludes such relief. Appellee, BUSH,  submitted a single case, Love v. Foster 522 U.S. 67 (1997) without any accompanying brief. Petitioners submitted a brief and a reply  brief distinguishing Love v. Foster. (A4).

 On November 17, 2000, the lower court heard oral argument on this legal issue. At that time, the court indicated that if it determined  that it had the authority to order a revote, a three-day evidentiary hearing would be held commencing on November 27, 2000. On November 20, 2000, the lower court entered an order finding as a matter of law that it had no authority to order a new election.

 The Plaintiffs in Beverly Rogers, et. al. v. The Election Canvassing Commission of the State of Florida, et. al., in Case No. 00-4153 have  attached to their brief as Composite Exhibit "A," a summary of evidence, including expert testimony that they intend to ultimately present to the Court. Petitioners were prepared to present like evidence at the evidentiary hearing and to also rely upon the evidence proffered in Rogers, supra. Accordingly, Petitioners hereby adopt and incorpora te by reference said Composite Exhibit"A" to the Rogers  brief.

                                                            Misleading Ballot Results in Voter Confusion

Unlike the other 66 counties in Florida the unusual "butterfly" ballot, (which the inventor of the Votomatic punching device used in Palm Beach County has stated in television interviews was not intended to be used with the Votomatic punching device because the   holes are too close together), was used for the November 7, 2000 Presidential Election. Palm Beach County had never before used such a ballot and was the only county in Florida to list the candidates on a two page butterfly format. Petitioner's Second Amended Complaint alleges that this ballot failed to comply with Florida statutes governing election ballots and as a resulting in voter confusion.

For example, many voters, including the Petitioners, intending to vote for Al Gore and Joe Lieberman, mistakenly punched the punch hole on the ballot card designated for the Reform Party, Pat Buchanan and Ezola Foster (hole #2). In Palm Beach County, Reform Candidates (Pat Buchannan and Ezola Foster) received 3,416 votes, an amount dramatically disproportionate to the votes they received in other Florida counties, and inexplicable as anything other than the product of massive voter confusion. Even Pat Buchanan himself
has admitted that there must be something wrong with the vote and that the bulk of such votes belonged to Gore.

The confusion was so pervasive that the Supervisor of Elections, Theresa LePore, sent a memo to poll workers which stated:

                                                       PLEASE REMIND ALL VOTERS COMING THAT THEY
                                                       ARE TO VOTE ONLY FOR ONE (1) PRESIDENTIAL
                                                       CANDIDATE AND THAT THEY ARE TO PUNCH THE
                                                       HOLE NEXT TO THE ARROW NEXT TO THE NUMBER
                                                       NEXT TO THE CANDIDATE THEY WISH TO VOTE FOR.
                                                       (Emphasis in original)

A copy of this memo is attached to the Second Amended Complaint. Unfortunately, the memo was not delivered to poll workers until sometime during the afternoon of Election Day which was too late to help those who voted in the morning and poll workers failed to communicate the contents of the memo to many persons who voted even after the memo was distributed. (Sec. Am. Compl. 17) (A2).

In addition, the holes in the ballot cards for numbers 5 (Gore and Lieberman) and 4 (Pat Buchannan and Ezola Foster) were reversed (since the Democrats were to be directly under the Republican candidates rather than assigned to punch hole #3) and in line with one  another. There were two holes next to Gore and Lieberman which, not surprisingly, were confused with the holes designated for Buchanan and Foster. As a result, many voters, intending to vote for Al Gore and Joe Lieberman punched two holes on the ballot in the mistaken belief that such holes referred to a vote for Al Gore and Joe Lieberman. (Id at 18). A total of 29,500 ballot cards submitted by voters in Palm Beach County were invalidated. Of these, over 19,000 ballot cards were invalidated as a result of two holes being punched which amounts to a significant number of the total votes cast, significantly higher than the number of ballots that were  invalidated in other counties. This extraordinary invalidation resulted from the misleading and confusing format and design of the ballots and will be decisive as to whether the Democratic or Republican candidates are elected President and Vice-President.

                                                   The Ballot Used in Palm Beach County Violates Florida Statutes

Section 102.168 Florida Statutes, sets forth various grounds for contesting election results, including but not limited to:

                              * * *
 (e) Any . . . cause or allegation which, if sustained, would show that a person other than the successful candidate was the person duly nominated or elected to the offic e in question or the outcome of theelection . . . was contrary to the result declared by the   canvassing board or election board.

 In their Second Amended Complaint, Petitioners contested the results in Palm Beach County of the November 7, 2000 Presidential election pursuant to Florida Statute 102.168, on the following grounds:

 1. Florida Statutes 101.151(3)(a) provides in pertinent part as follows:

"(3)(a) Beneath the caption and preceding the names of the candidates shall be the following words: "To vote for a candidate whose name is printed on the ballot, place a cross (X) mark in the blank space at the right of the name of the candidate for whom you desire to vote. . ." The ballot shall have headings under which shall appear the names of the offices  and names of duly nominated candidates for the respective offices in the following order: the heading "Electors for  President and Vice President" and thereunder the names of the candidates for President and Vice President of the United States nominated by the political party which received the highest vote for Governor in the last general election of the Governor in this state, above which shall appear the name of said party . . . (emphasis added).

The ballot utilized in Palm Beach County, Florida violated the above quoted provision in at least two (2) respects. First, the ballot did not  provide a space for recording a vote to the right of each candidate's name. Instead, punch holes, which appear to the right of some of    the candidates name, but to the left of other candidates' names, were utilized for registering a vote. Second, the Presidential ballot did  not appear under a heading identifying the Offices at issue (i.e., President and Vice President). The heading denominating the offices at issue (i.e., President and Vice President) do not appear at the top of the page, but rather to the far left of all of the listed candidates names and party affiliations.

2. Florida Statutes 101.151(4) provides as follows:

 (4) The names of the candidates of the party which received the highest number of votes for Governor in the last election in which a Governor was elected shall be placed first under the heading for each office, together with an appropriate abbreviation of party name; the names of the candidates of the party which received the second highest vote for Governor shall be second under the heading for each office, together with an appropriate abbreviation of the  party name. (Emphasis added).

 The ballot used in the Palm Beach County Presidential election failed to comply with the above referenced provision because (1) the  Reform Party candidates were listed higher on the ballot form than the Democratic party nominees and (2) the second hole punch provided corresponded not to the Democratic Party nominees, but rather to the Reform Party candidates. Because the Reform Party candidates were listed higher on the ballot than the Democratic Party nominees and because the hole to be punched to register a vote for the Democratic nominees appeared third on the ballot, instead of second as prescribed by law, the ballot form used in the Palm   Beach County Presidential election deviated substantially from that required by law.

3. Florida Statute 101.191 sets forth the specific ballot form to be used in a general election. The Palm Beach County "butterfly" ballot form deviated significantly from the required form in at least the following respects:

                                   1. Palm Beach County was the only County to list the
                                   Presidential candidates on two pages and it is believed that this
                                   format had never been used in a Presidential election in Palm
                                   Beach County and said format created and contributed to much
                                   vot er confusion. This ballot form wascontrary to the sample ballot
                                   form approved by the Department of State and transmitted to each
                                   Supervisor of Election of each county in Florida.

                                   2. The form of general election ballot prescribed by
                                   101.191 specifically instructs the voter to register a vote by
                                   marking a space to the RIGHT of the name of the candidate for
                                   whom one desires to vote. The Palm Beach County Presidential
                                   ballot contains punch holes both to the right and left of candidate
                                   names. This served to confuse many voters leading to voter errors
                                   and invalidated ballots.

                                   3. The sample ballot and instructions disseminated prior to
                                   the election relating to use of the ballot and punch card apparatus
                                   in Palm Beach County specifically provides under step 3 to: "Punch
                                   straight down through the hole to the right of the arrow by the
                                   candidate or issue of your choice". These instructions were
                                   misleading and confusing in light of the fact that the Presidential
                                   ballot used in Palm Beach County required voters to punch a hole
                                   to the right or left of the candidate of their choice in order to lodge
                                   their vote. Clearly, the instructions provided were at variance with
                                   the deviant ballot form actually used.

THERESA LEPORE, as Supervisor of Elections, had no discretion to change the statutorily mandated position of the Democratic candidates on the ballot.

4. Florida Statutes 101.5601 through 101.5615 set forth requirements governing electronic or electromechanical voting systems under the Electronic Voting Systems Act. Specifically, 101.5603(4) defines electronic or electromechanical voting systems as  follows:

                                   (4) "Electronic or Electromechanical Voting System" means a system
                                   of casting votes by use of voting devices or marking devices and counting
                                   ballots by employing automatic tabulating equipment or data processing equipment.

 The Votomatic polling device used in the Palm Beach County Presidential election employed punch card ballots amenable to automatic  tabulating equipment. As such, Florida Statutes 101.5609 sets forth the requirements governing the use of such ballots. In pertinent part, 101.5609 provides as follows:

                                   (2) The ballot information shall, as far as
                                   practicable, be in the order of arrangement
                                   provided for paper ballots. Ballots for all
                                   questions or propositions to be voted on shall
                                   be provided in the same manner and shall be
                                   arranged on or in the voting device, if
                                   necessary, in the places provided for such purposes.

Florida Statutes 101.5601 through 101.5615 set forth requirements governing electronic or electromechanical voting systems under the Electronic Voting Systems Act. Specifically, 101.5603(4) defines electronic or electromechanical voting systems as follows:

                                   (4) "Electronic or Electromechanical Voting System"
                                   means a system of casting votes by use of voting
                                   devices or marking devices and counting ballots by
                                   employing automatic tabulating equipment or data
                                   processing equipment.

The Votomatic polling device used in the Palm Beach County Presidential election employed punch card ballots amenable to automatic  tabulating equipment. As such, Florida Statutes 101.5609 sets forth the requirements governing the use of such ballots. In pertinent part, 101.5609 provides as follows:

                                   (2) The ballot information shall, as far as
                                   practicable, be in the order of arrangement
                                   provided for paper ballots. Ballots for all
                                   questions or propositions to be voted on shall be
                                   provided in the same manner and shall be
                                   arranged on or in the voting device, if necessary,
                                   in the places provided for s uch purposes.

Consequently, whether the Palm Beach County general election ballot form is characterized as a paper ballot, a voting machine ballot   or an electronic voting system ballot, the requirements set forth in Florida Statutes 101.151 et seq. and 101.191 apply equally. As set  forth above, these statutory requirements were not followed. The fact that sixty-six (66) of sixty-seven (67) counties in Florida used the ballot form which complied with the form prescribed in 101.191 clearly demonstrates the practicability of compliance.

Petitioners further alleged that (1) THERESA LEPORE, as Supervisor of Elections, had no discretion to change the statutorily mandated  position of the Democratic candidates on the ballot, and (2) as a result of the substantial noncompliance with statutory election procedures and the deceptive, misleading or illegal format of the ballots used in the general election in Palm Beach County, the will of the voters of Palm Beach County would be thwarted unless the relief requested in the Second Amended Complaint was granted.

Petitioners also alleged that the statutory relief requested is appropriate pursuant to Florida Statute 102.168(8)(1999) which provides:

                              The circuit judge to whom the contest is presented may
                              fashion such orders as he or she deems necessary to
                              ensure that each allegation in the complaint is investigated,
                              examined, or checked, to prevent or correct any alleged
                              wrong, and to provide any relief appropriate under the circumstances.

                         Petitioners requested in its prayer for relief that:

                              . . . the Court fashion such orders as it deems necessary to
                              ensure that each allegation in this complaint and protest is
                              investigated, examined or checked, to prevent or correct any
                              alleged wrong, and to provide any relief appropriate under
                              the circumstances, including, but not limited to, declaring the
                              general election ballot as it pertains to the Presidential
                              election to be in violation of the foregoing statutes; declaring
                              that said ballot is deceptive, confusing and/or misleading
                              such that the outcome of the general election was materially
                              affected; declaring the election results for the public office of
                              President and Vice-President to be null and void; and
                              directed that a revote or partial revote for the office of
                              President and Vice-President of the United States be held in
                              Palm Beach County, Florida which would not include votes
                              by absentee ballots on an expedited basis.
 

The Second Amended Complaint also seeks a declaratory judgment that the ballot violates the foregoing statutes and is misleading and confusing and relief which includes, without limitation, a revote.

At a hearing held on November 15, 2000 the lower court requested the parties to submit briefs on the legal issue of whether it would be   possible under any circumstances for the court to order a new election or revote in Palm Beach County or whether Florida Statute  103.011 which provides for elections every four years of Electors for President and Vice-President precludes such relief.

On November 20, 2000, the lower court entered an order finding as a matter of law that it had no authority to order a revote. (A1)

                         Petitioners has filed a petition for writ of mandamus as well as an appeal from such order.
 

                                                                           ARGUMENT

                                                                           POINT ONE

                                                                THE FEDERAL AND STATE ELECTION STATUTES WERE
                                                                MISCONSTRUED BY THE TRIAL COURT AND FEDERAL
                                                                AND STATE LAW SPECIFYING THE DATE OF THE
                                                                PRESIDENTIAL ELECTION IS CONSISTENT WITH THE
                                                                TRIAL COURT'S AUTHORITY TO ORDER A REVOTE OR
                                                                OTHER POST-ELECTION

A. The Trial Court Erred inFinding that the ContestStatute, Section 102.168 Does Not Apply To Presidential Elections

 The trial court order states that the Court "after an extensive analysis of the legislature's intent in drafting 102.168 and 103.011",concludes "that 102.168 was not intended to apply to Presidential elections." (Order at 10). In doing so, the Court does not cite any legislative history and attempts to interpret the intent of the Legislature. We respectfully disagree.

The Florida Legislature has set forth specific procedures to govern post-election contests. These procedures apply equally to all elections  held in the State of Florida and are authorized under 3 U.S.C.A. 3, 5. The Court's finding that because the statute does not mention Presidential elections, the statute does not apply, is erroneous. There is nothing unique about a Presidential electors election which exempts such elections from the ambit of the Florida election laws. Specifically, Florida Statutes 102.168 contains the legislative directives applicable to this controversy. The Florida Legislature, in accordance with Title 3 U.S.C. A. 2, provides that if the election is not decided on the proscribed day then it is left up to the state legislature to determine the manner by which the state will select the  electors. In Florida, the legislature has vested specific powers in the judiciary to remedy the failure of the state of Florida to "make a choice on the day prescribed by law."(2) Here, if the results of the election are invalidated under Florida Statute 102.168 then no person will have been elected and a special election may be held.

In addition, 103.011 must be read in pari materia with 102.168 which permits an elector or the losing candidate to contest the   certified results of an election.(3) The broad scope of the relief permitted under the statute clearly encompasses the remedy of a re-vote or other appropriate remedy such as a statistical reallocation of votes:

                              The circuit judge to whom the contest is presented may
                              fashion such orders as he or she deems necessary to
                              ensure that each allegation in the complaint is investigated,
                              examined, or checked, to prevent or correct any alleged
                              wrong, and to provide any relief appropriate under the circumstances.

                         Fla. Stat. 102.168 (8).

Significantly, and contrary to the trial court's holding, Presidential races are not excluded from the ambit of the statute. If Florida Statutes 103.011 were construed as not permitting a re-vote, it would render the contest of election statute, 102.168, meaningless.  Furthermore, unlike federal courts, Florida circuit courts are tribunals of plenary jurisdiction and have authority over any matter not "expressly denied" them by Constitution or applicable statute. Department of Revenue v. Kuhnlein, 646 So.2d 717, 719 (Fla.1994). The statute here does not "expressly" preclude circuit courts from ordering a re-vote. Nor does the Federal Constitution. It can hardly be a violation of the Federal Constitution to hold a re-vote since Article II, Sec. 1 does not even require that there be any election.

Since the Federal Constitution requires only that the state legislature determine how the Electors shall be selected, and the Federal statutes only require that such selection of the Electors be made prior to the election, Florida's long standing statutory acceptance of the possibility of a re-vote is not inconsistent with the Federal Constitution or the Federal statutory scheme for elections.

The court below also incorrectly interpreted Section 103.011. The court gives great weight (Opinion, at 8-9) to the fact that, beyond using the language for the corresponding federal statute (3 U.S.C. 1), the Florida Legislature added two additional sentences. The court holds that "[t]hese two additional sentences clearly and unambiguously set forth the procedure to be followed once the electors are elected." The court apparently considers this an exhaustive recitation of the procedure to be followed; therefore, it reasons, because there is no added sentence referring explicitly to Section 102.168, that section must not apply. Opinion at 9.

This analysis is flawed for two reasons. First, the court misapprehends the purpose of the two additional sentences in question. The first  sentence(4) merely clarifies that the ballot can have just the names of the candidates for President and Vice President, while the votes really go to the Presidential Electors. (Indeed, ballots in the past did list the Presidential Electors as well as the candidates.) The second sentence(5) merely makes clear that a plurality of the vote will suffice for the candidate to win all the Presidential Electors--rather than imposing a majority-vote requirement or providing for proportional allocation of Presidential Electors, either of which a State would  have the power to do under Art. II, Section 1 of the U.S. Constitution.(6) Properly read, these sentences do not purport to provide an exhaustive description of the post-election procedures; indeed, they do not appear to be focused on matters of "procedure" at all.

Second, the Legislature provides elsewhere for the post-election procedure to be followed in cases like this. Section 100.111(5), for example, authorizes a new election in the event of "special elections resulting from court order or other unpredictable circumstances." And Section 102.168 itself, as indicated above, applies generally to the election of a candidate for "any person to office." 102.168(1).
 

Indeed, a review of the transcript of the oral argument held on November 20, 2000 before the Florida Supreme Court, the relevant portions of which are attached hereto as Exhibit "A," reflects that the attorneys representing the Republicans, the Democrats and  members of the Florida Supreme Court all have assumed that Section 102.168 applies to Presidential Elections. The following excerpts demonstrate this:
 

                                   LEWIS: Mr. Rogow, do you have a suggestion or an interpretation
                                   for us to give meaning to the entire statutory scheme? Because
                                   we've got the 166, recount, but we also have the 168 section for
                                   contesting those results. And if this recount extends up until the
                                   eve of the reporting for the Electoral College, then we would then
                                   ride out, would we not, the provision for contesting what has
                                   occurred during this recount. (Ex. "A", p. 9-10).
 

                                   BOIES: May it please the court, let me begin by addressing Justice
                                   Lewis'' question as to how you reconcile a protest under Section
                                   166 with a contest under 168, and how that all happens within a
                                   timeframe that allows both to coexist . . .

                                   and that official return will then be certified. And at that point, we
                                   believe, 168 contest takes place, if there's going to be one ...
                                   (Emphasis added) (Ex. "A" at 13-14)

                                   LEWIS: Let's assume that the absentees and recounts come to the
                                   eve of reporting day and there is insufficient time, just as a matter
                                   of fact, to conduct a contest. So then are we not eliminating 168
                                   from our statutory scheme? (Ex. "A" at 14)

                                   WELLS: OK, in order for them to be conclusive in the Electoral College.
                                   Now, if we have then contest under 168 or we have this protest
                                   going on in Broward County, for instance, where they got some
                                   votes in the middle, how is it going to work within that time period
                                   for the votes to get totally recounted? And then if Governor Bush
                                   wan ts tocontest that, for himtogeta contest finally resolved or
                                   isn't it ---- now, let me pose my whole question ---- isn't it
                                   something that the secretary of state, as the person who has to do
                                   the certification, should separate out those that are uncontested on
                                   both sides? (Emphasis added) (Ex. "A" at 14-15)

                                   KLOCK: Well, Mr. Chief Justice, the beginning point here is that
                                   there are 6 million voters, of course. And the focus here is on
                                   72,000 of them in three selected counties. The attorney general
                                   started out by saying that the attorney general's position is that all
                                   the votes in the state of Florida be counted. But that of course is
                                   not what is under way at this point. The problem with respect to
                                   the electoral votes in Florida only occurs if the status quo is
                                   maintained, if the votes cannot be certified, if the contest procedure
                                   cannot begin. (Ex. "A" at 22)

                                   KLOCK: But, respectfully, sir, at this point and time, the only bar
                                   to that is the stay order that has been entered by this court. If the
                                   stay order is lifted, the votes can be certified. Once the votes are
                                   certified, then a contest can take place, if anyone wants to take a
                                   contest, and that may have to be done on an expedited basis.
                                   (Emphasis added) (Ex. "A" at 23)
 
 

                                   CARVIN: May it please the court, as the colloquy today indicates,
                                   there is very clear procedure for resolving all the questions that the
                                   justices have asked, and that''s set forth in the statute.

                                   You set a firm deadline, and you make sure that everybody gets
                                   their votes in at the same time, and if there are any problems in
                                   terms of voter tabulation or the kinds of questions that we''ve
                                   done, you've got to keep to that deadline so you''ll have time to do
                                   the election contest after that. (Emphasis added) (Exhibit "A" at 32)

                                   CARVIN: The question is accurately assessing the number of
                                   votes. And you only get to the question of the voter''s intent, either
                                   in a contest election or in the protest election under 166. . . (Ex. "A" at 41)

                                   MARDENBOROUGH: Well, I need to be completely candid
                                   here. Because we were an intervener, that wasn't specifically asked for in this case. . .
                                   * * *

                                   And that's a factor that a judge could take in a contest, an election
                                   contest. And that's exactly why we believe that the Florida
                                   legislature provided for both a protest provision and a contest provision

                                   WELLS: Thank you, Mr. Mardenborough.Mr. Hancock, as I
                                   indicated, I think you have 3 minutes. And I would pose this
                                   question to you, and I''d like for Mr. Boies to also respond to it:
                                   In Section 5 of Title 3, they specifically refer to contest, in that it''s
                                   for final determination of any controversy or contest concerning
                                   the appointment of electors of such state. Now, under our statute,
                                   which is 168, those contests cannot begin, as your opponents say,
                                   until such time as the ballots are certified, under its express
                                   language. (Emphasis added) (Ex. "A" at 48-49)

                                   BOIES: Your honor, I think they need not be, for the following
                                   reason. We don''t believe that Section 111 or 112 or Chapter 102
                                   says there is one and only one certification. . .
                                   There is nothing, in our view of the statute, that precludes them
                                   making a contest under 168 of the certification that has already
                                   been filed with respect to the votes other than the manually
                                   recounted votes. (Ex. "A" at 51)

The trial court (Opinion, at 6-7) conducts an incorrect textual analysis of those sections of Title 3 of the U.S. Code creating "failsafe" procedures (3 U.S.C. 2-5)incasea State's presidential elector selection remains unresolved after the election. By referring to a State's provision for "final determination of any controversy or contest concerning the appointment of ...the electors of such State, by judicial or other methods or procedures," 3 U.S.C. 5 (emphasis added), Congress made clear that it contemplated that existing mechanisms  (judicial or otherwise) for state law election contests applied to Presidential elections. Further, nothing in 3 U.S.C. 5 or any related provision of federal law requires that a special election contest mechanism be specifically enacted by a State to apply to Presidential  elections. Nonetheless, the court below requires plaintiffs to show that Section 102.168 "is the mechanism devised by the Florida legislature in response to 3 U.S.C. 2." (Opinion, at 7.) The court then rules that plaintiffs do not make this showing because Section 102.168 contains several discrete subsections which would, by their terms, not apply to Presidential elections. Id. at 8-9.

This is simply incorrect as a matter of law. By its terms, 102.168 applies generally to all election contests, for all offices, for all elections  held in the State of Florida. See 102.168(1) (application to the "election or nomination of any person to office") (emphasis added). It is  undoubtedly true that Presidential elections are unique in some respects, and that special procedures would need to be adopted in the case of a Presidential election contest. As the lower court recognized (Opinion, at 10-11), because of the statutory deadline to certify Presidential Electors, Presidential election contests would need to be held on an expedited basis, so the normal deadlines for filing the complaint and answer would need to be compressed.(7) Presumably, it would be incumbent upon plaintiffs to seek such expedited relief,  as plaintiffs in these cases have done. But this is not consistent with the notion that Section 102.168 was intended as a general election contest statute applying to "any ... office," including President. The fact that it is the only election contest statute supports this conclusion. The circuit court inserts an exception for Presidential elections completely unsupported by the statute's plain language and  in contravention of the legislative intent. Indeed, it is clear to anyone viewing the recent oral argument before the Florida Supreme Court on the question of manual recounts that the Supreme Court considers Section 102.168 to apply to Presidential elections.

                         2. Opinion at 14; see 3 U.S.C. 2
 ("Whenever any State has held an election for the purpose of choosing electors and has failed to make a choice ... the electors may be appointed on a subsequent day in such manner as the legislature of such State may direct") (emphasis added). The court apparently   took this to mean that the only permissible post-election procedure for finalizing the selection of Presidential Electors was by legislative  appointment rather than by a subsequent special election. However, that federal statute uses the word "appointed" merely because it is tracking the language of the U.S. Constitution, which provides that "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors." U.S. Constitution, Art. II, Section 1. No one denies that this language may include direct election of Presidential Electors rather than legislative appointment thereof; thus, the court's reliance on the use of the word "appointed" in 3 U.S.C. 2 is completely misplaced.

                              B. The Trial Court Erred in Finding that the U.S. Constitution and
                                   Federal and State Statutes Preclude the Ordering of a New Election

                                   1. Article 2, 1 , cl. 4 of the United StatesConstitution Does Not
                                       Require that Elections Be Held on the Same Day, Only that the
                                       Day on Which Members of the Electoral College Meet To Vote
                                       Be Uniform Throughout the United States

                              The trial court attempts to support its conclusion that Presidential election dates must be uniform by citing to the Constitution.

                                   Because Presidential elections are the only national
                                   elections held in our country, our forefathers included clear
                                   and unambiguous language in the Constitution of the United States
                                   which require that Presidential "elections" be elected
                                   on the same day throughout the United States." (Order at 5).
 

The court then concludes that Congress adopted 3 U.S.C.A. 1 in response to this Constitutional provision. In actuality, the only thing  that the Constitution requires is that the day on which the members of the electoral college meet to vote (i.e., December 18) be uniform throughout the United States. There is no constitutional requirement of a single election day as evidenced by the fact that, beginning with our very first national election, elections were held on various days throughout the United States.

                         When Congress adopted (by 3 U.S.C.A. 5) the uniform national election day of the first Tuesday following the first Monday in November, it specifically provided for the possibility that a state might not choose its electors on that date, and therefore permitted the states to have a supplemental mechanism. The trial court in its order concluded that the State of Florida had not created such a   supplemental mechanism rejecting Petitioner's claim that the election contest statute, Section 101.168 provides such a mechanism. For the reasons that follow, it is respectfully submitted that this legal conclusion is erroneous.

                              2. Florida Statute 103.011 Does Not Preclude the Relief Sought

In rendering its order, the trial court also relied upon Florida Statute 103.011 which provides in relevant part:

                              Electors of President and Vice President, known as
                              presidential electors, shall be elected on the first Tuesday
                              after the first Monday in November of each year the number
                              of which is a multiple of 4. Votes cast for the actual
                              candidates for President and Vice President shall be
                              counted as votes cast for the presidential electors
                              supporting such candidates. . .

Simply because a time for the presidential election is set out by statute, does not mean that a re-vote could not be ordered in Palm Beach County based on errors and irregularities in the election process. Such irregularities in elections have often resulted in re-votes for the purpose of clarifying voters' intentions in the voided original election. Hence, a "new" election is not sought, but rather a completion of the voided portion of the November 7, 2000 general election.

                              3 U.S.C.A 2 addresses the core issue in this case:

                                   2 Failure to make choice on prescribed day

                                   Whenever any State has held an election for the purpose of
                                   choosing electors, and has failed to make a choice on the
                                   day prescribed by law, the electors may be appointed on a
                                   subsequent day in such a manner as the legislature of such
                                   State may direct. (Emphasis added).

In the event that the lower court determines that the November 7, 2000, Presidential election in Palm Beach County was so flawed due to ballot irregularities that the certified result fails to reasonably reflect the will of the voters, and based thereupon, the court voids the  election and orders a limited re-vote, Florida will have "failed to make a choice on the day prescribed by law." 3 U.S.C.A. 2.

                         Under such circumstances "the electors may be appointed on a subsequent day in such a manner as the legislature" of Florida directs. (Emphasis added) Id. Obviously, federal law contemplates circumstances where selection of Presidential electors on a date other than  federal election day is appropriate. Further, federal law vests in the State legislatures the authority for directing the means by which such subsequent selection procedures are implemented.

The meaning of the term "failure to elect" was explored by the district court in Busbee v. Smith, 549 F.Supp. 494, 525 (D. D.C. 1982). The court in Busbee addressed this exact question at some length. In that case, defendants made precisely the sort of argument raised here-namely, that because the date for the normal election was set out by statute, the court had no authority to order a special election  to remedy voting rights violations. 549 F. Supp. at 523. The court rejected this argument, stating that "Although states ordinarily should conduct congressional elections on the date established . . . those election may, under certain circumstances, be held at other times." Id.   at 524. Construing a related statute allowing congressional elections at other times to fill a vacancy or where there is a "failure to elect," the court noted that an invalidated election resulted in one such "failure to elect," allowing for a special election to be held at a different date than the one prescribed. Id. at 525. The court reasoned, "By way of analogy, Congress did not expressly anticipate that a natural disaster might necessitate a postponement, yet no one would seriously contend that section 7 would prevent a state from rescheduling its congressional elections under such circumstances." Id.

Similarly, in Public Citizen, Inc. v. Miller, 992 F.2d 1548 (11th Cir. 1993), the issue was whether a run-off election for the U.S. Senate  violated 2 U.S.C. 7 which requires that Senators be elected on the first Tuesday following the first Monday in November. The Eleventh Circuit in the context of determining whether Georgia's majority vote statute violated this statute, explained the difference between holding an election on different day (as is discussed in Love v. Foster 522 U.S. 67 (1997) relied on by the trial court) and an incomplete election:

                              The statute respects section 7's formula for determining the
                              date for general elections, and does not permit the state to
                              circumvent holding an authentic general election on that
                              date. Furthermore, the results of that election are fully
                              binding upon the state. It is the interpretation of those
                              results, however, that is influenced by the statute. The
                              statute ensures that elections held on the the federally-
                              mandated days put into effect the will of the majority of
                              voters. Accordingly, the statute deems an election resulting
                              in a mere plurality vote to be a completed election. To
                              remedy such incompletion, the statute requires that the
                              election continue into a run-off. Although the run-off takes
                              place on a separate day, it does not negate section 7's [2
                              U.S.C. 7] effect. The run-off does not reschedule the
                              earlier election general election, nor does it negate that
                              election's outcome.

                         Id. at 1548. (Emphasis added).

 Here, Section 102.168 is clearly designed to ensure that elections held on the federally mandated days put into effect the will of the majority of voters. Although the revote takes place on a separate day, it does not negate 3 U.S.C.A. 5's effect. A revote based on confusion caused by the failure of the ballot to substantially comply with Florida Statutes does not reschedule the earlier general election. Nor does it negate the election's outcome, since such outcome cannot be accurate when, as he re,there is overwhelming  evidence that over 19,000 voters double punched the ballots in the mistaken belief that they were voting for Gore and Lieberman and that over 3,000 voters (a virtual statistical impossibility) in Palm Beach County voted for Buchanan.

The Florida Election Code contemplates that an election will be held, that the results of the election may be protested to the county canvassing board and that upon certification, an elector or a losing candidate may contest the election results.

 Therefore, even though 103.011 provides that "Electors of President and Vice President, known as presidential electors, shall be elected on the first Tuesday after the first Monday in November of each year the number of which is a multiple of 4," they are not actually "elected" until the statutory election process has been completed. If a contest of election is successful and a re-vote is ordered, the electors will not be legally "elected" until such re-vote has taken place.

To adopt the trial court's reasoning in this case would mean that in any case where a Presidential election was tainted by rampant fraud or ballot stuffing a revote could never be ordered.

Furthermore, in almost all of the cases cited below authorizing a re-vote, some statute or ordinance existed setting the time for regular elections for the offices in question. However, that does not divest a court of competent jurisdiction from the equitable discretion of ordering a re-vote to remedy a violation of voters' rights. For example, the federal congressional elections at issue in LaCaze v. Johnson, 310 So.2d 86, 89 (La.1974), Vera v. Bush, 933 F.Supp. 1341, 1350-1353 (S.D. Tex. 1996), Lowenstein v. Larkin, 288 N.E.2d 133 (N.Y.
1972) and Busbee v. Smith, 549 F.Supp. 494, 525 (D. D.C. 1982), were all subject to the federal statutory scheduling requirement of 2 U.S.C. 7, which establishes the "Tuesday next after the first Monday in November, in every even numbered year," as the day for congressional elections; nonetheless, courts undoubtedly have authority to order special congressional re-votes to remedy voting rights violations.

3 U.S.C.A. 5 specifically addresses "Determination of controversy as to appointment of (Presidential) elector." This statute provides:

                                   5. Determination of controversy as to appointment of electors.

                                   If any State shall have provided, by laws enacted prior to the day fixed for the
                                   appointment of the electors, for its final
                                   determination of any controversy or contest concerning the
                                   appointment of all or any of the electors of such State, by
                                   judicial or other methods or procedures, and such
                                   determination shall have been made at least six days before
                                   the time fixed for the meeting of the electors, such
                                   determination made pursuant to such law so existing on said
                                   day, and made at least six days prior to said time of meeting
                                   of the electors, shall be conclusive, and shall govern in the
                                   counting of the electoral votes as provided in the Constitution,
                                   and as hereinafter regulated, so far as the ascertainment of the
                                   electors appointed by such State is concerned.

As cited above, federal law defers to the States for "final determination of any controversy or contest" concerning the selection of Presidential electors. This is true regardless of whether such determination is "by judicial or other methods or procedures," and such determination "shall be conclusive . . . so far as the ascertainment of the electors appointed by such state is concerned." (Emphasis added) 3 U.S.C.A. 5. The lower court's order totally ignores the precise federal statutes which address contested Presidential elector
 elections.

These federal statut es: (1) invest power in state legislatures to prescribe methods for selecting presidential electors in those instances where there has been a failure to "make a choice" on federal election day, (2) defer to state action for final determination of any controversy or contest concerning selection of the electors, and (3) accord conclusive effect to any determination of the State procedure  addressed to such controversies or contests.

 In evaluating the legislative manner for the selection of electors, this Court must be mindful that more than statutory rights are at risk. The Florida Supreme Court in Beckstrom v. Volusia County Canvassing Board, 707 So.2d 720 (Fla. 1998) held that even an unintentional failure to comply with statutory election procedures can authorize a court to "void" an election:

                              We stress, however, that we are not holding that a court
                              lacks authority to void an election if the court has found
                              substantial unintentional failure to comply with statutory
                              election procedures. To the contrary, if a court finds
                              substantial non-compliance with statutory election
                              procedures and also makes a factual determination that
                              reasonable doubt exists as to whether a certified election
                              expressed the will of the voters, then the court in an election
                              contest brought pursuant to 102.168 Fla. Stat. (1997), is to
                              void the contested election even in the absence of fraud or
                              intentional wrongdoing. (Emphasis added)

                         Id. at 725.

Blacks Law Dictionary, 7th edition, defines "void" as meaning "of no legal effect; null." In this context, voiding a portion of the election (i.e. Palm Beach County) results, without further action, is no election for the residents of Palm Beach County. Obviously,disenfranchising over 400,000 voters is not the remedy contemplated by the Legislature in such circumstances. In order to make sense,the remedy of voiding a portion or all of an election result MUST include the further relief of a re-vote.

The power of the electorate to vote is found in the Florida Constitution, Article 6, Section 1. This court must adopt the reasoning of Boardman v. Esteva, 323 So.2d 259 (Fla. 1975) which stated that:

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

                         Id. at 263.

It is clear that no statutory scheme can deprive the voters of Florida of their constitutional right to vote.

The clear intent of the Florida Supreme Court is that courts sitting in judgment of contested certified election results have the authority to set aside such results as if they were never received. Again, the test is whether the conduct inquest ion "is so pervasivethat it thwarts the will of the people" regardless of whether the conduct is characterized as fraud, intentional wrongdoing, gross negligence or even mere negligence. Id. at 725. Accordingly, if the lower court exercises its statutory authority to void the contested Presidential election in
this County, there will only be one legal, true election reflecting the will of the voters of Palm Beach County - the re-vote ordered by the Court. Again, this re-vote cannot be an impermissible second election, if the first election was null and void to begin with.
 

                                                                           POINT TWO

                                                          THE REMEDY OF A RE-VOTE IS AUTHORIZED
                                               UNDER FLORIDA STATUTES 102.168 AND APPLICABLE CASE LAW

                              A. Contest of Election Statute, F.S. 102.168

                         The courts of Florida are empowered to hear, decide and fashion appropriate remedies in cases involving allegations that the will of the people has been thwarted through the certification of an election result. Florida Statutes 102.168 confers jurisdiction upon this court to hear disputes arising from a contested election:

                              102.168 Contest of Election. -

                              (1) ... the certification of election or nomination of any person
                              to office, or of the result on any question submitted by
                              referendum, may be contested in the circuit court by any
                              unsuccessful candidate for such office or nomination thereto
                              or by any elector qualified to vote in the election related to
                              such candidacy, or by any tax payer, respectively.

                         Fla. Stat. 102.168. (Emphasis added).

                              The specific grounds for contesting an election include the following:

                                   (e) Any other cause or allegation which, if sustained,
                                   would show that a person other than the successful
                                   candidate was the person duly nominated or elected to the
                                   office in question or that the outcome of the election on a
                                   question submitted by referendum was contrary to the result
                                   declared by the canvassing board or election Board.

                         Fla. Stat. 102.168 (3)(e)(Emphasis added)

                         The candidate, qualified elector or tax payer contesting such an election in the circuit court " is entitled to an immediate hearing." Fla. Stat. 102.168 (7). Furthermore, the circuit court has within its power the ability to fashion an appropriate remedy. Fla Stat. 102.168(8).

                         Furthermore, as noted above, the circuit court has broad power to fashion an appropriate remedy to address matters raised in the contest:

                              The circuit judge to whom the contest is presented may
                              fashion such orders as he or she deems necessary to
                              ensure that each allegation in the complaint is investigated,
                              examined, or checked, to prevent or correct any alleged
                              wrong, and to provide any relief appropriate under the
                              circumstances.

                         Fla. Stat. 102.168 (8).

                              B. Case Law

                         The Supreme Court of Florida has stated that the key question in any contested election result is: Does the certified result reflect the will of the people? Beckstrom v. Volusia County Canvassing Board, supra. In Beckstrom, the Court considered an election challenge based on allegations of improper counting and defacing of absentee ballots in a race for county sheriff. Speaking generally of the Florida courts' authority to overturn elections, the Court stated:

                              [I]f a court finds substantial noncompliance with statutory
                              election procedures and also makes a factual determination
                              that reasonable doubt exists as to whether a certified
                              election expressed the will of the voters, then the court ... is
                              tovoid t he contestedelection even in the absence of fraud
                              or intentional wrongdoing.

                         Id. at 725.

                         Thus, plaintiffs, seeking to invalidate elections, need not prove fraud or other intentional wrongdoing. In cases of "unintentional wrongdoing" by election officials, the court should void the election if it finds that "substantial noncompliance resulted in doubt as to whether a certified election reflected the will of the voters." Id. See also, Flack v. Carter, 392 So.2d 37, 39 (Fla. 5th DCA 1981) (". . . the primary consideration in such a contest is whether the will of the people has been effected.").

Therefore, to prevail on their claim in this case, plaintiffs must prove two things: (1) substantial noncompliance with Florida election statutes regarding the layout of the ballot; and (2) a resulting reasonable doubt that the election reflected the will of the voters.

There is also precedent in Florida law for voiding one election and ordering a re-vote in instances where the will of the voters would otherwise be thwarted. In Craig v. Wallace, 2 Fla. L. Weekly Supp. 517A (2d Judicial Cir. 1994), the court concluded that errors and irregularities in the election process prevented a full, fair and free expression of the public will in the election. A copy of the opinion in this case is attached hereto as Exhibit "B". The court voided the election results and ordered a re-vote for the precincts in question. There, the court held that the failure to grant injunctive relief would cause irreparable harm to the voters as they would be deprived of their right to vote and no adequate remedy at law existed. See also, Juri v. Canvassing Board of Hialeah No. 93-21848 (04) and No. 94-04341 (04) (Fla. Dade County Ct. Nov. 7, 1994) summarized in 54 U. Miami L. Rev. 625, 648, April, 2000, William T. McCauley, "Comment Florida Absentee Voter Fraud: Fashioning an Appropriate Judicial Remedy."

                         State courts can and should annul elections, even federal elections, and order re-votes when an electoral "irregularity or illegality permeates the entire election, or when there is an irregularity which makes it impossible to determine which candidate the people lawfully elected." LaCaze v. Johnson, 310 So.2d 86, 89 (La.1974). In LaCaze, a state trial court annulled a federal congressional election because one voting machine malfunctioned, resulting in only 144 missing votes. Id. at 87. Because the court concluded that the election might have been decided by those 144 missing votes, the trial court ordered a re-vote. Id. The Supreme Court of Louisiana affirmed. Id. at 86. LaCaze is not the only case where a court has ordered a re-vote in a federal election. See, e.g., Vera v. Bush, 933 F.Supp. 1341, 1350-1353 (S.D. Tex. 1996) (three-judge court) (ordering special congressional elections because of constitutional violations in districting); Busbee v. Smith, 549 F.Supp. 494, 525 (D. D.C. 1982) (three-judge court) (ordering special congressional election schedule  for the 4th and 5th Congressional Districts in Georgia); Lowenstein v. Larkin, 288 N.E.2d 133 (N.Y. 1972) (setting aside congressional election and ordering a new election because of errors by polling place officials who wrongly turned away some voters and allowed  others to vote); Fain v. Caddo Parish Police Jury, 312 F.Supp. 54, 57 (W.D. La. 1969) (requiring a special election); United States v.  Post, 297 F.Supp. 46, 51 (W.D. La. 1969) (special election required despite fact that the defendants had acted in "good faith"). See also,  State of North Dakota ex. rel. Olsen v. Bakken, 329 N.W. 2d 575 (N.D. 1983); McCavitt v. Registrars of Voters of Brockton, 434 N.E. 2d 620 (Mass. 1982); Gooch v. Hendrix, 851 P.2d 1321 (Cal. 1993).

  In fact, federal courtsrouti nely orderre-votesor special elections to remedy federal voting rights violations, both under the U.S.  Constitution and the Voting Rights Act. See, e.g., Hadnott v. Adams, 89 S.Ct. 1101, 1106 (1969) (directing "state and local officials to  conduct a special election in Greene County" Alabama); Armstrong v. Adams, 869 F.2d 410,414 (8th Cir. 1989), quoting Ketchum v. City Council of City of Chicago, Ill., 630 F.Supp. 551, 565 (N.D.Ill.1985) ("Federal courts have often ordered special elections to remedy violations of voting rights. Prospective relief alone is 'of little consequence to the many voters who sought to vote ... and could not do so effectively"); see also Cousins v. City Council, 503 F.2d 912, 914 (7th Cir.1974) (ordering special elections to remedy voting rights violations), cert. denied, 420 U.S. 992 (1975); Tucker v. Burford, 603 F. Supp. 276, 279 (N.D. Miss. 1985) (same).

Just as in Florida law, the rule is that federal courts should set aside an election, and order a re-vote or special election, if the violation involved "could very well have modified the outcome of the election." Coalition for Education v. Board of Elections, 370 F.Supp. 42, 57 (S.D.N.Y.1974), aff'd, 495 F.2d 1090 (2d Cir.1974). In Smith v. Cherry, 489 F.2d 1098 (7th Cir. 1973), cert. denied, 417 U.S. 910 (1974), the Seventh Circuit described a two-part test for obtaining re-votes similar to that set out two years ago by the Supreme Court of Florida in the Beckstrom case. The Seventh Circuit stated that a plaintiff must show (1) a "serious and substantial" violation; and (2) a "reasonable possibility" that the violation affected the outcome of the challenged election. Id. at 1103. See also, Cousins v. City Council, 503 F.2d 912, 914 (7th Cir.1974) (ordering special elections to remedy voting rights violations), cert. denied, 420 U.S. 992 (1975); Tucker v. Burford, 603 F. Supp. 276, 279 (N.D. Miss. 1985) (same). Indeed, federal courts have ordered special elections for far more technical violations than those present in this case. In Perkins v. Matthews, 400 U.S. 379 (1971), the U.S. Supreme Court noted that courts have the authority to order re-votes where a State or local government held an election without first getting the election procedure "precleared" under Section 5 of the Voting Rights Act. Id. at 397; see also Berry v. Doles, 438 U.S. 190, 193 (1978) (same). In these "preclearance" cases, re-votes were ordered without an adjudication that any actual voters' rights had been violated; the mere failure to submit a voting or electoral change for preclearance under Section 5 was all that was required for re-vote to be ordered.

In Buonanno v. Distefano, 430 A. 2d 765 (R.I. 1981) the Supreme Court of Rhode Island affirmed the State Board of Elections decision to partially nullify an election where an obvious malfunction of two voting machines had occurred. Again, the court concluded that election laws should be liberally construed to give effect to voters' intentions. Interestingly, there, much like the Plaintiffs in the instant case, the relief sought was limited to the geographic area affected by the election irregularities. In the instant case, Plaintiffs seek a re-vote limited to Palm Beach County where the confusing, deceptive and/or illegal "butterfly" ballot was utilized.

                              C. Foster v. Love Relied Upon By The Court Does Not Preclude the
                              Court From Granting the Relief of a Revote

The court below (Opinion, at 13-15) also relied upon the case of Foster v. Love, which dealt with 2 U.S.C. sec. 2, setting the uniform schedule for congressional elections. This case is inapposite in that the Federal Constitution and Congress adopted a different scheme for  the election of the House and Senate than for President of the United States. The Constituti on provides thatthe legislature is able to  judge the qualifications of its member. However, the President is elected by Electors selected by each state under each separate state's legislative directive.

 In Foster, the Court held that a state could not by statute set up as a date for the regular election of Congress a date different from that  set out in 2 U.S.C. 7. As the court below recognized (Opinion at 13), the Supreme Court explicitly recognized that States may hold runoff elections after that date.. As the court below recognized (Opinion at 13), the Supreme Court explicitly recognized that States may hold runoff elections after that date.

 In Foster, supra, the U.S. Supreme Court considered a Louisiana statute which authorized congressional elections prior to federal election day. Pursuant to state law, Louisiana held "open primary" elections for its Congressional Representatives in October of each election year. Under Louisiana's "open primary" system, candidates were submitted to voters on a single ballot without regard to party affiliation. Voters, regardless of party affiliation, were permitted to vote for the candidate of their choice. If no candidate for an office received a majority of the votes cast, the state held run-off elections, dubbed "general elections," between the top two vote-getters on federal election day (the first Tuesday after the first Monday of November). Any candidate who received a majority of the votes cast in the open primary was declared the winner and NO Congressional election was held for such seat on the federally prescribed election day.

 Foster does not address the present situation. No election contest was involved. Rather, Foster involved state action prior to federal  election day and the Court held that such state action was specifically preempted. Post-election state action, on the other hand, is  specifically contemplated and expressly authorized by federal statute. Clearly, Foster has no applicability to the present case.

Similarly, nothing in Foster upsets the longstanding rule that courts may order special elections to remedy electoral and voting rights violations. LaCaze v. Johnson, 310 So.2d 86, 89 (La.1974) (state trial court annulled a federal congressional election because one voting  machine malfunctioned, resulting in only 144 missing votes); Vera v. Bush, 933 F.Supp. 1341, 1350-1353 (S.D. Tex. 1996) (three-judge court) (ordering new congressional elections because of constitutional violations in districting); Busbee v. Smith, 549 F.Supp. 494, 525  (D. D.C. 1982) (three-judge court) (ordering new congressional election because of statutory violations in districting); Lowenstein v.  Larkin, 288 N.E.2d 133 (N.Y. 1972) (state court setting aside congressional election and ordering a new election because of errors by polling place officials who wrongly turned away some voters and allowed others to vote).

 Notably, the Supreme Court in Foster favorably cited this portion of the Busbee opinion on a related point. If it believed that its decision foreclosed a court-ordered special congressional election, it would not have cited this portion of Busbee, or else would have cited it but  made clear its disagreement on that point. For all these reasons, the lower court's reliance on Foster, as well as 2 U.S.C. 7, is  misplaced.(8)

                                                                          POINT THREE

                                                    THE TRIAL COURT ERRED IN FAILING TO CONDUCT AN
                                                EVIDENTIARY HEARING TO DETERMINE WHETHER REMEDIES
                                           AUTHORIZED UNDER 102.168 SHORT OF A REVOTE SHOULD BE GRANTED

 The relief sought in the Second Amended Complaint and the brief submitted by Plaintiffs on the legal issues ruled on by the trial court was not l imited toa revote. The trial court erred in failing to conduct an evidentiary hearing to determine whether remedies authorized under 102.168 short of revote should be granted. Other remedies also exist.

Even, assuming arguendo that this Court finds a re-vote is not a feasible remedy, alternative remedies are available which would more equitably reflect the will of the voters. For example, courts have often held that where votes are affected by election officials misconduct or other illegality - - such as the clear noncompliance alleged by plaintiffs - - one remedial option available is to statistically adjust the election totals based on examination of the overall election returns. In Hammond v. Hickel, 588 P.2d 256 (Alaska 1978), the Supreme Court of Alaska endorsed just such a procedure in its discussion of how lower courts should deal with election contests. The Court  explained that in the determination of whether electoral irregularities could have changed the election result depends on whether the irregularities introduced "bias" into the system. Id. at 260. The Court explained:

                              If the bias has tended to favor one candidate over another and the
                              number of votes affected by the malconduct can be ascertained with
                              precision, all such votes will be awarded to the disfavored candidate to
                              determine if the results of the election would be changed. If the number
                              of votes affected by the bias cannot be ascertained with precision, a new
                              election may be ordered, depending upon the nature of the bias and the
                              margin of votes separating the candidates. Boucher v. Bomhoff, 495 P.
                              2d 77 (Alaska 1972). Where the malconduct has not injected any bias
                              into the vote, but instead affects individual votes in a random fashion,
                              those votes should be either counted or disregarded, if they can be
                              identified, and the results tabulated accordingly. Finally, if the malconduct
                              has a random impact on votes and those votes cannot be precisely
                              identified, we hold that the contaminated votes must be deducted from the
                              vote totals of each candidate in proportion to the votes received by each
                              candidate in the precinct or district where the contaminated votes were
                              cast. (citing cases).

Similarly, if a specified number of votes should have been counted but are no longer available for counting, they should be added to the vote totals of each candidate in proportion to the votes received by the candidate in the precinct or district in which the votes would otherwise be counted. Id. Thus, the Court recognized that, depending on the facts of each case, a court may choose between awarding disputed votes to the disfavored candidate altogether, scheduling a special election, or making a proportional adjustment of the vote totals. Regarding the latter "pro rata" approach, the Court added that if the local election returns were such "as to render this method  unsuitable based on a statistical approach," the court should adjust the vote totals based on the statewide ratio of the candidates votes. Id. The Court added that "[t]he remedy of a re-election may be required under certain circumstances." Id., citing Finkelstein & Robbins, "Mathematical Probability in Election Challenges", 73 Columbia Law Review, 241 (1973)(describing how statistical formulas can assist courts faced with close election challenges). See also, Krauss, "Analyze This: A Physicist on Applied Politics," The New York Times, November 21, 2000 attached hereto as Exhibit "C".

Nor is this flexible approach allowing statistical readjustment of vote totals limited to Alaska law. See, e.g., Thornton v. Gardner, 195 N.E. 2d 723, 724 (Ill. 1964)(deducting illegal votes cast from each side in proportion to the total vote); Grounds v. Lowe, 193 P.2d 447,  453 (Ariz. 1948)(same);Ru ssell v. McDowell, 23 P. 183, 184 (Cal. 1980)(making findings as to some disputed votes based on testimony, and adjusting the remaining votes on a pro rata basis); see also Singletary v. Kelley, 51 Cal. Rptr. 682, 683 (Cal. 1st DCA1966)(deducting illegal votes from each candidate in proportion to the total vote).

Courts in other states have used a more intuitive, informal mathematical approach in other election contest cases to determine whether the outcome was reasonably in doubt. See, e.g., Ippolito v. Power, 241 N.E. 2d 232, 294 (N.Y. 1968)(ordering new election where there were 101 suspect votes and declared winner had only 17-vote margin out of 2827 total votes cast); Santucci v. Power, 252 N.E. 2d 128 (N.Y. 169)(same, where suspect votes totaled 650 and margin of victory was only 95 votes). While these cases often involve simple
calculations of ratios based on total vote, courts have used more sophisticated statistical techniques to discern what adjustment to the vote would be appropriate. See, e.g., Cellar v. Larkin, 335 N.Y.S. 2d 791 (Sup. Ct.) aff'd mem, 288 N.E. 2d 135 (N.Y. 1972)(in congressional election challenge, court relied on statistical probability analysis to show that number of suspect votes would have to be over 2.5 times as large to create even a one-in-a-thousand probability of changing the outcome).

The significance of the above cited authority is that the hands of the judiciary are not tied in fashioning remedies due to illegal or improper elections - - in fact legal precedent indicates that judicial involvement in rectifying such illegalities was expressly envisioned.

                                                                          POINT FOUR

                                                                   THE ALTERNATIVE RELIEF OF
                                                                   MANDAMUS IS APPROPRIATE

 Although mandamus will generally lie only to require that a judge rule on a matter and cannot require that the judge rule one way or another, where a court makes a determination that it lacks jurisdiction to hear a matter, mandamus is properly used to test the correctness of that determination. 35 Fla.Jur. 2d Mandamus and Prohibition 118; Caldwell v. Estate of McDowell, 507 So.2d 607(Fla.1987) (Mandamus was appropriate remedy to compel District Court of Appeal to reinstate appeal from denial of petition for appointment of guardian ad litem where attorney had filed order of insolvency with District Court of Appeal and thus satisfied
requirements of appellate procedure allowing indigent party to proceed with appeal when order of insolvency is rendered by lower court); Martinez v. State, 740 So.2d 1231 (Fla. 4th DCA 1999) (Mandamus is appropriate to compel a lower court to exercise its subject  matter jurisdiction if that court has erroneously determined that it lacks subject matter jurisdiction). State ex rel. Gaines Const. Co. v.  Pearson, 154 So.2d 833 (Fla.,1963)(Mandamus was proper remedy to determine correctness of determination of district court of appeal dismissing appeal from circuit court's orders on ground orders were not appealable and to compel reinstatement of appeal).

While the trial court did not determine that it lacked subject matter jurisdiction, it determination that it was prohibited by the Constitution, federal and state laws from granting a revote is clearly analogous to the lack of jurisdiction cases cited above and justifies mandamus relief.

Furthermore, the requirement that the court depart from the essential requirements of law is supported by the cases where certiorari relief was granted due to the trial court's failure to apply certain procedural or statutory requirements in a given case.

These types of orders have been reviewed by certiorari because the requirements on which they are predicated cannot be meaningfully enforced post-judgment. For example, orders dispensing with statutorily mandated presuit p rocedures in medical malpractice actions have been found to warrant certiorari review. Thus, in Commercial Carrier Corp. v. Rockhead, 639 So.2d 660 (Fla.3d DCA1994), the Third District held that an order denying motion to strike punitive damages claim as unjustified under Florida Statute 768.72 was
reviewable by certiorari. Similarly, in Escobar v. Olortegui, 662 So. 2d 1361 (Fla. 4th DCA 1995), the court used certiorari to review an order requiring respondent to furnish a corroborating affidavit of a medical expert pursuant to F.S. Ch. 766 in a dental malpractice action. The court held that review by certiorari was appropriate because the effect of the order was to abate the malpractice action until  petitioner complied with the affidavit requirement. The court concluded that this constituted irreparable harm because petitioner had a right to proceed with her suit without furnishing the affidavit, but was effectively being denied that right by the order. See also, Zelinka  v. Americare Healthscan, Inc., 763 So.2d 1173 (Fla.4th DCA 2000) (Denial of a motion to dismiss for failure to provide presuit notice  required by libel statute is a proper subject for certiorari review); Globe Newspaper Co. v. King, 658 So.2d 518 (Fla.1995)(court had certiorari jurisdiction to review whether procedural requirements of statute governing pleading of punitive damages claims had been followed); Central Florida Regional Hosp. v. Hill, 721 So.2d 404 (Fla. 5th DCA1998) (Certiorari is appropriate to review an order denying a motion to dismiss which claims the pre-suit requirements of statutes pertaining to medical malpractice have not been met).

Here, Petitioners clearly have a right to proceed with their lawsuit to establish that design and format of the "butterfly" ballot used in Palm Beach County is in violation of applicable Florida Statutes and to obtain relief that is specifically authorized under Florida Statute 102.168 - a revote or statistical reallocation.

                                                                          CONCLUSION

For all of the foregoing reasons, the Petitioners request that the Court reverse the trial court's order and direct the trial court to expeditiously proceed under Section 102.168 or in the alternative to issue a writ of mandamus directing Judge LaBarga to proceed with  an evidentiary hearing and exercise his discretion as to whether he will order a new vote or other relief.

                                                                                 WEISS & HANDLER, P.A.
                                                                                 Attorneys for Plaintiffs
                                                                                 2255 Glades Road Suite 218A
                                                                                 Boca Raton, Florida 33431
                                                                                 (561) 997-9995/Boca Raton
                                                                                 (561) 734-8008/West Palm Beach
                                                                                 (561) 997-5280/facsimile

                                                                                 BY:___________________________
                                                                                    HENRY B. HANDLER, ESQ.Florida Bar No. 259284
                                                                                    DAVID K. FRIEDMAN, ESQ. Florida Bar No. 307378
                                                                                    DONALD FELDMAN, ESQ
                                                                                    Florida Bar No. 024110
                                                                                    WILLIAM J. CORNWELL, ESQ.
                                                                                    Florida Bar No. 0782017
 

                         1. This revote would be limited to those that already voted and would not require a revote of the absentee ballots which did not use the  illegal "butterfly" ballot form.

                         2. Alternatively, Florida Statute 100.101(1) provides that if no person has been elected at a general election to fill an office which was required to be filled by election at such general election, a special election may be held.

                         3. Statutes which relate to same or to closely related subject or object are regarded as in pari materia and should be construed together  and compared with each other. Smith v. Crawford, 645 So.2d 513 (Fla. 1st DCA 1994).

                         4. "Votes cast for the actual candidates for President and Vice President shall be counted as votes cast for the Presidential Electors supporting s uch candidates." F.S. 103.011.

                         5. "The Department of State shall certify as elected the Presidential Electors of the candidates for President and Vice President who receive the highest number of votes."

                         6. Article II, Section 1 of the U.S. Constitution provides that "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors" for President. Under the text of the Constitution, a State need not have a presidential election at all, and could instead either appoint electors through the Legislature, or provide for such legislative appointment power in case no candidate received a majority of the vote. Additionally, a State could provide for allocation of electors based on the proportional share of the vote, by vote of congressional district (as do two States currently), or on the more common "winner-take-all" basis currently used by Florida.

                         7. The circuit court made a similar point regarding the "ouster" provision of a separate and distinct statute, Section 102.1682 (Opinion at 9 n.3). As hypothetically applied to presidential elections, this statute (which contains language regarding special procedures for gubernatorial ouster which arguably imply that it was not intended to reach higher than gubernatorial elections) obviously would present unique constitutional questions not relevant to this case.

                         8. The court below also discusses the policy rationales for 2 U.S.C. 7 as revealed in the legislative history discussed in Foster, noting as  particularly significant "the danger of one candidate benefiting from an undue advantage in a re-vote or new election." Opinion at 14. But ths possibility exists just as much in any judicially ordered special election, including a congressional election. Weighing that risk against the rights of the disenfranchised voters is a matter of equitable discretion for the lower court to consider after inquiring into all the relevant facts and the law--an inquiry wrongly short-circuited here by the circuit court's incorrect legal reasoning.