|
ROMINGER
LEGAL
|
||||||||||
|
Florida Case Law & Florida Court Opinions -
Florida Law
|
||||||||||
| Need Legal Help? | ||||||||||
|
NOT FINDING
WHAT YOU NEED? -CLICK HERE
|
||||||||||
 |
|
|
|
|
|
|
|
|
|
|
This
court case was taken from the Florida Court's web site. Search our site
for more cases - CLICK HERE |
|
|
Case Law - save on Lexis / WestLaw. IN THE SUPREME COURT OF FLORIDA CASE NO. SC00-2447 HARRY N. JACOBS, Appellant, vs. THE SEMINOLE COUNTY CANVASSING BOARD, et al., Appellees. ___________________________________________________________ BRIEF OF APPELLEES GEORGE W. BUSH, DICK CHENEY, AND THE REPUBLICAN PARTY OF FLORIDA ___________________________________________________________ From the Second Judicial Circuit Court, in and for Leon County, Lower Tribunal No. CV00-2816 BENJAMIN L. GINSBERG PATTON BOGGS LLP Washington, D.C. B. DARYL BRISTOW AMY DOUTHITT MADDUX BAKER BOTTS LLP Houston, Texas STUART LEVEY MILLER, CASSIDY, LARROCA & LEWIN LLP Washington, D.C. BARRY RICHARD Florida Bar No. 0105599 GREENBERG TRAURIG, P.A. Post Office Drawer 1838 Tallahassee, FL 32302 Telephone: (850) 222-6891 Facsimile: (850) 681- 0207 Counsel for Appellees George W. Bush and Dick Cheney KENNETH W. WRIGHT Florida Bar No. 0188799 SHUTTS & BOWEN LLP 20 North Orange Avenue Orlando, Florida 32801 Counsel for Appellee Republican Party of Florida TABLE OF CONTENTS TABLE OF CONTENTS............................................................................................i TABLE OF CITATIONS.........................................................................................iii STATEMENT REGARDING DISCRETIONARY JURISDICTION......................1 A. The Court Should Decline To Exercise Jurisdiction Because This Case Involves A Circuit Court's Fact Findings Applied to Established Precedent From This Court...................................................................1 B. The Court Lacks Jurisdiction Because This Contest Was Not Filed Within The Statutory Jurisdictional Deadline......................................3 C. The Appeal Must Be Dismissed For Failure to Join Indispensable Parties............................................................................................ ........4 STATEMENT OF THE CASE..................................................................................5 STATEMENT OF THE FACTS................................................................................5 SUMMARY OF THE ARGUMENT......................................................................13 STANDARD OF REVIEW.....................................................................................16 ARGUMENT..................................................................................................... ......17 I. The Circuit Court Correctly Held That There Was No Factual Or Legal Basis To Grant Appellant Any Relief...........................................................17 A. There Was Substantial Compliance With Election Laws...................19 B. There Has Been No Adverse Effect On The Sanctity Of The Ballot Or The Integrity Of The Election.............................................................26 C. There Was No "Fraud, Gross Negligence Or Intentional Wrongdoing."................................................................................ ......28 D. The Supervisor of Elections Did Not Treat The Republican And Democratic Parties Differently...........................................................35 E. Appellant Is Barred From Bringing A Post Election Challenge To Pre-Election Irregularities On Grounds Of Estoppel, Waiver and Laches............................................................................................ ......39 II. Federal Law Prohibits This Court From Disenfranchising Qualified Voters Who Properly Cast Their Vote Based On Procedural Issues That Have No Bearing On a Voter's Qualifications.............................................................42 A. 42 U.S.C. § 1971 Prevents The Court From Denying Any Individual Vote Because Of Any Error Relating To An Absentee Ballot Application When The Defect Is Not Material To Determining Whether The Voter is Qualified..........................................................42 B. The United States Constitution And Other Federal Laws Prohibit The Invalidation of These Absentee Ballots..............................................46 CONCLUSION.................................................................................................. ......48 CERTIFICATE OF SERVICE................................................................................51 CERTIFICATE OF COMPLIANCE WITH FONT REQUIREMENT..................53 TABLE OF CITATIONS CASES Assn. of Community Orgs. for Reform Now (ACORN v. Edgar), 56 F.3d 791 (2d Cir. 1995)...........................................................................................................44 Assn. of Community Organizations for Reform Now v. Miller, 129 F.3d 833 (6th Cir. 1997) ..........................................................................................................44 Attorney General ex rel Miller v. Miller, 253 NW 241 (Mich. 1934)....................26 Bailey v. Davis, 273 So.2d 422 (Fla. 1st DCA 1973)................................................3 Bane v. Bane, SC99-93, 2000 WL 1726795, (Fla. Nov. 22, 2000)..........................3 Beckstrom v. Volusia County, 707 So.2d 720 (Fla. 1998)............................18,30-31 Boardman v. Esteva, 323 So.2d 259 (Fla. 1976)..........17,18,21-22, 23- 24,25,26,41 Bolden v. Potter, 452 So.2d 564 (Fla. 1984)......................................................28,31 Burke v. Beasley, 75 So.2d (Fla. 1954)...................................................................18 Burroughs v. United States, 290 U.S. 534 (1934)..................................................44 Bush v. Palm Beach County Canvassing Bd., No. 00-836, 531 U.S. ____ (Dec. 4, 2000)...................................................................................................3 Carn v. Moore, 76 So. 337 (Fla. 1917)....................................................................31 Chicone v. State, 684 So.2d 736 (Fla. 1996)...........................................................32 Commodore Plaza v. Saul Morgan Ent., Inc., 301 So.2d 783 (Fla. 3rd DCA 1974)...................................................................................................4 Condon v. Reno, 913 F.Sup. 946 (D.S.C. 1995).....................................................44 Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638 (Fla. 1999)................................................................................................................1 6 Ex parte Yarborough, 110 U.S. 651 (1584)............................................................45 Fladell v. Palm Beach County Canvassing Board Nos., SC00-2373 & SC00-2376, Slip Op. (Fla. Dec. 1, 2000).............................................................2,25 Gilligan v. Special Road & Bridge Dist. No. 4, 77 So. 84 (Fla. 1917)...................26 Gore v. Harris, No. SC 00- 2431........................................................................1,3,26 Greenwood v. City of Delray Beach, 543 So.2d 451 (Fla. 4th DCA 1989).............41 Griffin v. Burns, 570 F.2d 1065 (1st Cir. 1977)........................................45,47,48-49 In re: Matter of Protest of Election Returns & Absentee Ballots in November 4, 1997 Election for City of Miami, 707 So.2d 1170 (Fla. 3rd DCA 1998).......................................................................................28,29,31 Jolley v. Whatley, 60 So.2d 762 (Fla. 1952)............................................23,24,25,26 Johnson v. Byrd, 429 SE 2d 923 (Ga. 1993)...........................................................44 Kinney System Inc. v. Continental Ins. Co., 674 So.2d 86 (Fla. 1996)...................40 Kinzel v. City of North Miami, 212 So.2d 327, 328 (Fla. 3rd DCA 1968)................3 Lee v. Lee, 563 So.2d 754 (Fla. 3rd DCA 1990)......................................................16 McDonald v. Miller, 90 So.2d 124 (Fla. 1954).......................................................40 McElrath v. Burley, 707 So.2d 836 (Fla. 1st DCA 1998)........................................36 McLean v. Bellamy, 437 So.2d 737 (Fla. 1st DCA 1983).........................18,23,25,37 Marks v. Stinson, 19 F.3d 873 (3rd Cir. 1994).........................................................29 Nelson v. Robbinson, 301 So.2d 508 (Fla. 2nd DCA 1974)....................................42 Oregon v. Mitchell, 400 U.S 112 (1970)................................................................46 Pearson v. Taylor, 32 So.2d 826 (Fla. 1947)....................................................39,42 Prado v. Johnson, 625 S.W.2d 368 (Tx. Civ. App. - San Antonio 1981, writ dism'd.)..................................................................................................26 State ex rel. Robbinson v. N. Broward Hosp. Dist., 95 So.2d 434 (Fla. 1957)................................................................................................................4 2 State ex rel. Titus 470 So. 309 (Fla. 1936)..............................................................26 State v. Bloom, 497 So.2d 2 (Fla. 1986)..................................................................32 Smiley v. Greyhound Lines Inc., 704 So.2d 204 (Fla. 1998)...................................16 Smiley v. Holm, 285 U.S. 355 (Fla. 1932)...............................................................44 Spiegel v. Knight, 224 So.2d 703 (Fla. 3rd DCA 1969)...........................................42 State v. Cruz, 189 So.2d 882 (Fla. 1966)...................................................................1 Stein v. Darby, 134 So.2d 232 (Fla. 1961)................................................................1 United States v. Mosley, 238 U.S. 383 (1935)........................................................45 United States v. Raines, 362 U.S. 17 (1960)...........................................................46 Voting Integrity Project, Inc. v. Bomer, 199 F.3rd 773 (5th Cir. 2000)....................47 Wilson v. Revels, 61 So.2d 491 (Fla. 1952).............................................................26 Winterfield v. Town of Palm Beach, 455 So.2d 359 (Fla. 1984).............................41 Woodlands Civic Ass'n., Inc. v. Darrow, 765 So.2d 874 (Fla. 5th DCA 2000).................................................................................................16 STATUTES 42 U.S.C. § 1971...........................................................................................42-43,46 42 U.S.C. § 1971(a)(2)(B).......................................................................................43 42 U.S.C. § 1973aa- 1..........................................................................................45,47 42 U.S.C. § 1973aa- 1(a).....................................................................................45,47 § 97.041(1), Fla. Stat................................................................................................22 § 97.041(1)(a), Fla. Stat...........................................................................................43 § 97.041(1)(b)(2), Fla. Stat......................................................................................43 § 97.041, Fla. Stat....................................................................................................39 § 98.095(2), Fla. Stat................................................................................................35 § 101.62, Fla. Stat..........................................................................................13,19,23 § 101.68(1), Fla. Stat................................................................................................22 § 101.68(2)(c), Fla. Stat...........................................................................................22 § 101.68(2)(c)(1), Fla. Stat......................................................................................24 § 102.166(1), Fla. Stat................................................................................................3 § 102.168, Fla. Stat. ........................................................................................1,13,32 § 102.168(2), Fla. Stat..............................................................................................3 § 102.168(3)(a), Fla. Stat........................................................................................26 § 102.168(4), Fla. Stat...............................................................................................4 § 103.011, Fla. Stat....................................................................................................4 § 104.047(2), Fla. Stat........................................................................................32,33 § 104.0515, Fla. Stat...........................................................................................35,39 § 104.0515(2)(a), Fla. Stat.......................................................................................39 § 119.02, Fla. Stat....................................................................................................33 § 119.07(1), Fla. Stat...............................................................................................33 § 775.082, Fla. Stat..................................................................................................33 § 775.083, Fla. Stat..................................................................................................33 § 839.13, Fla. Stat..............................................................................................34-35, CONSTITUTIONAL AND OTHER AUTHORITY U.S. Const, Article I, Section 2,..............................................................................44 U.S. Const, Article I, Section 4,..............................................................................44 U.S. Const., Article I, Section 8, cl. 18 ..................................................................44 U.S. Const. Article IV, Section 2, cl. 1...................................................................45 U.S. Const., Amend. XIV, Section 1......................................................................46 U.S. Const., Amend. XIV, Section 5.................................................................44,46 U.S. Const., Amend. XV, Section 2........................................................................44 Article I, Section 2, Fla. Const................................................................................35 Article II, Section 3, Fla. Const...............................................................................32 Article V, Section 3(b)(5), Fla. Const....................................................................1,5 Fla. R. Civ. P. 1.14(b)(7)...........................................................................................4 Advisory Opinion, Div. of Elections 98-14 (Sept. 16, 1998).................................20 Comm. on Election Reform, H.R. 99-339, Final Analysis On H.B. 281 @ III.A (Fla. July 15, 1999)........................................................................22,23 STATEMENT REGARDING DISCRETIONARY JURISDICTION In its December 8, 2000 Order, this Court instructed the parties to brief the issue of "why this Court should exercise its discretion under Article V, Section 3(b)(5), Florida Constitution." The Court should decline to hear this appeal because the court's opinion is based on the application of settled law to the facts adduced at trial. In addition, Appellees' view, this Court has no discretion, because (1) the Complaint was filed out of time; and (2) the Complaint failed to name indispensable parties. A. The Court Should Decline To Exercise Jurisdiction Because This Case Involves A Circuit Court's Fact Findings Applied To Established Precedent From This Court. The Court and the public would be better served if this Court declines to accept this appeal. As the circuit court observed, the decision in this case was based on trial court fact findings made after trial on the merits, applying well-established law that has been on the books and repeatedly upheld for over 25 years. At trial, the circuit court reviewed the evidence and evaluated the credibility of testimony, and heard arguments of counsel, and made controlling determinations of fact and mixed fact and law. The Court made numerous credibility determinations. That alone should end this matter. The circuit court rejected Appellant's claims that alleged irregularities in the pre- printed postcard request forms for absentee ballots should void all 15,000 absentee ballots, even though there was no dispute that these validly cast votes that reflected the clear intent of the voters. The court's opinion in this case creates no new law, and, though this case is not about absentee ballots themselves, is fully consistent with this Court's recent decision in Fladell v. Palm Beach County Canvassing Board, Nos. SC00-2373 & SC00-2376, Slip op. (Fla. Dec. 1, 2000), in which the Court held that a "court should not void an election for ballot form defects unless such defects cause the ballot to be in substantial noncompliance with the statutory election requirements." There is no reason for this Court to revisit those issues again. B. The Court Lacks Jurisdiction Because This Contest Was Not Filed Within The Statutory Jurisdictional Deadline. This Court lacks jurisdiction because Appellant failed to file his petition within the statutory jurisdictional deadline. Failure to file a complaint within the time frame required by the statute deprives the Court of jurisdiction. In this case, the canvassing boards officially certified the contested results on November 14, 2000. Therefore, the deadline for any judicial challenge was November 24, 2000. The subsequent ruling by this Court in Gore v. Harris, No. SC00-2346, extending the certification deadline to November 26 was vacated by the U.S. Supreme Court. Bush v. Palm Beach County Canvassing Bd., No. 00- 836, 531 U.S. ____ (Dec. 4, 2000). As a matter of law, a vacated decision is a nullity, and has no effect whatsoever. Bane v. Bane, No. SC99-93, 2000 WL 1726795, at *2 (Fla. Nov. 22, 2000) ("when a court vacates a judgment . . . the effect of that ruling is to return the case and the parties to the same position they were in before the court entered the judgment.") (Pariente, J.). As of this date, this Court still has not issued any new opinion in compliance with the express direction of the U.S. Supreme Court. Therefore the original certification date, and not the extended date set by this Court, is the legally binding date for purposes of determining whether Appellant's contest action was filed within the jurisdictional time limit. Because Appellant's Complaint was not filed until November 27, 2000, it is untimely, and this Court lacks jurisdiction to hear this appeal. C. The Appeal Must Be Dismissed For Failure To Join Indispensable Parties. Section 102.168(4), if applicable, requires the compulsory joinder of each "successful candidate" as an indispensable party. Under this provision, the "successful candidates" are the Republican presidential electors, who were elected and certified under § 103.011. However, Appellant failed to join as defendants the twenty-five presidential electors who have been certified pursuant to § 103.011. Thus, pursuant to Florida Rule of Civil Procedure 1.14(b)(7), Appellant's Complaint must be dismissed for failure to join indispensable parties. See, e.g., Commodore Plaza, Etc. v. Saul Morgan Ent., Inc., 301 So. 2d 783 (Fla. 3rd Dist. Ct. App. 1974). STATEMENT OF THE CASE On November 27, 2000, Appellant filed this action in Leon County Circuit Court. Trial was held on December 6 and 7, 2000. On December 8, 2000, the circuit court issued an order stating its findings of fact and conclusions of law, and entered a final judgment in favor of Appellees. On the same day, Appellant filed a notice of appeal to the District Court of Appeal, First District, which certified the matter to this Court pursuant to Article V Section 3 (b)(5) of the Florida Constitution. STATEMENT OF THE FACTS Before the November 2000 general election, in an effort to facilitate absentee voting, Florida's Republican and Democratic Parties, statewide, provided potential voters with pre-printed absentee ballot request forms, which pre-printed certain public and easily ascertainable information, such as the voter's name, address, and voter identification number. (Stip. ¶ 7). Democrats used similar pre- printed requests. However, the Democrat forms were addressed back to Democratic headquarters. (Stip. ¶ 28). The Democratic request forms were mailed to Democratic headquarters, handled by and in the possession of Democratic representatives, and thereafter delivered by Democratic representatives to the Seminole County Office of the Supervisor of Elections. Id.; (Tr. 166-168.) With respect to the Republican Party request forms, what was intended as a convenience to voters was marred by a computer error. As a result, many of the voter identification numbers were misprinted, and distributed to prospective Seminole County voters. (Stip. ¶¶ 4, 5, 33.) The forms were pre-printed to be returned directly by the voter to the Office of the Supervisor of Elections for Seminole County. (Stip. ¶ 33). These Republican request forms did not inform prospective voters that a voter registration number was required. (Stip. ¶ 3.) Despite containing incorrect or missing voter registration numbers, these cards were mailed by prospective voters to the Supervisor of Elections, thus clearly evidencing their intent to obtain a ballot. (Stip. ¶ 5.) After receipt by the Supervisor of Elections, the misprinted forms were set aside and initially were not processed. Absentee ballot packages were not sent to voters at that time. (Stip. ¶ 8.) However, the request forms were in no way "rejected." The Republican Party subsequently recognized its mistake and acted to ensure that prospective voters who had relied on the misprinted request forms, and were expecting to receive absentee ballots, would not be prevented from receiving their ballots due to no fault of their own. In October 2000, a member of the Florida Republican Party contacted Sandra Goard, Supervisor of Elections of Seminole County, by telephone and obtained permission for a Republican party representative to come to the Office of the Supervisor for the sole purpose of correcting misprinted voter registration numbers on the Republican request forms. (Stip. ¶¶ 6, 7, 44, 46; Tr. 122:8-16; Tr. 129:25 through 131:2; Tr. 132:23 through 134:5.) Neither Goard nor Office employees initiated this process, (Tr. 150:1-8; 162:9-12), and provided no assistance beyond a table and a place to sit. Before any part of the balloting process well before the election Goard permitted Michael Leach, a representative of the Republican Party, and for a brief time two other representatives, to have access to the Republican request forms in question. (Stip. ¶ 10.) Mr. Leach worked in a high-traffic area in the Office from approximately mid October to approximately early November, 2000, with an Office employee sitting next to him for most of the time, and using a laptop computer that he brought with him that contained voter identification numbers, to hand-write the correct voter registration numbers onto many of these request forms. (Stip. ¶ 12; Tr. 123:18 through 124:15; Tr. 125:5-12; Tr. 254:14 through 255:8; Leach Depo. 74:7-18; Bailey Depo. 22:18-20.) It is undisputed that the only addition to the forms was a correct identification number. Notably, Leach corrected or supplied the voter registration numbers to request forms that were signed and submitted by both registered Republicans and Democrats who had used the pre-printed Republican form. (Stipulation regarding Michael Leach Deposition, Tr. 254:14 through 255:8; Leach Depo. 21:10-21; 30:25 through 31:8.) After the Republican representatives corrected voter registration number information on request forms, and nothing more, the Office of the Supervisor of Elections processed the requests and mailed to voters absentee ballot materials for consideration and processing by voters. (Tr. 123:18 through 124:10; Tr. 127:17-24; Tr. 140:16-25.) Although Leach was physically in an area near Office of Supervisor computers, he did not have passwords and thus no access to confidential information of any kind. (Tr. 254:14 through 255:8; Leach Depo. 75:4-5.) (Leach Depo. 74:25 through 75:3; Tr. 255:9- 11; Bailey Depo. 22:15-17; Tr. 126:14-23.) There was no access to Office documents, voting equipment, ballots, or absentee ballot request forms other than the Republican forms that were corrected. (Leach Depo. 75:6-9.) Nor did they alter any other information already on the requests. (Tr. 150:9-15.) In fact, Leach and his colleagues did not do anything in the Office that would detrimentally affect any of its operations. (Leach Depo. 75:10-12; Tr. 163:7 through 165:11.) No other party had this problem or requested this accommodation. There were no systemic printing errors on the Democratic cards, and, in any event, those cards were forwarded to Democratic headquarters, where they could be corrected before being delivered. (Tr. 138:4 through 140:15; Tr. 142:1-12; Tr. 151:16 through 153:7; Tr. 162:5- 8.). The Supervisor would have afforded Democratic representatives or others the same opportunity. (Stipulation regarding Michael Leach Deposition Tr. 254:14 through 255:8; 36:11-13; 73:13 through 74:6). The Office was a non-partisan office, and the employees treated all political parties equally. Of the 15,594 domestic absentee ballots that were returned and counted, it is uncontested that 15,504 cast valid, countable votes in the Presidential election. (Stip ¶ 32). Of these, 10,006 votes were counted for defendants Bush and Cheney and 5,209 votes were counted for Gore and Lieberman. Id. These votes were included in the totals certified by defendant Seminole County Canvassing Board. Id. The Board's Certificate is included in the Record, as is the Report of the Board. (Stip. Exhs. 2-4). The Office of the Supervisor of Elections for Seminole County received 2,126 misprinted absentee ballot request forms on the pre- printed Republican postcards. (Stip. ¶ 34). The Supervisor of Elections processed the corrected Republican forms and issued absentee ballots to the 2,126 applicants. (Stip. ¶ 35). Of the 2,126 applicants, 1,932 returned absentee ballots to the Seminole County Office of Elections. (Stip. ¶ 36). All or most of these 1,932 absentee ballots were counted and included in the certified vote total in the November 7, 2000 general election. Id. Of these 1,932 persons whose ballots were returned, 1,833 were registered Republicans, and approximately 54 were registered Democrats. (Stip. ¶ 37). When an absentee ballot request form was processed, an absentee ballot packet was issued which included an envelope with a certification form on the back, a secrecy envelope, voter instructions, and an absentee ballot. (Stip. ¶ 21; Tr. 171-172). There is no evidence that Republican representatives had possession of, altered, added to or otherwise improperly included any information to or on any absentee ballot or the accompanying materials forwarded by the Office of the Supervisor to voters in response to absentee ballot requests. (Stip. ¶ 21). In fact, the law and the evidence demonstrates that the procedures and extensive security measures designed to protect the integrity of the ballot itself are entirely unaffected by absentee ballot request forms. (Tr. 171:2 through 176:25). As of election day, 472 of the corrected Republican cards remained unprocessed. (Def. Ex. 12.) Of that number, 209 received absentee ballots from other requests and only 263 did not receive absentee ballots. Id. Of the 263 applicants, all but 46 people in fact voted at the polls. Id. Obviously, then, if the absentee ballot requests corrected by the Republican Party had never been processed, there was no believable evidence that these voters would not have voted in any event. There were only 40 pre-printed Democratic Party cards absentee ballot request cards that were unprocessed by the Supervisor's office. (Tr. 268-269; 271-272; Def. Ex. 12) Of those applicants, 37 received absentee ballots pursuant to other requests. (Tr. 270-272; Def. Ex. 12). Only three Democratic Party cards were unprocessed. (Tr. 270; Def. Ex. 12.) There were only 243 unprocessed "miscellaneous" absentee ballot requests, that is, not on either party's pre-printed request forms. (Tr. 270-271). Of those applicants, 133 either received an absentee ballot pursuant to another request or voted at the polls. (Def. Ex. 12.) SUMMARY OF THE ARGUMENT Although this case has drawn national attention, it boils down to a straightforward application of well-established Florida law to facts presented at trial, just like any other lawsuit. After listening to the testimony and weighing the credibility of over 30 witnesses, the circuit court made key findings of fact and findings of mixed fact and law. Based on those findings, the court found that Appellant did not meet his burden of proof under the contest provisions in § 102.168, Fla. Stat. The court's factual determinations are supported by substantial competent evidence, and should not be disturbed by this Court. Appellant has alleged irregularities in the requests for absentee ballots, not in the absentee ballots themselves. Based on the facts presented, the circuit court determined that there is no evidence of fraud, gross negligence or intentional misconduct by election officers or the Republican Party. The court held that the correction of voter registration numbers on the request forms by representatives of the Republican Party, while perhaps a technical violation of a "directory" provision of § 101.62 of the election statute, was not a substantial non-compliance with elections law, and had no effect on the integrity of the ballots or the integrity of the election. Appellant presented no evidence at all that the ballots themselves had been affected or that the election did not reflect the clear will of the voters. Appellant's arguments presume against all common sense that the absentee voters would not have voted had the registration numbers not been corrected on the Republican forms. Indeed, their expert witness did not even give an opinion on that issue. The evidence in this case demonstrated that the absentee voters at issue likely would have made other arrangements to cast a vote if their original request for a ballot had been rejected. As to Appellant's allegations of disparate treatment by the Seminole County Supervisor of Elections, the circuit court found after weighing and evaluating the credibility of witnesses and other evidence, that the facts failed to show that the Supervisor treated, or would have treated, other parties differently than she treated the Republican Party. Unlike the Republican Party's pre-printed forms, the Democratic mail-out did not suffer from misprinted voter identification numbers. The Democrats did not need, nor did they request, access to request forms to make corrections. These findings of fact are matters within the unique purview of a trial court's discretion and should not be disturbed on appeal. Since Appellant essentially based his entire case on state of mind issues and claims of disparate treatment, the circuit court's factual findings regarding state of mind and disparate treatment should be conclusive. Although the court did not have to reach the issue, the uncontested evidence also established as a matter of law that Appellees' affirmative defenses of estoppel, waiver, and laches. The facts showed that the Democratic Party, knew well before the election of the misprints on Republican request forms and of the attempts to correct them, but consciously chose not to raise any objection until after the election. As this Court has long held, an aggrieved party is estopped from attacking the outcome of the election when he could have made his complaints to the proper authorities before the election. The circuit court's decision is not only supported by the evidence, but it is compelled under federal law. Both the U.S. Constitution and federal statutes prevent the county canvassing boards, the circuit court, and this Court from denying voters the right to vote especially in a Presidential election based on mere technicalities in the voting process that have no relation to whether the voters who voted were qualified to do so. There is no dispute in this case that the absentee votes at issue were cast by qualified voters. It cannot be the law that a technical error like the one in this case, which is known before the election, at a time when it can be corrected, can be saved for later, allowing a plaintiff to "lie behind the log" until after election day, and then object in an attempt to disenfranchise thousands of voters who did nothing wrong. STANDARD OF REVIEW The trial court's findings of fact will not be set aside unless "totally unsupported by competent and substantial evidence." Lee v. Lee, 563 So. 2d 754, 755 (Fla. 3rd Dist. Ct. App. 1990). Factual conclusions are "clothed with a presumption of correctness." Smiley v. Greyhound Lines, Inc., 704 So. 2d 204, 205 (Fla. 5th Dist. Ct. App. 1998). This Court does not review evidence de novo, substituting its own opinion of the facts and credibility of the witnesses for that of the trial court. Rather, this Court "must indulge every fact and inference in support of the trial court's judgment, which is the equivalent of the jury verdict." Id. The judgment of the trial court "will be upheld if there is any basis which would support the judgment in the record." Dade County Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644-45 (Fla. 1999) (citing numerous decisions). In this Court, any disputed issues of fact must be reviewed in the light most favorable to the prevailing party, and the findings and rulings of the circuit court should be affirmed unless they are unsupported by any basis in the record. See Woodlands Civic Ass'n, Inc. v. Darrow, 765 So. 2d 874, 876 n.3 (Fla. 5th Dist. Ct. App. 2000). In this case, the circuit court based its decision "on the facts as they were developed during the trial of this matter." (Final Order at 1.) The court's factual findings are presumptively correct and are fully supported by the evidence presented in this case. Therefore, the Final Order must be affirmed. ARGUMENT I. The Circuit Court Correctly Held That There Was No Factual Or Legal Basis To Grant Appellant Any Relief. The seminal opinion in Florida on the test for determining the validity of absentee ballots is the Court's decision in Boardman v. Esteva, 323 So. 2d 259 (1976). In Boardman, this Court found that in making the initial determination as to the validity of the absentee ballots, the underlying concern is "whether they were cast by qualified, registered voters, who were entitled to vote absentee and who did so in a proper manner." Id. at 269. The Court held that "the primary consideration in an election is whether the will of the people has been effected. In determining the effect of irregularities on the validity of absentee ballots cast, the following factors shall be considered: (a) the presence or absence of fraud, gross negligence, or intentional wrongdoing; (b) whether there has been substantial noncompliance with the essential requirements of the absentee voting law; and (c) whether the irregularities complained of adversely affect the sanctity of the ballot and the integrity of the election." Id. Appellant was required to present "clear and convincing evidence" of irregularities sufficient to affect the validity of the ballots. Burke v. Beasley, 75 So. 2d 7, 8-9 (Fla. 1954). Because of the near-conclusive presumption of validity of election officials' performance, where there is no clear and convincing evidence that a certified election result does not reflect the will of the voters, it will not be set aside, even where there has been substantial noncompliance with the election laws. Beckstrom v. Volusia County, 707 So. 2d 720 (Fla. 1998); Boardman, 323 So. 2d 259; McLean v. Bellamy, 437 So. 2d 737 (Fla. 1st Dist. Ct. App. 1983). Applying the Boardman standard, which was recently reaffirmed by the Legislature, (see infra), the circuit court correctly found that Appellant did not satisfy his burden of proof. Although the circuit court concluded (incorrectly in our view) that there was an irregularity in the correction of request forms, which violated § 101.62, Fla. Stat., it also found that that irregularity, was directory only, could not invalidate the ballots, did not constitute substantial non-compliance with elections laws, and did not compromise the integrity of the ballots cast or the integrity of the election. The court also found that the evidence presented was insufficient to prove fraud, gross negligence, or intentional wrongdoing in connection with any absentee ballots. The evidence in the record fully supports the circuit court findings, and therefore they should be affirmed. D. There Was Substantial Compliance with Election Laws. Appellant's only evidence rested not on any alleged irregularity with regard to absentee ballots, (Stip. ¶ 21, 34), but rather solely on alleged irregularities with regard to requests for absentee ballots. (Tr. 377; Stip. ¶ 21) Specifically, the basis of Appellant's contest was that correcting identification numbers on pre-printed postcard applications for absentee ballots violated Section 101.62 of the Florida election laws. Appellant relies on subsection (b) of § 101.62, Fla. Stat., which lists items to be disclosed when a voter requests an absentee ballot, including a voter registration number. The "irregularity" complained of was that, when the Republican Party realized that it had inadvertently misprinted the requesting voter's registration number, the Party corrected that mistake by hand-inserting the correct numbers that should have been included in the first place. (Cplt. ¶¶ 1, 25; Stip. ¶ 6, 10-12). There is no evidence that the registration numbers added to the forms were incorrect or improper in any way. Appellant asserts that such conduct violated the statute because subsection (b) requires that the request for an absentee ballot be made by the voter or by a member of his immediate family. See id. Appellant's arguments about Section 101.62 hinge on one theory that by the clerical act of correcting numbers on pre-printed request forms, the Republican Party, not the voter, was making the request for an absentee ballot. However, it is undisputed that these forms were signed by the voters themselves, that they were received in the Office of the Supervisor as requests of the voters themselves, and that, after correction, they were processed as the requests of the voters themselves. The fact that the registration number was omitted certainly does not mean that the voter did not intend to request a ballot. Further, the typographical correction of a number on the request by the voter cannot logically be interpreted as a new request. The Division of Elections has expressly held that a political party does not make a "request" under the statute by furnishing a pre-printed request form that supplies the number for the voter. See Advisory Opinion DE 98- 14 (Sept. 16, 1998). Both the Republican and Democratic Parties pre-print voter registration numbers on postcards used to request absentee ballots, (Stip. ¶¶ 2, 27-29), and Appellant makes no argument that this practice is impermissible. It therefore cannot seriously be argued that a postcard where the information is pre- printed by a third party is acceptable, but a postcard where the information is corrected by hand by a third party is not. This Court held in Boardman that technical omissions or irregularities appearing on an application form under § 101.62 will not void the ballot "where the information that does appear on the application is sufficient to determine the qualifications of the applicant to vote absentee, and the omissions or irregularities are not essential to the sanctity of the ballot." 323 So. 2d at 265. In Boardman, the Court expressly receded from an earlier line of cases that had required strict interpretation of the absentee voting statute. Id. at 264. The Court expressly rejected the argument that an irregularity on the application invalidated the ballots, stating: There is no magic in the statutory requirements. If they are complied with to the extent that the duly responsible election officials can ascertain that the electors whose votes are being canvassed are qualified and registered to vote, and that they do so in a proper manner, then who can be heard to complain that the statute has not been literally and absolutely complied with? Id. The Court expressly established the bright line rule that is the law today: Unless the absentee voting laws which have been violated in the casting of the vote expressly declared that the particular act is essential to the validity of the ballot, or that its omission will cause the ballot not to be counted, the statute should be treated as directory, not mandatory, [p]rovided such irregularity is not calculated to affect the integrity of the ballot or election. Id. at 265. Although the absentee voting provisions were amended recently, the Legislature specifically adopted the Boardman standard when it did so. The postcard application forms at issue conclusively establish the qualifications of the applicant. They contain the name, address, signature, and last four digits of the social security number of the applicant. (Tr. 59). This information is sufficient for election officials to determine that the voter is qualified to vote. See § 97.041, Fla. Stat. Moreover, Florida law provides for either the county canvassing board or the elections supervisor to compare the signature of the voter on the voter certificate form on the return envelope with the signature on the registration books to ensure that the voter is duly registered and that the ballot is legal. § 101.68(1) & (2)(c), Fla. Stat. This procedure in no way relies on or even references the absentee ballot request form. There was no dispute in the court below that the voters who voted were duly registered and qualified voters. Case law, as well as an express directive from the legislature, confirms that the requirements in § 101.62, including the requirement to include a voter registration number, are "directory," not "mandatory." The failure to follow a directory procedure is not cause to reject a vote. McLean v. Bellamy, 437 So. 2d 737, 744-745 (Fla. 1st Dist. Ct. App. 1983); see also Jolley v. Whatley, 60 So. 2d 762 (Fla. 1952). In McLean, absentee ballots were issued without requests being made at all. McLean, 437 So. 2d at 742-43. As the court stated, however, the failure to follow the letter of the provisions of § 101.62 does not result in the "invalidation of absentee ballots cast by qualified electors who are also qualified to vote absentee." Id. at 743-44. In 1998, the Legislature, after reviewing changes in the law relating to absentee ballots and applications for absentee ballots, stated, "Although the statutes emphasize the importance of all the instructions, only the voter's signature and the signature and address of the attesting witness [on the absentee ballots themselves] are mandatory; all other provisions are directory in nature." Comm. on Election Reform, H.R. 99-339, Final Analysis on H.B. 281 at III.A (Fla. July 15, 1999) at 8 (citing Boardman, 323 So. 2d at 265). The Legislature expressly quoted and relied upon the bright line rule established in Boardman as the proper interpretation of the current statute. The statute expressly identifies the circumstances under which an absentee ballot will be considered illegal, and failure to follow the procedures for requesting an absentee ballot is not among them. Section 101.68(2)(c)(1) provides that an absentee ballot shall be considered illegal if it does not include the signature and the last four digits of the social security number of the elector, and either (a) the subscription of a notary or (b) the signature, printed name, address, voter identification number, and county of registration of one attesting witness. § 101.68(2)(c)(1), Fla. Stat. In this case, there was no evidence at trial that any voted ballot lacked these requirements. Rather, all of the evidence at trial related to request forms for absentee ballots. Thus, there is absolutely no basis under the statute to declare any absentee ballot illegal. This principle has been longstanding law in Florida, and continues today. In Jolley, 60 So. 2d 762, there were a number of irregularities in requests for absentee ballots. Nevertheless, this Court refused to invalidate the ballots cast, stating, "[I]t may well be doubted, whether an irregularity in the filling out of the application would invalidate the ballot, unless it appeared that the voter was not entitled to receive the ballot." Id. at 766. And this Court recently held in the context of irregularities in ballots themselves: As a general rule, a court should not void an election for ballot form defects unless such defects cause the ballot to be in substantial noncompliance with the statutory election requirements. When considering a petition alleging a violation in the form of the ballot, "a vital consideration guiding the courts in determining whether an election should be voided is the reluctance to reach a decision which would result in the disfranchisement of the voters. Indeed, as regards defects in ballots, the courts have generally declined to void an election unless such defects clearly operate to prevent that free, fair and open choice." Fladell v. Palm Beach County Canvassing Bd., Nos. SC00-2373 & SC00- 2376 (Dec. 1, 2000) (internal citations omitted). If these types of defects in the ballots themselves do not invalidate the vote, then a minor technical omission or mistake on an absentee ballot request form does not do so. In this case, as in Boardman, Jolley, and McLean, there is no evidence whatsoever "that the absentee ballots in question were illegally cast or that they were cast by voters who were unqualified to vote absentee." Boardman, 323 So. 2d at 268. Further, every item of information included on the request form submitted to the Supervisor of Elections was correct. Relying on the important principle that the will of the voters is paramount, Florida courts (and other courts in similar cases) have consistently refused to invalidate absentee ballots when the voters were qualified electors. The circuit court properly refused to do so as well. E. There Has Been No Adverse Effect On The Sanctity Of The Ballot Or The Integrity Of The Election. In the absence of a statutory provision expressly declaring a particular act or omission to be grounds for invalidating an absentee ballot, the ballot may only be invalidated if the error represents substantial noncompliance with election laws and adversely affects the sanctity of the ballot or the integrity of the election. Boardman, 323 So. 2d at 265; Wilson v. Revels, 61 So. 2d 491, 492 (Fla. 1952); Gilligan v. Special Road & Bridge Dist. No. 4, 77 So. 84, 85 (Fla. 1917). The evidence presented at trial showed that neither the sanctity of the ballots cast nor the integrity of the election was compromised by any irregularities alleged at trial. In addition, there was no evidence in the record that the alleged irregularities affected the integrity of the election or "place[d] in doubt the result of the election." See § 102.168(3)(a), Fla. Stat.; Boardman, 323 So. 2d at 269; Appellant does not even attempt to prove this element of the case, and the circuit court properly found proof of this essential element missing. Appellant presented no evidence to show, that if the voter registration numbers not been corrected on the request forms, the voters requesting those absentee ballots would not have voted or would have voted differently. Indeed, the evidence indicated the contrary. Professor DeLong conceded that he had not considered the fact that, if these requests had not been corrected, and the applicants had not received an absentee ballot, many of them would have voted anyway (either absentee or at the polls). (Tr. 214, 237). In fact, the only evidence indicated that most of them would have voted. Of the Republican cards, 472 remained unprocessed as of election day. (Def. Ex. 12). Of those applicants, at least 367 received an absentee ballot from another request or voted at the polls. (Def. Ex 12). Therefore, even if the absentee ballot requests corrected by the Republican Party had never been processed, it is likely that the vast majority of voters would have voted anyway. F. There Was No "Fraud, Gross Negligence Or Intentional Wrongdoing." 1. There Was No Evidence of Actual Fraud. Contrary to Appellant's many allegations of fraudulent conduct, there was not a whit of evidence presented in this case of "fraud, gross negligence, and intentional wrongdoing in connection with any absentee ballots." (Final Order at 9). There are no allegations of any wrongdoing with respect to the ballots, only as to the request forms. Where, as here, there is not even an allegation that fraud contaminated actual votes, the election results should stand. See Bolden, 452 So. 2d at 566 ("courts must not interfere with an election process when the will of the people is unaffected by the wrongful conduct."). It is the will of the voters that is paramount, and in the absence of any evidence--or even any allegation--that fraud thwarted the voters' will, the election results should not be overturned. See Bolton. The circuit court's findings of fact regarding Appellant's allegations are entitled to deference and should be affirmed because they are fully supported by the evidence. 2. An alleged "possibility" of fraud is not sufficient. Because there was no evidence of actual fraud in this case, Appellant essentially allege that some sort of fraud might have occurred while the Republican representatives had access to the request forms. (Cplt. 28-30; Tr. 309-315). However, as this Court has squarely held, where noncompliance with election laws creates the mere opportunity for fraud, but no actual fraud, the results of an election will nevertheless stand. Beckstrom v. Volusia County Canvassing Bd., 707 So. 2d 720 (Fla. 1998). In Beckstrom, the opportunity for fraud relating to the absentee ballots themselves was far more egregious than the speculative opportunity for fraud alleged here relating only to requests, and still this Court denied the election challenge. Id. at 722. In Beckstrom, this Court found that county officials had been substantially noncompliant with Florida election procedures, and that their actions, particularly the re-marking of ballots, created a striking opportunity for fraud. Id. at 726. Nonetheless, this Court sustained the election result, because in spite of the opportunity for fraud, no fraud had been shown to occur. Id. This Court stressed that it would be unfair to allow the acts of county officials to affect an election that was otherwise the "full and fair expression of the will of the people." As in Beckstrom, even if Appellant were correct that the Republican Party's access to the forms created an opportunity for fraud, there was no evidence in this case of actual fraud. Under Beckstrom, votes cannot be disqualified in this case on the basis of Appellant's speculation or even a bare inference of fraud. The draconian relief requested by Appellant invalidation of thousands of votes cast by qualified and properly registered voters is only appropriate in the face of dramatic and pervasive fraud. Here, where there is not even an allegation of fraud in the actual casting and counting of ballots, this remedy should not be granted. 3. The alleged conduct does not constitute a violation of Section 104.047, the Public Records Act, or any other statutory provision. Because Appellant could not establish fraud, he alleged during trial a litany of statutory violations, attempting to turn an innocent correction of a printing glitch into the commission of a crime somehow to justify the disenfranchisement of thousands of votes. First, Appellant's allegations relate in part to the conduct of the Supervisor, and as the circuit court held, "no remedy against her is available in this election contest under Section 102.168." Final Order at 10. In any event, there has been no violation of the statutes cited by Appellant, and even if there were, it would not be a criminal violation and would not have any effect on the sanctity of the absentee ballots. Appellant argues that by adding the voter identification numbers to the request forms, the absentee ballots were issued in contravention of Section 104.047(2), which makes it a crime to request a ballot on behalf of another voter. § 104.047(2), Fla. Stat. However, the Republican Party's correction of preprinted registration numbers on a form used by a voter to request an absentee ballot is not a request by someone other than the voter. See supra Part IA. Nor is adding the missing digits to the postcard request forms a "criminal violation of the Florida Public Records Act." The only criminal violation contemplated within Chapter 119 is for the refusal of a public official to make public records available upon request. Final Order at 9. In any event, Appellant has not identified any provision of the Public Records Act that has been violated by the correction of the voter registration numbers, and, even if there is a violation of the Public Records Act, such violation would not require invalidation of the votes cast by qualified voters. For similar reasons, Appellant's inflammatory allegation that Republican representatives falsified records, as proscribed by § 839.13 of the Florida Statutes, is not supported by the facts established at trial. First, no documents were falsified. There was no issue at trial that the voter identification numbers written on the corrected ballot request forms were not the true and correct identification numbers belonging to the qualified voter making the request. Further, Section 839.13 requires a showing of an affirmative intent to deceive, mislead, or corrupt. Appellant has not alleged, much less proven, any intent by the Supervisor or the representatives of the Republican Party to deceive, mislead or corrupt, or that any information provided on any absentee ballot request form was fraudulent or incorrect. Looking to the types of wrongs proscribed by § 839.13 and to the benevolent intent of the Supervisor and others to honor the requests of qualified registered voters, a reading of that provision to criminalize their unknowing acts would be a perverse reading of the statute. The voter registration number used on a request form is simply one of several ways of identifying persons eligible to receive the absentee ballot. There are many other sufficient ways to identify eligible persons, however, and there is no allegation or evidence that those methods were not complied with, or that anyone other than a properly qualified person received absentee ballot materials and then properly voted to express his will. See Final Order at 8, 10. In this case, it could not be clearer that an alleged irregularity in this pre-election process was, at most, merely procedural and had no effect on the ballots cast. G. The Supervisor Of Elections Did Not Treat The Republican And Democratic Parties Differently. The circuit court correctly concluded that based on the facts in evidence, "[t]here was no showing of any violation of 104.0515, Florida Statutes, equal protection under the law under Article I, Section 2 of the Florida Constitution, or any other applicable law." Final Order at 8. Appellant's claim of disparate treatment appears to be based on the fact that the Supervisor of Elections did not initiate contact with the Democratic Party or individual Democratic voters to inform them that they could correct missing voter registration numbers. Id. Even assuming that disparate treatment were a claim that could be made, Appellant would have had to have proved that parties similarly situated were treated differently. McElrath v. Burley, 707 So. 2d 836, 839 (Fla. 1st Dist. C. App. 1998). The evidence showed, however, that the Supervisor of Elections did not initiate contact with the Republican Party. (Tr. 150, Stip. ¶ 6) Rather, a representative of the Republican Party contacted the Supervisor requesting to correct the Republican pre-printed postcards which omitted a place for the voter registration number or contained an incorrect number. (Stip. ¶ 6, 10- 12.) Unlike the Republican postcards, that were sent directly by the voter to the County Supervisor of Elections, Democratic postcards were sent by the voters to the Democratic Party, which then forwarded them to the Supervisor. (Stip. ¶ 40.) Thus, Democrats had more than equal opportunity to correct errors or omissions that might have existed on their pre-printed forms. Neither the Democratic Party nor anyone else asked to make corrections to absentee ballot request forms, nor was anyone refused. Tr. 140, 153. As the Final Order recognizes, the undisputed evidence established that: Unlike the Republican mail-out, the Democratic mail-out did not suffer from the general omission of the voter identification numbers. Therefore, there was no need for the Democrats to request access to the request forms to correct them, and in fact, there was no evidence that such a request was made by the Democratic Party or any other political division. Consequently, there was no evidence that the request of any representative, including any Democrat, was denied by the Supervisor. Final Order at 8; (see Tr. 142, 162). Even if Appellant had proved differential treatment by the Supervisor, there is no legal basis to invalidate the absentee ballots cast by the voters. In McLean, 437 So. 2d 737, a losing candidate argued that he was adversely affected when unsolicited absentee ballots were sent to persons who had voted absentee in the primary election because absentee voters in the primary had preferred his opponent by a margin of 153 to 40, and therefore the clerk's procedure made voting easier for his opponent's supporters than for his supporters. Id. at 743. The court refused to void the absentee ballots. Id. at 743-44. As to the losing candidate's concern about his opponent having benefited from the error, the court said: We have found no authority which suggests that in such a situation, the proper resolution would be to throw out the absentee ballots cast by qualified electors because of the highly speculative effect of certain electors not having received absentee ballots. . . . There is no indication that any of them contacted the election office or otherwise complained of not having received a runoff absentee ballot. The inference which McLean suggests that the City's failure to mail absentee ballots to the 89 primary non-voters somehow skewed the runoff absentee balloting in Chapman's favor is highly speculative and conjectural. Id. at 744. Similarly, Appellant's assertion that not informing other voters that they could correct errors or omissions on their requests especially when they never asked somehow skewed the absentee voting is highly speculative and completely conjectural. H. Appellant Is Barred From Bringing A Post Election Challenge To Pre-Election Irregularities On Grounds Of Estoppel, Waiver and Laches. The evidence at trial establishes that Appellant is barred by estoppel, waiver, and laches from attempting to invalidate these votes. A party is estopped from bringing a post-election challenge to irregularities that were discoverable before the election. As this Court has long held, an "aggrieved party cannot await the outcome of the election and then assail preceding deficiencies which he might have complained of to the proper authorities before the election." Pearson v. Taylor, 32 So. 2d 826, 827 (1947). The time for Appellant to challenge absentee ballot request forms was before the election, when any error could have been cured without depriving Seminole County voters of their votes. Because Appellant delayed until after the election, principles of equity bar his suit. The equities are particularly strong against Appellant here, because he had notice of the alleged pre-election irregularity several weeks before the election. (Tr. 139; Altiero Depo. 4-11, 31-32). It was well known in Democratic circles before the election that, because of an error on pre-printed request forms mailed to voters by the Republican Party, representatives of the Republican Party had sought and received permission to correct incomplete or missing voter registration numbers. A party who was on notice of irregularity before an election is clearly estopped from challenging it afterwards. In McDonald v. Miller, 90 So. 2d 124 (Fla. 1954), the losing candidate had been aware before the election of certain irregularities in the requests for absentee ballots, but did not object until after the election, complained that the ballots were illegal and that because they had been intermingled with validly cast absentee ballots, all absentee ballots must be rejected. Id. at 128. This Court refused to allow the candidate's challenge, holding that after standing by and allowing the errors to occur and the ballots to become intermingled, the candidate was estopped from seeking to invalidate the absentee ballots. Similarly, Appellant is estopped from challenging the absentee ballots. He remained silent when the Supervisor issued ballots in response to what the Appellant now alleges to be invalid request forms, and he remained silent when the absentee voters, who relied on their receipt of ballots as evidence that their requests had been valid, cast their votes. Had he complained at the time, voters could have made other arrangements, by either requesting another ballot or voting at the polls. Appellant cannot now be heard to complain that those votes are void. It is precisely because of the potential prejudice to voters, who are "the real parties in interest" in any election contest, Boardman, 323 So. 2d at 263, that Florida law generally requires errors discoverable before the election to be challenged before the election--whether or not Appellant was on actual notice. "A different rule applies to technical or procedural irregularities which occur and are challenged prior to a general election than to those which are discovered and challenged after the general election, in the absence of corruption or fraud." A party who is not vigorous about protecting his rights at a time when it would do the least harm to voters forfeits his ability to bring a challenge at a time when it would do voters the most harm. II. Federal Law Prohibits This Court From Disenfranchising Qualified Voters Who Properly Cast Their Vote Based On Procedural Issues That Have No Bearing On A Voter's Qualifications. Not only does state law mandate that the certified count of this election stand, but federal law mandates the same result indeed, it prevents any other result. For a state court to disenfranchise absentee voters would violate federal law and amount to a denial of due process under the United States Constitution. A. 42 U.S.C. § 1971 Prevents The Court From Denying Any Individual Vote Because Of Any Error Relating To An Absentee Ballot Application When The Defect Is Not Material To Determining Whether The Voter Is Qualified. The voters whose votes are in question here were qualified to vote under Florida law and did, in fact, cast and have counted valid votes. Neither federal statutory law nor the federal constitution will permit a state court to override that vote, in a Presidential election, based on procedural technicalities such as those alleged here. 42 U.S.C. § 1971 provides that: No person acting under color of law shall . . . deny the right of any individual to vote in any election because of an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual is qualified under State law to vote in such election. 42 U.S.C. § 1971(a)(2)(B) (emphasis added). All that is required for a voter to be qualified to vote is that he be 18 years old, a citizen of the United States, a legal resident of Florida and the county in which he or she is registered pursuant to the Election Code, and not mentally incapacitated or convicted of a felony. § 97.041(1)(a) & (1)(b)(2), Fla. Stat. The alleged "irregularity" in this case can have no material relationship to determining the qualifications of a voter. Indeed, the court found that "[t]here was no allegation or evidence that any of the absentee votes counted were not 'cast by qualified, registered voters.'" Final Order at 8. Appellant may argue that the voter registration number is "material" to determining whether a voter is qualified, because a person who is not registered may not vote. However, the presence of the registration number on the request form is not determinative of whether the voter is registered or not. That number represents only one of several ways for officials to access formal registration records to confirm that a person can be sent a ballot. Article II, Section 1 has long been interpreted "to grant Congress power over Presidential elections coextensive with that which Article I section 4 grants it over congressional elections." Association of Community Orgs. for Reform Now (ACORN) v. Edgar, 56 F.3d 791, 793 (7th Cir. 1995). Thus, Congress has the power to regulate Presidential elections. This power extends to the regulation of the process of registering voters. ACORN, 56 F.3d at 793-94 (citing Smiley v. Holm, 285 U.S. 355, 366 (1932) and other cases). Moreover, Section 1971 acts to protect fundamental constitutional rights of voters. The right to vote, and the right to have one's vote counted are protected by the United States Constitution. Ex parte Yarborough, 110 U.S. 651 (1884) (right to vote). Congress has specifically protected these rights of absentee voters through other statutes, as well. Under 42 U.S.C. § 1973aa-1, Congress requires the states to "provide by law for the casting of absentee ballots for the choice of electors for President and Vice President, or for President and Vice President, by all duly qualified residents of such State . . . ." In § 1973aa-1(a), Congress found that the lack of sufficient opportunities for absentee registration and absentee balloting in presidential elections "denies or abridges the inherent constitutional right of citizens to vote for their President and Vice President," as well as rights of free movement across state lines, the privileges and immunities guaranteed to citizens under Article IV, section 2, clause 1 of the Constitution, and "due process and equal protection of the laws that are guaranteed to them under the fourteenth amendment." 42 U.S.C. § 1973aa-1(a) (1994). These same constitutional rights that were sought to be protected by § 1973aa-1 were targeted by § 1971 as well, and the power of Congress to protect the constitutional rights of the citizens or particular states under the Fourteenth Amendment is well established. See, e.g. United States v. Raines, 362 U.S. 17, 25 (1960) (upholding § 1971 and stating that "[it] is . . . established as a fundamental proposition that every state official, high and low, is bound by the Fourteenth and Fifteenth Amendments"). Section 1 of the Fourteenth Amendment provides that "[n]o Statute shall make or enforce any law which shall abridge the privileges or immunities or citizens of the United States," and under Section 5 of the Fourteenth Amendment, Congress has the "power to enforce, by appropriate legislation, the provisions of" the Fourteenth Amendment. This broad provision empowers Congress, through § 1971, to assure that voters will not be disqualified through the omission of immaterial information from their applications. Even if the power to seek affirmative relief under the statute is reserved for the attorney general, the court could not fashion a remedy in this case which would directly violate a federal statute. Applying § 1971 to prohibit the remedy Appellant sought would be entirely consistent with the numerous Congressional efforts to encourage absentee voting. See, e.g., Voting Integrity Project, Inc. v. Bomer, 199 F.3d 773, 776-77 (5th Cir. 2000) (citing numerous federal statutes as evidence that "Congress looks with favor on absentee voting"), cert. denied, 120 S. Ct. 2660 (2000). B. The United States Constitution And Other Federal Laws Prohibit The Invalidation Of These Absentee Ballots. Federal constitutional protections of the right to vote are well- recognized. The right to vote, and the right to have one's vote counted, are protected by the United States Constitution. See, e.g., Griffin, 570 F.2d at 1074. In the context of an election of this magnitude--to elect the electors who will vote for the President and Vice President of the United States--this right is considered to be so important that Congress has enacted specific statutes governing the opportunities for absentee voting in that particular election. See 42 U.S.C. § 1973aa-1 et seq. Confirming the constitutional importance of the right to vote in this election, Congress has provided that the lack of sufficient opportunities for absentee registration "denies or abridges the inherent constitutional right of citizens to vote for their President and Vice President." Id. § 1973aa-1(a)(1). In Griffin v. Burns, the First Circuit held that the invalidation of absentee ballots was effectively a disenfranchisement of those absentee voters. There, the state court invalidated all absentee ballots cast in a primary election because it decided that, under state law, absentee voting was not allowed in a primary election. 570 F.2d at 1067-68. The disenfranchised absentee voters challenged the state court's action in federal court, and the First Circuit held that those voters' due process rights had been violated. Id. at 1079-79. Government officials had sent voters absentee ballots, and thus the voters had every expectation that their ballots were valid and would be counted. Id. at 1075-1076. Nullifying those votes after the fact, when voters had detrimentally relied on the implicit representation that they would be able to vote absentee, was unfair and had the effect of denying their right to vote. Similarly, those voters who received absentee ballots from the Supervisor were entitled to presume that their applications had been valid; when they cast their ballots in the election, they had every expectation that those votes would count. (Stip. ¶ 32.) They never had notice or opportunity to otherwise cast their vote by correcting the mistake on the application or going to the polls. To invalidate those votes now would deny those voters their due process rights. The time for Appellant to seek redress for any perceived errors in the pre-election process was before the election, when a ruling in his favor would not have foreclosed absentee voters' right to vote. Cf. Griffin, 570 F.2d at 1069 (noting that electors would have arranged to vote at the polls had they known that their absentee ballots would not count). This Court cannot grant the relief Appellant requests now, after the fact, without violating the federal due process rights of nearly 15,000 absentee voters. CONCLUSION For the foregoing reasons, Appellee respectfully requests that the Court decline to exercise jurisdiction over this appeal. In the alternative, Appellee requests that the Final Order of the circuit court be affirmed. Respectfully submitted, ______________________________ BARRY RICHARD Florida Bar No. 0105599 GREENBERG TRAURIG, P.A. Post Office Drawer 1838 Tallahassee, Florida 32301 Telephone: (850) 222-6891 Facsimile: (850) 681-0207 BENJAMIN L. GINSBERG PATTON BOGGS LLP Washington, D.C. DARYL BRISTOW AMY DOUTHITT MADDUX BAKER BOTTS, LLP Houston, Texas STUART LEVEY MILLER, CASSIDY, LARROCA & LEWIN LLP Washington, DC COUNSEL FOR APPELLEES GEORGE W. BUSH and DICK CHENEY KENNETH W. WRIGHT Florida Bar No. 0188799 SHUTTS & BOWEN LLP Orlando, Florida COUNSEL FOR APPELLEE REPUBLICAN PARTY OF FLORIDA CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing have been furnished to the following on this _____ day of December, 2000. GERALD F. RICHMAN ALAN G. GREER JOHN R. WHITTLES SCOTT E. PERWIN PAMELA I. PERRY Richman, Greer, Weil, Brumbaugh, Mirabito & Christensen, P.A. One Clearlake Centre 250 Australian Avenue South, Suite 1504 West Palm Beach, Florida 33401 Fax: (850) 205-6806 KENT SPRIGGS Spriggs & Davis, P.A. 324 W. College Avenue Tallahassee, Florida 32301 Fax: 224-8836 STUART LEVY STEPHEN BRAGA Miller Cassidy Larroca & Lewin 2555 M Street NW Washington, D.C. 20003-1302 Fax: (202) 293- 1827 SEGUNDO FERNANDEZ TIMOTHY ATKINSON C. ANTHONY CLEVELAND Oertel, Hoffman, Fernandez & Cole, P.A. 301 South Bronough Street, Suite 500 Tallahassee, Florida 32301 Fax: 521-0720 TERRY C. YOUNG Lowndes, Drosdick, Doster, Kantor & Reed, P.A. 215 South Eola Drive Orlando, Florida 32801 Fax: (407) 423-4495 JANET COURTNEY 215 N. Eola Drive P.O. Box 2809 Orlando, Florida 32802-2809 Phone: (407) 843-4600 MATTHEW D. STAVER Liberty Counsel 210 East Palmetto Avenue Longwood, Florida 32750 Fax: (407) 875-0770 ERIK W. STANLEY 210 E. Palmetto Avenue Longwood, Florida 32750-4241 Fax: (407) 875- 8008 DEAN F. DIBARTOLEMEO 8400 Bird Road Miami, Florida 33155-3226 Fax: (305) 226-6147 KATHERINE CHRISTY 250 International Parkway #230 Heathrow, Florida 32746-5030 Phone: (407) 333-1610JOHN STEMBERGER 4853 S. Orange Avenue Suite C Orlando, Florida 32806-6937 Fax: (407) 251-0023 KENNETH WRIGHT Shutts & Bowen 300 South Orange Avenue, Suite 1000 Orlando, Florida 32801 Fax: (407) 425-8316 JONATHAN SJOSTROM Steel, Hector & Davis 215 S. Monroe Street, Suite 601 Tallahassee, Florida 32301 Fax: 222-2300 JOSEPH P. KLOCK, JR. Steel Hector & Davis 200 S. Biscayne Blvd., Suite 4000 Miami, Florida 33131-2310 Fax: 222-8410 DEBORAH K. KEARNEY 400 S. Monroe Street, PL 02 Tallahassee, Florida 32399 Fax: 922-5763 MICHAEL D. CIRULLO 3099 E. Commercial Blvd. # 200 Ft. Lauderdale, FL 33308-4311 Fax: (954) 771-4923 MICHAEL S. MULLIN 191 Nassua Place Yulee, Florida 32097-6303 Phone: (904) 491-3600 _________________________ ___ Seann M. Frazier CERTIFICATE OF COMPLIANCE WITH FONT REQUIREMENT I hereby certify that the font in this brief is Times New Roman 14 point and is in compliance with Florida Rules of Appellate Procedure. _________________________ ___ Seann M. Frazier 140661
|
|
|
NOW - CASE
LAW - All 50 States - Federal Courts - Try
it for FREE
We
now have full text legal news
drawn from all the major sources!!
Pennsylvania Lawyer Help Board
TERMS
OF USE - DISCLAIMER - LINKING POLICIES
Created and Developed by
Rominger Legal
Copyright 1997 - 2009.
A Division of
ROMINGER, INC.
