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SUPREME COURT OF FLORIDA
CYNTHIA McCAULEY,
Appellant/Plaintiff,
Case No.: SC00-2462
vs.
DCA Case No.: 1D00-4825
Lower Case No.: 00-2802
MARC NOLEN, RICHARD STEWART,
THE HONORABLE THOMAS WELCH, in their
official capacities as members
of the BAY COUNTY CANVASSING
BOARD; Secretary of State KATHERINE
HARRIS, Secretary of Agriculture BOB
CRAWFORD, and the Director of the Division
of Election L. CLAYTON ROBERTS in their official
capacities and as the FLORIDA ELECTIONS
CANVASSING COMMISSION; AL GORE;
JOSEPH LIBERMAN; GEORGE W. BUSH;
and DICK CHENEY,
Appellees/Defendants.

APPELLEE'S/DEFENDANT'S,
BAY COUNTY CANVASSING BOARD,
ANSWER BRIEF

Timothy M. Warner
Fla. Bar No. 0642363
Michael S. Burke
Fla. Bar No. 0133851
BURKE & BLUE, P.A.
221 McKenzie Avenue
Panama City, Florida 32401
Tel. (850) 769-1414
Fax. (850) 784-0857
ATTORNEYS FOR APPELLEE,
BAY COUNTY CANVASSING BOARD

TABLE OF CONTENTS
TABLE OF CITATIONS................................................................................................
ii
STATEMENT OF THE CASE AND FACTS ..............................................................
1
SUMMARY OF ARGUMENT ......................................................................................
1
STANDARD OF REVIEW ............................................................................................
1
THE IRREGULARITIES COMPLAINED OF BY McCAULEY
DO NOT AFFECT THE SANCTITY OF THE BALLOT AND THE
INTEGRITY OF THE ELECTION .............................................................................
2
McCAULEY'S APPEALS IN MOOT ..........................................................................
6
CONCLUSION ...............................................................................................................
7

i
TABLE OF CITATIONS
Case Names:
Page Number
Abruzzo v. Haller,
603 So.2d 1338 (Fla. 1st DCA 1992)....................................................................... 2
Beckstrom v. Volusia County Canvassing Board,
707 so. 2d 720 (Fla. 1998)....................................................................................... 5
Boardman v. Esteva,
323 So.2d 259 (Fla. 1975)........................................................................................ 2,3
Bush v. Gore, No. 00-949;
2000 WL 1811418 (U.S. Dec. 12, 2000)................................................................. 1,6
Jacobs v. Seminole County Canvassing Board,
No. SC00-2447; 2000 WL 1810330 (Fla. Dec. 12, 2000)....................................... 5,6
McLean v. Bellamy,
437 So. 2d 737 (Fla. 1st DCA 1983)....................................................................... 2,3,5
Other authorities:
§ 101.62, Florida Statutes......................................................................................... 3
§ 101.64, Florida Statutes........................................................................................... 4
§ 101.647, Florida Statutes........................................................................................
4
§ 101.68, Florida Statutes..........................................................................................
5,6
Padovano, Florida Appellate Practice, Second Edition § 9.4 (1997).......................... 2

STATEMENT OF THE CASE AND FACTS
Appellees, Marc Nolen, Richard Stewart, The Honorable Thomas Welch, in their official capacities
as members of the Bay County Canvassing Board (hereinafter referred to as "Bay County") generally agree
with Appellant's, Cynthia McCauley's (hereinafter referred to as "McCauley") Statement of the Case and
Statement of the Facts, but notes the following exceptions. Bay County's Answer to the Amended
Complaint was filed via facsimile with the Trial Court on December 4, 2000, pursuant to the Trial Court's
Order Granting Plaintiff's Motion to Shorten Response Time. Bay County's Answer was filed after the
2:00 p.m. EST deadline established by the Trial Court due to a long distance telephone line malfunction in
the Panama City, Florida, local area.
On December 5, 2000, Bay County filed a Motion to Dismiss which joined in the Motion to
Dismiss Plaintiff's Complaint with a Supporting Memorandum of Law filed by counsel for Harris and the
Elections Canvassing Commission.
Bay County has adopted portions of the arguments raised by counsel for Katherine Harris and the
Elections Canvassing Commission.
SUMMARY OF ARGUMENT
The Trial Court properly dismissed McCauley's Amended Complaint for failure to state a cause
of action. McCauley failed to make any allegations that the sanctity of the ballots themselves were
disturbed. Assuming all of the allegations in the Amended Complaint are true, the violations complained
of will not invalidate the votes of innocent electors. Finally, due to the United States Supreme Court
decision in Bush v. Gore, No. 00-949; 2000 WL 1811418 (U.S. Dec. 12, 2000) McCauley's action is
moot.
1

STANDARD OF REVIEW
McCauley's Amended Complaint alleges that it is an action for declaratory and injunctive relief
contesting the election for President and Vice President of the United States. A motion to dismiss assumes
for purposes of the motion that all of the allegations in the complaint are true. A trial court's decision to
dismiss a complaint seeking declaratory relief is accorded great deference and is reviewed only for abuse
of discretion. Abruzzo v. Haller, 603 So.2d 1338 (Fla. 1st DCA 1992). Assuming that the Amended
Complaint is not based on an action for declaratory relief, then the standard of review is de novo. See
Padovano, Florida Appellate Practice, Second Edition § 9.4 (1997). Under either standard of review, the
Amended Complaint fails to state a cause of action for which relief may be granted.
THE IRREGULARITIES COMPLAINED OF BY McCAULEY
DO NOT AFFECT THE SANCTITY OF THE BALLOT AND
THE INTEGRITY OF THE ELECTION
In McLean v. Bellamy, 437 So. 2d 737 (Fla. 1st DCA 1983), the First District was asked by
an unsuccessful candidate to void 293 absentee ballots based upon the violation of various statutory
requirements governing absentee voting. In evaluating the case, the court first reviewed the legal principles
established in Boardman v. Esteva, 323 So.2d 259 (Fla. 1975). The First District noted this Court's
statement:
Unless the absentee voting laws which have been violated in the casting of the vote
expressly declare 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, provided such irregularity is not calculated to affect the integrity of the
ballot or election.
. . .
[W]e hold that the primary consideration in an election contest is whether the will of the
people has been effected. In determining the effect of irregularities on the validity of
2

absentee ballots case, the following factors shall be considered:
(a) The presence or absence of fraud, gross negligence, or intentional wrongdoing;
(b) whether there has been substantial compliance 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 ballot and the integrity of the election.
The underlying concern of the election officials in making the initial determination as to the
validity of the absentee ballots 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 742 (quoting Boardman 323 So.2d at 269.)
The First District applied these legal principles and determined that the following acts in violation
of the Florida absentee voting law did not constitute irregularities sufficient to void the absentee ballots that
were cast by qualified, registered voters:
(1)
the mailing of unrequested ballots to voters where the City Auditor-Clerk mailed such
ballots to individuals who voted absentee in a primary election but did not expressly
request an absentee ballot for a runoff election;
(2)
improperly witnessed ballots where one of two required witnesses signed the ballot at the
time the voter marked the ballot, but the second required witness signed the ballot without
witnessing the voter's action;
(3)
failure of the voter to check on the ballot application the "appropriate reason" for which
the voter was entitled to vote absentee; and
(4)
distribution of the absentee ballot forms to third persons without written authorization from
the elector.
In evaluating these technical statutory violations, the First District explained: "We are unable to
glean from the provisions of [section 101.62] a legislative intent that the failure to follow the letter of its
provisions should result in the invalidation of absentee ballots cast by qualified electors who are also
qualified to vote absentee." McLean 437 So. 2d at 743-44. The Court noted that the 1977 Legislature
3

"relaxed some of the former rigidities of Section 101.62 regarding requests for absentee ballots," and
explained that "we find no declaration in Section 101.62, implied or explicit, that strict compliance with its
provisions is essential to the validity of the ballot or that the failure to strictly follow any of its provisions will
cause the ballot not to be counted." Id.
In rejecting the unsuccessful candidate's request to invalidate the absentee ballots, the First District
repeatedly considered whether such rejection was necessary to ensure a full, fair and free expression of
the will of the people. The First District held that rejection was not appropriate despite the irregularities.
In concluding that it would be inappropriate to disenfranchise absentee voters for errors on the part of
elections officials, the First District explained:
It is obvious that the subject election was managed by the election officials in a manner
other than in strict conformance with the applicable voting laws. It may well be that such
irregularities were the result of negligence on the part of the election officials. However,
any such negligence avails the appellant nothing because such negligence did not descend
to the kind of gross negligence which the Supreme Court in Boardman equated with fraud
or intentional wrongdoing.
Id. at 750 (emphasis added).
Paragraph 12 of McCauley's Amended Complaint alleges that "Substantial irregularities occurred
in the processing of the absentee ballot requests and in the receipt of the ballots themselves. These specific
irregularities include:...." The Amended Complaint then makes three allegations of irregularities the
substance of which are: (i) the Supervisor of Elections, in violation of § 101.647 Fla. Stat., accepted
absentee ballots from people who delivered more than two absentee ballots to the Supervisor of Elections
and who did not return the absentee ballots with the appropriate written authorization; (ii) a Republican
Party mailing mislead voters into believing that the State of Florida permitted and encouraged absentee
voting as a matter of convenience and the mailing included a removable pre-addressed absentee ballot
4

request form; and (iii) contrary to the misleading letter sent by the Republican Party, § 101.64, Fla. Stat.,
requires absentee voters to swear of affirm that he or she is "unable to attend the polls on election day."
None of the allegations contained in Paragraph 12 of the Amended Complaint allege that individual
voters committed any acts, except the act of being misled or their absentee ballots mishandled by third
parties, which effect the sanctity of the ballots themselves. In sum, the allegations of Paragraph 12 of the
Amended Complaint allege possible criminal violations on the part of third parties. However, those
violations, even when taken as true, do not require the invalidation of approximately 12,000 absentee
ballots.
In footnote 3 of Jacobs v. Seminole County Canvassing Board, No. SC00-2447; 2000 WL
1810330 (Fla. Dec. 12, 2000), this Court states "We note that chapter 104 of the Florida Election Code
provides certain penalties for election official and others who violate the Code. However, violations of the
Code will not necessarily invalidate the votes of innocent electors." See also, Beckstrom v. Volusia County
Canvassing Board, 707 so. 2d 720 (Fla. 1998) (elections officials failure to substantially comply with the
Florida Election Code did not result in doubt as to whether the results of the election reflected the will of
the voters). Just as in McLean and Jacobs, the violations complained of are violations of directory, not
mandatory, statutes. The failure to strictly follow those statutes does not affect the sanctity of the ballot and
the integrity of the election1.
1 Paragraphs 9 and 10 of the Amended Complaint allege that in Bay County George W. Bush
received 38,637 votes of which 8,969 were absentee and that Al Gore received 18,850 votes of which
3,327 were absentee. Thus, the total polling place votes in Bay County for Bush are 29,668 and Gore
15,523. In both the polling place tabulation and the absentee tabulation, Bush defeated Gore by a
margin of approximately 2:1 in Bay County, Florida. The will of the voters in Bay County is that Bush
should be elected President.
5

Paragraph 13 of the Amended Complaint makes the conclusion of law that "Absentee votes cast
by individuals who were in fact able to attend the polls on election day are illegal." However, §
101.68(2)(c)1. Fla. Stat. (2000) declares an absentee ballot shall be considered illegal if it does not include
the signature and last four digits of the social security number of the elector as shown by the registration
records, and it is either notarized or signed by a witness. No where in the Amended Complaint does
McCauley allege that any of the absentee ballots counted by Bay County are illegal pursuant to §
101.68(2)(c)1. Fla. Stat. (2000).
In footnote 2 of Jacobs, this Court stated:
"While there may be questions regarding the application forms in this case,
there is no question that the ballots themselves conformed to the
requirements of section 101.68, Florida Statutes (2000) which requires
the signature and last four digits of the social security number of the
elector, and either subscription of a notary or identifying information from
an attesting witness." (Emphasis added.)
Similar to the allegations in Jacobs, in this case the ballots themselves have not been questioned.
McCAULEY'S APPEAL IS MOOT
On the evening of December 12, 2000, the United States Supreme Court issued its ruling
in Bush, et al. v. Gore, et al., Case No. 00-949; 2000 WL 1811418 (U.S. Dec. 12, 2000) and stated
as follows:
"The Supreme Court of Florida has said that the legislature intended the
State's electors to `participate fully in the federal electoral process,' as
provided in 3 U.S.C. § 5. So.2d, at (slip op. at 27); see also Palm
6

Beach Canvassing Bd. v. Harris, 2000 WL 1725434, *13 (Fla. 2000).
That statute, in turn, requires that any controversy or contest that is
designed to lead to a conclusive selection of electors be completed by
December 12. That date is upon us, and there is no recount procedure
in place under the State Supreme Court's order that comports with
minimal constitutional standards. Because it is evident that any recount
seeking to meet the December 12 date will be unconstitutional for the
reasons discussed, we reverse the judgment of the Supreme Court of
Florida ordering a recount to proceed." Bush v. Gore, 2000 WL
1811418, *7. [Emphasis added].
In Gill v. City of North Miami Beach, 156 So.2d 182 (Fla. 3rd DCA 1963), the Third Circuit held
that where an election sought to be enjoined had already been held, issues presented by appeal had
become moot and the appeal was dismissed.
The Bay County contends that the issues presented in this appeal are moot based upon the United
States Supreme Court's ruling. Specifically, the Bay County avers that the Appellant's contest was solely
designed to lead to an amended certification of Bay County's voting results. Since this contest was not
completed by the December 12, 2000 deadline, this appeal is moot.
CONCLUSION
McCauley's amended complaint failed to make any allegations that the irregularities complained
of affected the sanctity of the ballots themselves. Hyper-technical violations of the Election Code by
election official should not be permitted to disenfranchise voters. The Trial Court's Order granting dismissal
should be affirmed for the reasons stated herein. In the alternative, Appellees respectfully request that this
Honorable Court deem the issues raised in this appeal to be moot and dismiss this action.
BURKE & BLUE, P.A.
7

TIMOTHY M. WARNER
Florida Bar No. 0642363
MICHAEL S. BURKE
Florida Bar No. 0133851
P.O. Box 70
221 McKenzie Avenue
Panama City, FL 32401
(850) 769-1414
Attorney for Appellees,
MARC NOLEN, RICHARD
STEWART, THE HONORABLE
THOMAS WELCH, IN THEIR
OFFICIAL CAPACITIES AS
MEMBERS OF THE BAY COUNTY
CANVASSING BOARD
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing brief has been furnished by facsimile
transmission this 13th day of December, 2000, to the following:
Hon. Jon S. Wheeler
Hon. Dave Lang
Clerk, First DCA
Clerk Leon County
30l Martin Luther King, Jr. Blvd.
30l S. Monroe Street
Tallahassee, FL 32399-1850
Tallahassee, FL 32301
(copy mailed at Clerk's request)
Fax # (850) 922-4310
Hon. L. Ralph Smith, Jr.
Mitchell W. Berger
Leon County Courthouse, Room 365J
Berger Davis & Singerman
Tallahassee, FL 32301
350 E. Las Olas Blvd., Ste 1000
Fax # (850) 922-0327
Ft. Lauderdale, FL 33301-4215
Fax # (954) 525-9900
Sean M. Frazier
Barry Richard
Craig Meyer
Greenberg Traurig
Agriculture & Consumer Services
101 East College Avenue
The Capitol, Plaza Level 10
Tallahassee, FL 32301
Tallahassee, FL 32399-0800
for Governor Bush
Fax #(850) 488-7585
Fax #(850) 681-0207
Deborah Kearney, General Counsel
Alvin L. Peters
Florida Department of State
McCauley & Peters
400 South Monroe Street, PL 02
36 East Oak Avenue
8

Tallahassee, FL 32399
Panama City, FL 32401
for Secretary Katherine Harris &
Attorneys for Cynthia McCauley
the Elections Canvassing Committee
Fax #(850) 785-5124
Fax #(850) 922-5763
John W. Little, III
Donna E. Blanton
Ben R. Patterson
Steel Hector & Davis
315 Beard Street
215 South Monroe Street, Suite 601
P.O. Box 4289
Tallahassee, FL 32301-1804
Tallahassee, FL 32315
for Secretary Katherine Harris &
Fax #(850) 222-7438
the Elections Canvassing Committee
Fax #(850) 222-8410
Benjamin L. Ginsberg
Andrew J. McMahon
State Republican Headquarters
Palm Beach Co Attorney's Office
420 West Jefferson Street
301 N. Olive Avenue, Ste. 601
Tallahassee, FL 32301
West Palm Beach, FL 33401-4705
For the Republican Party
Fax # (561)355-4234
Fax #(850) 681-0184
L. Clayton Roberts
Division of Elections
400 S. Monroe Street
Tallahassee, FL 32399
Fax #(850) 487-2214
BURKE & BLUE, P.A.

TIMOTHY M. WARNER
Florida Bar No. 0642363
9

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