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IN THE SUPREME COURT OF FLORIDA
CYNTHIA MCCAULEY,
Appellant,
vs.
MARC NOLEN, et al.,
Appellees.
CASE NO. SC00-2462
DCA CASE NO. 1D00-4825
Circuit Case No. CV 00-2802
BRIEF OF APPELLEES GEORGE W. BUSH, DICK CHENEY

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
3

TABLE OF CONTENTS
T
A
B
L
E

O
F
CONTENTS............................................................................................i
T
A
B
L
E

O
F
CITATIONS.........................................................................................iii
STATEMENT REGARDING JURISDICTION.......................................................1
S
T
A
T
E
M
E
N
T

O
F

T
H
E
CASE..................................................................................1
S
U
M
M
A
R
Y

O
F

T
H
E
ARGUMENT........................................................................1
ARGUMENT......................................................................................................
.......2
I.
The Circuit Court Correctly Held That There Was No Legal Basis To Grant
A
p
p
e
l
l
a
n
t

A
n
y
Relief.......................................................................................2
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..............................................................19
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..........................................................20
B.
The United States Constitution And Other Federal Laws Prohibit The
i

Invalidation of These Absentee Ballots..............................................23
CONCLUSION...................................................................................................
.....25
C
E
R
T
I
F
I
C
A
T
E

O
F
SERVICE................................................................................26
CERTIFICATE OF COMPLIANCE WITH FONT REQUIREMENT..................27
ii

TABLE OF CITATIONS
CASES
Assn. of Community Orgs. for Reform Now (ACORN v. Edgar), 56 F.3d 791
(
2
d

C
i
r
.
1995)...........................................................................................................21
Assn. of Community Organizations for Reform Now v. Miller, 129 F.3d 836, n.1
(
6
t
h

C
i
r
.

1
9
9
7
)
..........................................................................................................21
Attorney General ex rel Miller v. Miller, 253 NW 241 (Mich. 1934)......................6
Beckstrom v. Volusia County, 707 So. 2d 720 (Fla. 1998)............................3, 12, 13
Boardman v. Esteva, 323 So. 2d 259 (Fla. 1976).................2, 3, 4, 5, 6, 7, 10, 11, 19
Bolden v. Potter, 452 So. 2d 564 (Fla. 1984).....................................................11,
13
Burke v. Beasley, 75 So.2d (Fla. 1954)...................................................................14
Burroughs v. United States, 290 U.S. 534 (1934)...................................................21
B u s h v . G o r e , 5 3 1 U . S . _ _ _ _ _
(2000)........................................................................1
C a r n v . M o o r e , 7 6 S o . 3 3 7 ( F l a .
1917)....................................................................13
C o n d o n v . R e n o , 9 1 3 F . S u p p . 9 4 6 ( D . S . C .
1995)....................................................21
Ex parte Yarborough, 110 U.S. 651 (1884.............................................................21
Fladell v. Palm Beach County Canvassing Board Nos., SC00-2373 &
SC00-2376, Slip Op. (Fla. Dec. 1, 2000)..................................................................6
iii

Florida Democratic Party v. Jeb Bush, Case No. 00-2554
(
F
l
a
.

2
n
d

C
i
r
.

C
t
.
2000).............................................................................................15
Gilligan v. Special Road & Bridge Dist. No. 4, 77 So. 84 (Fla. 1917)...................10
Ginsberg v. Lennar Florida Holdings, Inc., 645 So.2d 490
(
F
l
.

3
r
d

D
C
A
1994)...................................................................................................16
G o r e v . H a r r i s , N o . S C 0 0 -
2431..............................................................................11
G r a y v . H u n t e l y , 2 3 8 P . 5 3 ( C o l o .
1925).................................................................14
Greenwood v. City of Delray Beach, 543 So.2d 451 (Fla. 4th DCA 1989).............18
Griffin v. Burns, 570 F.2d 1065 (1st Cir. 1977).......................................................24
Griffin, 570 F.2d at 1074...................................................................................23,
25
In re: Matter of Protest of Election Returns & Absentee Ballots in
November 4, 1997 Election for City of Miami, 707 So. 2d 1170
(
F
l
a
.

3
r
d

D
C
A
1998).................................................................................................13
Intercargo Internacional de Carga, S.A. v. The Harper Group, Inc.,
659 So. 2d 1208 (Fla. 3rd DCA 1995) .....................................................................16
Jacobs v. Seminole County Canvassinb Board,
SC00-2447 (Fla. Dec. 12, 2000)............................................................................7,
8
Jolley v. Whatley, 60 So. 2d 762 (Fla. 1952).........................................................5,
6
iv

McDonald v. Miller, 90 So. 2d 124 (Fla. 1954)......................................................17
McLean v. Bellamy, 437 So. 2d 737 (Fla. 1st DCA 1983)............................3, 5, 6, 13
Marks v. Stinson, 19 F.3d 873 (3rd Cir. 1994).........................................................11
Murthy v. N. Sinha Corp., 644 So.2d 983 (Fla. 1994) ...........................................15
Nelson v. Robbinson, 301 So. 2d 508 (Fla. 2nd DCA 1974)....................................19
Oregon v. Mitchell, 400 U.S 112 (1970).................................................................23
Pearson v. Taylor, 32 So. 2d 826 (Fla. 1947)...................................................17, 19
Prado v. Johnson, 625 S.W.2d 368 (Tx. Civ. App. - San Antonio
1
9
8
1
,

w
r
i
t
dism'd.)....................................................................................................6
Smiley v. Holm, 285 U.S. 355 (Fla. 1932)...............................................................21
Smith v. Tynes, 412 So. 2d 925 (Fla. 1st 1982)........................................................16
Spiegel v. Knight, 224 So. 2d 703 (Fla. 3rd DCA 1969)..........................................19
State ex rel. Robbinson v. N. Broward Hosp. Dist., 95 So.2d 434
(
F
l
a
.
1957)................................................................................................................19
State ex rel. Titus 470 So. 309 (Fla. 1936)................................................................6
Taylor v. Martin County Canvassing Board, Case No. SC00-2448
(
F
l
a
.

D
e
c
.

1
2
,

2
0
0
0
)
..................................................................................................8
United States v. Raines, 362 U.S. 17 (1960)...........................................................22
Voting Integrity Project, Inc. v. Bomer, 199 F.3rd 773 (5th Cir. 2000)....................23
v

Wilson v. Revels, 61 So. 2d 491 (Fla. 1952)............................................................10
Winterfield v. Town of Palm Beach, 455 So. 2d 359 (Fla. 1984)............................18
STATUTES
4
2

U
.
S
.
C
.

§
1971......................................................................................................20
4
2

U
.
S
.
C
.

§
1971(a)(2)(B).......................................................................................20
42 U.S.C. § 1973aa-1.........................................................................................22,
24
4
2

U
.
S
.
C
.

§

1
9
7
3
a
a
-
1(a)..........................................................................................22
§

1
5
.
0
3
,

F
l
a
.
Stat......................................................................................................15
§

9
7
.
0
2
1
,

F
l
a
.

S
t
a
t
.
....................................................................................................9
§ 9 7 . 0 2 1 ( 1 ) ( d ) , F l a . S t a t .
.........................................................................................10
§

9
7
.
0
4
1
(
1
)
(
a
)
,

F
l
a
.
Stat...........................................................................................20
§ 9 7 . 0 4 1 ( 1 ) ( b ) ( 2 ) , F l a .
Stat......................................................................................20
§ 101.62, Fla. Stat..................................................................................................2,
5
§ 101.64, Fla. Stat..............................................................................................5,
7, 8
vi

§ 101.647, Fla. Stat............................................................................................5,
7, 8
§

1
0
1
.
6
8
(
2
)
(
c
)
,

F
l
a
.
Stat.............................................................................................8
§ 101.68(2)(c)(1), Fla. Stat....................................................................................8,
9
§ 102.168, Fla. Stat. ....................................................................................11, 15,
16
§

1
0
2
.
1
6
8
(
3
)
(
a
)
,

F
l
a
.
Stat.........................................................................................11
§

1
0
4
,

F
l
a
.
Stat.........................................................................................................16
§

1
0
6
,

F
l
a
.
Stat.........................................................................................................16
§

1
0
6
.
2
3
,

F
l
a
.
Stat....................................................................................................16
Chapter 98-129, Section III, 1998 Laws of Florida .................................................9
CONSTITUTIONAL AND OTHER AUTHORITY
A r t i c l e I , S e c t i o n 4 , F l a . C o n s t .
..............................................................................21
Article I, Section 8, cl. 18, Fla. Const. ...................................................................21
A r t i c l e I V , S e c t i o n 2 , F l a .
Const..............................................................................22
Section 1 of Fourteenth Amendment.......................................................................22
vii

Section 5 of Fourteenth Amendment...........................................................21, 22,
23
Section 5 of Fifteenth Amendment..........................................................................21
Comm. on Election Reform, H.R. 99-339, Final Analysis On H.B.
281 @ III.A (Fla. July 15, 1999)........................................................................5, 7,
9
viii

STATEMENT OF THE CASE
This action was commenced in Bay County before the Circuit Court for the
Fourteenth Judicial Circuit. Amended Complaint, page 2, ¶2. On November 21, 2000,
the Bay County Circuit Court granted the Motion of George W. Bush to transfer venue
of the action to Leon County. Id. Plaintiff then filed an amended Complaint on
November 29, 2000 in Leon County. Counsel for the Florida Elections Canvassing
Commission filed a motion to dismiss on December 4, 2000. Plaintiff filed appropriate
responses and a hearing was held before the Honorable Judge L. Ralph Smith.
On December 7, 2000, Judge Smith entered an Order of Dismissal with
Prejudice of the Plaintiff's Amended Complaint. This appeal followed.
STATEMENT REGARDING JURISDICTION
This case fails to satisfy the requirement that it be a matter requiring immediate
resolution. Following the United States Supreme Court's decision in Bush v. Gore,
531 U.S. ___ (2000), slip. op., the ultimate relief sought by the Plaintiff below,
amendment of the certified returns for Bay County, is now moot.
SUMMARY OF THE ARGUMENT
Based on the facts alleged, the circuit court determined that the complaint failed
to state a cause of action. While perhaps alleging a technical violation of a "directory"
provision of Section 101.62 of Florida's election statutes, Plaintiffs failed to allege
substantial non-compliance with elections law, nor establish an effect on the integrity
1

of the ballots or the integrity of the election.
The circuit court's decision is supported by 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 alleged in this case should
be allowed to disenfranchise the thousands that voted via absentee ballots.
ARGUMENT
I.
THE CIRCUIT COURT CORRECTLY HELD THAT THERE WAS NO
LEGAL BASIS TO GRANT APPELLANT ANY RELIEF.
The seminal opinion in Florida on the test for determining the validity of
absentee ballots, and, in turn, for determining whether a cause of action exists to
contest the validity of ballots, is this 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
2

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.
1
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 DCA 1983). In this instance, Plaintiff failed to sufficiently
allege that such substantial noncompliance occurred.
1The Court also held in Boardman that "[t]he canvassing of returns, including absentee
ballots is vested in canvassing boards in the respective counties who make judgments
on the validity of the ballots." Id. at 268 n.5. "Those judgments are entitled to be
regarded by the county as presumptively correct and if rational and not clearly outside
legal requirements should be upheld rather than substituted by the impression a
particular judge or panel of judges might deem more appropriate." Id.
3

This Court held in Boardman that technical omissions or irregularities 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. 323 So. 2d 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., 323 So. 2d at 265 (emphasis added). Although the absentee voting provisions
were amended recently, the Legislature specifically adopted the Boardman standard
when it did so.
4

2
Case law, as well as an express directive from the Legislature, confirms that the
requirements in Section 101.64 and 101.647, 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 DCA 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 Section 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.
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
2See Comm. on Election Reform, H.R. 99-339, Final Analysis on H.B. 281 at III.A.
(Fla. July 15, 1999) (citing Boardman, 323 So. 2d at 265).
5

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).
In this case, as in Boardman, Jolley, and McLean, there is no sustainable
allegation "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.
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.
3 The circuit court properly refused to do so as well.
In the Plaintiff's Complaint, only technical violation of election laws were
alleged. The Complaint contains no reference to a statute which expressly declares that
its violation is a cause for invalidating an absentee ballot. Instead reference is made
to violations of Sections 101.64 and 101.647, Florida Statutes. However, neither
3See, e.g., id.; Jolley, 60 So. 2d at 767; State ex rel. Titus, 470 So. 309, 309 (Fla.
1936); McLean, 437 So. 2d at 746; accord Prado v. Johnson, 625 S.W.2d 368, 370
(Tex. Civ. App.--San Antonio 1981, writ dism'd); Attorney Gen. ex rel. Miller v.
Miller, 253 N.W. 241, 246 (Mich. 1934).
6

provision expressly declares that failure to comply with the acts it proscribes will
cause a ballot not to be counted. Absent such a provision, or reference to any
mandatory statute, the Plaintiff's Complaint fails to state a cause of action. The
directory, rather than mandatory, nature of the laws cited by the Plaintiff is apparent
upon review of their legislative history.
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)(emphasis added). The Legislature expressly
quoted and relied upon the bright line rule established in Boardman as the proper
interpretation of the current statute.
Recently, this Court adopted the same reasoning in Jacobs v. Seminole County
Canvassing Board, SC 00-2447 (Fla. Dec. 12, 2000). In Jacobs, this Court adopted
the reasoning of the lower court which decided that irregularities in the handling of
absentee ballots applications would not cause absentee ballots to be invalid: "Unless
a statutory provision also specifically states that the lack of information voids
7

the ballot, the lack of the information does not automatically void the ballot."
Jacobs, slip op. at page 5, quoting lower court, which cited Final Bill Research &
Economic Impact Statement, House of Representatives Committee on Election
Reform, CS/HB Sections 3743, 3941 at page 8 (passed as CS/HB 1402) on May 12,
1998.
The Court compared Section 102.68(2)(c), Florida Statutes, which requires that
a voter's name, address and signature must be included on an absentee ballot, less the
ballot be declared invalid. No such mandate is included in the statutes allegedly
violated in Jacobs, nor in the statutes put at issue by the Plaintiff in this case. The
Court found that the statute at issue in Jacobs, which requires that absentee ballot
requests "must" disclose certain items, does not constitute a definitive statement by
the Legislature that requests lacking such information are illegal or void. The same is
true of Section 101.64 and 101.647. Id.; see also Taylor v. Martin County
Canvassing Board, Case No. SC00-2448 (Fla. Dec. 12, 2000) (adopting the same
reasoning as cited in Jacobs).
Florida's election statutes expressly identify the circumstances under which an
absentee ballot will be considered illegal, and failure to follow the procedures for
submitting 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
8

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 allegation that any voted ballot lacked these
requirements. Thus, there is absolutely no basis under the statute to declare any
absentee ballot illegal, or grant relief in this cause.
Both before and after changes in the law occurred in 1998, an "absent elector"
was defined as, among other possible definitions, as a person unable to attend the
polls on election day. Prior to 1998, the legislative history of this definition
demonstrated that it was very broad in nature:
Section 97.021, F.S. redefines an "absent elector" by
removing the reasons a person may vote absentee. So long
as a person is unable to attend the polls on election day,
regardless of the reason, he or she may vote by absentee
ballot.
Senate Staff Analysis and Economic Impact Statement, SB2252 (Companion bill to
HB233, March 14, 1996, at page 3).
When the definition of an "absent elector" was changed in 1998, via Chapter 98-
129, Section III, 1998 Laws of Florida, the "unable to attend" language was
transformed into the more liberal language which allows absentee voters to include
those who simply "may not be in the precinct of his or her residence during the hours
9

the polls are open for voting on the day of the election." § 97.021(1)(d), Fla. Stat.
Despite a new list of other specific reasons to claim an absentee ballot under the new
law, one still may vote absentee solely because they may be absent on election day.
Nothing in this law requires that absentee electors must be absent on election date, lest
their ballots become illegal votes.
Under either version of the statute, there is no requirement that the elector be
actually absent from the county on election day as a precondition of voting absentee.
It is sufficient for the elector to certify that he or she is unable to attend the polls on
election day, regardless of the reasons. Clearly the legislature could not have intended
that the law be mandatory. The law allows for the mailing of ballots and the numerous
intermediary steps, and handlers, mailing entails. §101.647, Fla. Stat. Absentee ballots
sent by mail filter through many hands and are certain to be delivered in groupings of
more than two, by persons bearing no special written permission. This scenario did
not trouble the legislature; it certainly may not serve as a basis for disenfranchising so
many voters.
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
10

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 allegations in
Plaintiff's Complaint 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;
4
There Was No "Fraud, Gross Negligence Or Intentional Wrongdoing."
There Was No Allegation of Actual Fraud
Contrary to Plaintiff's unsubstantiated and vague reference to "gross
negligence," the Complaint failed to sufficiently allege facts supporting such a
conclusion. Where, as here, there is not even an allegation that fraud contaminated
4In Gore v. Harris, Nos. SC00-2431, Slip op. at 20-23, this Court recently rejected the
"reasonable probability" standard lower case for determining the Appellant's burden
under Section 102.168, which had been followed consistently by Florida courts prior
to this election. Instead, the Court held that Appellant need only show that their
allegations, if true, would "place in doubt" the results of the election. Id. Appellees
object to this standard for the reasons set forth in their Amended Brief of Appellees,
at 42-43, n.25 and the Clarification of Argument, submitted in that case. However,
regardless of the standard applied, Appellant in this case did not sufficiently allege a
cause of action under either standard.
11

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 allegation that fraud thwarted the voters' will, the election results
should not be overturned. See Bolton.
5
An alleged "possibility" of fraud is not sufficient
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 in the speculative allegations here, and still this
Court denied the election challenge. Id. at 722.
5Rejection of Appellant's claims on these allegations was even more appropriate
given the extreme relief sought: disenfranchising thousands of voters. See Marks v.
Stinson, 19 F.3d 873 (3rd Cir. 1994) (holding that public's interest "is not served by
arbitrarily ignoring the absentee vote, a substantial but undetermined portion of
which was either legally cast or came from voters who would have gone to the polls
but for the [erroneous advice]"); cf. In re Protest, 707 So. 2d at 1174
(distinguishing Marks, in which voters were erroneously allowed by election
officials to vote absentee from situation involving massive voter fraud).
12

6 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."
7
Under Beckstrom, votes cannot be disqualified in this case on the basis of
Appellant's speculation or even a bare inference of fraud or gross negligence. 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
6In Beckstrom, there were also other alleged irregularities in the handling of absentee
ballots, among them that absentee ballots were left unattended and accessible at the
office of the elections supervisor; that ballots were opened outside the presence of any
member of the canvassing board; that individuals who were not employees of the
elections supervisor participated in the opening of absentee ballots; and that election
officials failed to compare the signature on the voter's certificate with the signature in
the voter registration records. See 707 So. 2d at 723.
7Id. at 725-727; see also Carn v. Moore, 76 So. 337, 340 (Fla. 1917) ("[T]he courts
should not set aside an election because some official has not complied with the law
governing elections, where the voter has done all in his power to cast his ballot
honestly and intelligently, unless fraud has been perpetrated or corruption or coercion
practiced to a degree to have affected the result.").
13

and pervasive fraud.
8 Here, where there is not even an allegation of fraud in the actual casting and counting
of ballots, this remedy should not be granted.
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
8See, e.g., In re the Matter of the Protest of the Election Returns and Absentee Ballots
in the Nov. 4, 1997 Election for the City of Miami, 707 So. 2d 1170 (Fla. Dist. Ct.
App. 1998) (invalidating all absentee ballots where there was clear and convincing
evidence of massive absentee voter fraud); Bolden v. Potter, 452 So. 2d 564 (Fla.
1984) (invalidating all absentee ballots where there was clear and convincing evidence
of substantial fraudulent vote-buying). In both of those cases, the Court found
extensive fraud and corruption was both pled and proven.
14

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.
Plaintiff seeks this Court to reverse the dismissal of its cause in order to begin
discovery in an attempt to prove its allegations. However, as this Court has held, "the
election contest statutes are not to be regarded as mere fishing licenses for contestors
to ascertain the correctness or incorrectness or their statements of contest." Burke v.
Beasley, 75 So.2d 7, 9 (Fla. 1954), citing Gray v. Huntley, 238 P. 53 (Colo. 1925).
Plaintiff must first establish a sustainable cause of action and has failed to do so.
Allegations Concerning Use of the State Seal Do Not Constitute a
Election Contest Cause of Action
Plaintiff finally alleges that absentee ballots should be invalidated because the
Republican Party made use of the state seal for partisan purposes in violation of
Section 15.03, Florida Statutes. There are two important reasons why such a claim
does not support an election contest cause of action. First, violation of this statute,
or error in the manner of soliciting votes, is not a basis for an election contest pursuant
to Section 102.168, Florida Statutes. Second, there is no private right of action
15

created under Section 15.03 which might grant standing to the Plaintiff to complain of
its violation.
Regulatory and penal statutes do not create a private cause of action absent
evidence in language or legislative history of legislative intent to create such a private
cause of action. Murthy v. N. Sinha Corp., 644 So. 2d 983 (Fla. 1994). Plaintiffs can
cite to no such language or legislative history which would support the judicial creation
of a new cause of action for violation of Section 15.03. A similar allegation was made
in against the Republican Party and dismissed in Florida Democratic Party v. Jeb
Bush, Case No. 00-2554 (Fla. 2nd Cir. Ct. 2000) (Ex. 4 to the Secretary of State's
Motion to Dismiss). This Court should similarly find no basis for Plaintiff's claims.
In Smith v. Tynes, 412 So. 2d 925 (Fla. 1st DCA 1982), the First District Court
of Appeal affirmed the dismissal with prejudice of an amended complaint for an
election contest. In a case remarkably similar to the one at issue here, a disappointed
candidate filed an election contest under Section 102.168 alleging violations of various
subsections of Chapter 104 and 106, Florida Statutes. As in the present case, the
petitioner in Tynes made a "bald allegation" that the technical violations alleged were
sufficient to produce a different result in the election. However, the trial court found,
and the First District agreed, that the law requires more than a mere allegation that such
a violation could produce such a different result; it must shown that such violations
16

would produce a different result. Tynes, 412 So.2d at 926.
It is true that the Plaintiff tracked the statutory language requiring that an election
contest "place in doubt" the outcome of an election. However, such a bald allegation
is not enough. In Intercargo Internacional de Carga, S.A. v. The Harper Group,
Inc., 659 So. 2d 1208 (Fla. 3rd DCA 1995) a plaintiff simply tracked statutory language
and alleged some vage activity in order to obtain long-arm jurisdiction over a proposed
defendant. The District Court of Appeal found that, without more, a cause of action
could not be sustained and a motion to dismiss was appropriate. Likewise in
Ginsberg v. Lennar Florida Holdings, Inc., 645 So. 2d 490 (Fla. 3rd DCA 1994), the
court found that a plaintiff did not state a cause of action by alleging in conclusive
form, and tracking the language of a statute, acts which lack factual allegations and
merely state bear legal conclusions. This is the exact situation this Court is presented
with by Plaintiff's Complaint. Although the number of absentee ballots cast and tallied
in Bay County is mentioned in the Complaint, no allegation is made as to the number
of votes cast illegally or whether that number of votes is sufficient to "place in doubt"
the outcome of the election.
Appellant Is Barred From Bringing A Post Election Challenge To
Pre-Election Irregularities On Grounds Of Estoppel, Waiver and
Laches.
Appellant is barred by estoppel, waiver, and laches from attempting to invalidate
17

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 Bay County voters of their votes. Because
Appellant delayed until after the election, principles of equity bar his suit.
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 who 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.
9
9See also Winterfield v. Town of Palm Beach, 455 So. 2d 359, 362 (Fla. 1984) ("a
party is estopped from voiding an election where he was on notice of the irregularity
18

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 she 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."
10 A party who is not vigorous about protecting his rights at a time when it would do
before the election"); Greenwood v. City of Delray Beach, 543 So. 2d 451, 452 (Fla.
4th DCA 1989) (holding that one who challenges the "result of an election based upon
improper notice thereto . . . must show that he was not aware of the deficiencies prior
to the election").
10Speigel v. Knight, 224 So. 2d 703 (Fla. 3d DCA 1969); see also State ex rel.
Robinson v. N. Broward Hosp. Dist., 95 So. 2d 434 (Fla. 1957) (same); Pearson v.
Taylor, 32 So. 2d 826 (Fla. 1947) (same); Nelson v. Robinson, 301 So. 2d 508 (Fla.
2d DCA 1974) (same).
19

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.
Title 42 of the United States Code, Section 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
20

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.
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.
1 1 T h i s p o w e r e x t e n d s t o t h e r e g u l a t i o n o f
11See Burroughs v. United States, 290 U.S. 534, 547 (1934) ("The power of Congress
to protect the election of President and Vice President from corruption being clear, the
choice of means to that end presents a question primarily addressed to the judgment
of Congress."); see also Association of Community Organizations for Reform Now
v. Miller, 129 F.3d 833, 836 n.1 (6th Cir. 1997) (citing Burroughs in finding that
"Congress has been granted authority to regulate presidential elections"); Condon v.
Reno, 913 F. Supp. 946, 961 (D.S.C. 1995) (finding that Article I, Section 4 applies
21

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).
12 Congress has specifically protected these rights of absentee voters through other
statutes, as well. Under Title 42 of the United States Code, Section 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 Section 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 elections for President and Vice President, and that Congress has additional power
to regulate elections under Article I, Section 8, cl. 18 ("necessary and proper" clause),
Section 5 of the Fourteenth Amendment and Section 2 of the Fifteenth Amendment).
12United States v. Mosley, 238 U.S. 383 (1935) (right to have vote counted); see also
Griffin v. Burns, 570 F.2d 1065, 1074 (1st Cir. 1977) ("It has been repeatedly
recognized that all qualified voters have a constitutionally protected right to vote, and
to have their votes counted").
22

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 Section
1973aa-1 were targeted by Section 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 Section 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 Section 1971, to assure that voters will not be
disqualified through the omission of immaterial information from their applications.
13 Even if the power to seek affirmative relief under the statute is
13See also Oregon v. Mitchell, 400 U.S. 112 (1970) (upholding Congress's power to
provide for absentee balloting in presidential elections, with four justices finding power
under Section 5 of the Fourteenth Amendment, three finding power under Congress's
right to protect travel, and one finding power under Congress' power to regulate
23

reserved for the attorney general, the court could not fashion a remedy in this case
which would directly violate a federal statute. Applying Section 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
national elections).
24

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
25

in her 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 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.
26

______________________________
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.

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.
JOHN LITTLE
MICHAEL S. BURKE
Steel, Hector & Davis
Burke & Blue, P. A.
215 South Monroe Street, Ste. 601
221 McKenzie Avenue
Tallahassee, Florida 32301-1804
Panama City, Florida 32401
Fax: 222-8410
Fax: (850) 784-0857
JOSEPH P. KLOCK, JR.
JONATHAN SJOSTROM
Steel Hector & Davis
Steel, Hector & Davis
200 S. Biscayne Blvd., Suite 4000
215 S. Monroe Street, Suite 601
Miami, Florida 33131-2310
Tallahassee, Florida 32301
Fax: 222-8410
Fax: 222-2300
ALVIN L. PETERS
DEBORAH K. KEARNEY
36 East Oak Street
400 S. Monroe Street, PL 02
Panama City, Florida 32401
Tallahassee, Florida 32399
Fax: (850) 785-5124
Fax: 922-5763
____________________________
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

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