Professional Documents
Culture Documents
00875-Volusia Appellants Brief
00875-Volusia Appellants Brief
05-13990-B
Plaintiffs/Appellants,
v.
Defendants/Appellees.
________________
APPELLANTS’ BRIEF
________________
DE LA O & MARKO BROWN, GOLDSTEIN & LEVY, LLP
Attorneys for Appellants Counsel for Appellants
3001 S.W. 3rd Avenue 120 E. Baltimore Street, Suite 1700
Miami, Florida 33129 Baltimore, Maryland 21202
Telephone: (305) 285-2000 Telephone: (410) 962-1030
following is a full and complete list of all trial judges, attorneys, persons,
ii
STATEMENT REGARDING ORAL ARGUMENT
are in the process of updating their voting machines to comply with a new
county officials are resisting the updates because they want to be able to
continue having hand re-counts of paper ballots. Oral argument will assist
the Court in analyzing the interplay between the new Florida voting machine
statute, the Americans with Disabilities Act, and the desire of some county
officials not to update their voting machines. Because the next election in
Volusia County is scheduled for October 11, 2005, this case needs to be
decided promptly, and oral argument will help the Court render a prompt
decision. On July 25, 2005, the Court ordered that this appeal be expedited
iii
TABLE OF CONTENTS
Page
Table of Contents.............................................................................. iv
I. Procedural History.........................................................................2
Argument ..........................................................................................13
iv
Page
Preliminary Injunction.......................................................27
an injunction............................................................28
v
Page
Conclusion .......................................................................................30
Certificate of Compliance................................................................32
Addendum
vi
TABLE OF AUTHORITIES
Cases Page
Elrod v. Burns,
427 U.S. 347, 96 S. Ct. 2673 (1976) ....................................................... 28
Garcia-Mir v. Meese,
781 F.2d 1450 (11th Cir. 1986) ............................................................... 15
Jack Kahn Music Co., Inc. v. Baldwin Piano & Organ Co.,
604 F.2d 755 (2d. Cir. 1979) ................................................................... 10
Johnson v. Mortham,
926 F. Supp. 1540 (N.D. Fla. 1996) ........................................................ 28
vii
Page
Nelson v. Miller,
170 F.3d 641 (6th Cir. 1999) .................................................. 14, 16, 19, 20
Shotz v. Cates,
256 F.3d 1077 (11th Cir. 2001) .......................................................... 16, 17
Tenn. v. Lane,
541 U.S. 509, 124 S.Ct. 1978 (2004) ...................................................... 15
Tepper v. Miller,
82 F.3d 989 (11th Cir. 1996) .................................................................... 10
*Troiano v. LePore,
No. 03-80097-Civ-Middlebrooks/Johnson,
slip op. at 8-10 (S.D. Fla. May 1, 2003)............................................ 16, 20
viii
Page
Session Laws
28 U.S.C. § 1292............................................................................................. 1
28 U.S.C. § 1331............................................................................................. 1
28 U.S.C. § 1343............................................................................................. 1
42 U.S.C. § 12133......................................................................................... 28
42 U.S.C. § 15481......................................................................................... 29
28 C.F.R. § 35.104........................................................................................ 18
State Statutes
ix
Page
Other
x
STATEMENT OF JURISDICTION
the United States District Court for the Middle District of Florida on July 21, 2005.
1. Did the District Court erroneously conclude that the Plaintiffs are not
substantially likely to prevail on their claim under the Americans with Disabilities
Act that the Defendant has discriminated against them in the operation of its voting
program?
2. Did the District Court erroneously conclude that the Plaintiffs are not
substantially likely to prevail on their claim the County violated Florida law when
County to deploy accessible voting machines in each precinct at the next election,
considering that (1) Plaintiffs are likely to prevail on the merits of their claim,
(2) Plaintiffs would suffer irreparable harm if no injunction were to issue, (3) the
1
County already has received a grant to pay for handicap accessible voting
machines, and (4) vindication of the rights protected by the ADA and Florida law
After the Volusia County Council violated the Americans with Disabilities
Act, the Rehabilitation Act and Section 101.56062(2) of the Florida Statutes by
refusing to purchase voting machines that enable the blind to vote independently,
blind voters in Volusia County, Florida and groups that advocate for the blind
brought this action to require the County to do so. The trial court erroneously
the merits and denied the motion for preliminary injunction. This appeal followed.
I. Procedural History
On July 5, 2005, five blind Volusia County voters and two organizations that
advocate for the blind filed this suit in the U.S. District Court for the Middle
District of Florida. The Complaint alleged that Volusia County and its Supervisor
of Elections, Ann McFall, violated Title II of the Americans with Disabilities Act
refusing to acquire accessible voting machines that blind people can use
2
independently.1 The Plaintiffs also moved for a preliminary injunction ordering
On July 13, 2005, the County opposed the motion for preliminary
injunction.3 Relying on the affidavit of County Council Chairman Frank Bruno, the
County said it wanted to preserve its ability to conduct hand re-counts of paper
ballots.4 The County would not be able to perform hand re-counts of paper ballots
if it purchased handicap accessible voting machines certified for use in the State of
Florida, because Florida has not certified any accessible machines that generate
The Supervisor of Elections disagreed with the County. She filed an Answer
purchase the handicap accessible voting machines, and asking the district court to
grant the injunction and order the County to acquire the machines.6 The County
then moved to strike all papers filed by the Supervisor of Elections,7 and the
1
RE-11.
2
RE-23.
3
RE-145.
4
RE-182, & 3.
5
Id., ¶¶ 3, 4; RE-143.
6
RE-177-78.
7
RE-221.
3
district court granted the County=s motion to strike,8 except as to the declaration of
On July 15, 2005, the district court heard oral argument on the motion for
preliminary injunction but did not take any testimony.10 The evidentiary record
consisted solely of the affidavits and exhibits that the parties filed before the
hearing.11 Because Plaintiffs did not submit evidence showing the funding
required for a Rehabilitation Act claim, Plaintiffs pressed their request for
preliminary injunctive relief only under the ADA and Florida law.12
On July 21, 2005 the district court denied the motion for preliminary
prevailing on their ADA claim because the Astate of the law@ is unsettled as to
whether the ADA requires handicap accessible voting machines.14 The district
court also concluded that the Florida Election Code authorizes, but does not require
accessible voting machines at each precinct. Thus, the district court concluded, the
8
RE-227; RE-257.
9
TR 31-34; RE-197.
10
RE-48, & 4.
11
During oral argument, the district court admitted into evidence the affidavits and
exhibits filed by the Supervisor of Elections, even though the district court had
stricken her pleadings.
12
TR 10.
13
RE-232.
14
Id. at 5, RE-236.
4
Plaintiffs were not likely to prevail on their claim that Volusia County was
machines.15
On July 21, 2005, the same day the district court denied their motion for
preliminary injunction, the Plaintiffs filed a notice of appeal in the district court,16
grounds that time was running out for the County to acquire handicap accessible
On July 25, 2005, this Court denied the emergency motion but expedited this
appeal by shortening the briefing deadlines and ordering oral argument before the
In 1995, Volusia County installed and began using the AAccu-Vote@ optical
scan voting system for all elections.17 This system requires voters to read and mark
a printed paper ballot.18 Because they cannot see the paper ballots, blind citizens in
Volusia County have been unable to vote independently and secretly; instead,
15
Id.
16
RE-238.
17
RE-130, ¶ 4.
18
Id.
5
third-parties read the ballots to them, and blind voters, in turn, reveal their voting
Atouchscreen@ voting machine for each Volusia County precinct to supplement the
teller machines, have a headphone jack that can audibly tell blind voters all the
information on the ballot and provide a keypad for blind voters to make their
selections secretly and independently.22 The County, however, did not follow Ms.
Lowe=s recommendation.
immediately. Instead, this portion of the code would become effective one year
19
RE-126, ¶ 4.
20
RE-129, & 3.
21
RE-130, & 5.
22
Id.; RE-54, & 6.
23
Fla. Stat. § 101.56062(2). See Addendum.
6
after the Florida legislature appropriated funds for counties to purchase the
acquire the accessible voting machines required by the new law, 25 and the State
County does not use the grant to buy accessible voting machines, it will have to
24
A footnote to ' 101.56062, Fla. Stat. explains:
handicap
Systems, Inc.28 The Florida Secretary of State, after rigorous testing, had certified
these machines for use in all Florida elections.29 Nevertheless, some Council
contemporaneously generate a paper ballot that would be available for hand re-
During the June 29, 2005, Council session, the County Attorney, Daniel
Eckert, unequivocally advised the Council that they must approve the contract to
purchase the machines or the County would be violating the law. He told the
Your policy is not to set federal law. You=re not the Congress . . . .
You=re not the Legislature. The Legislature has determined the course
for the law here. The Council=s role is not to establish the voting
standards for the State of Florida. It is to provide for the electors
certified systems and to comply with the law as it is written. . . .
[B]ecause I believe that you are controlled by the law, I will say to
you that this is the only policy, the only legal option that you have at
28
RE-130, & 7; RE-55, & 12; RE-117.
29
RE-130, & 8; RE-141.
30
RE-182, ¶ 3.
8
this point.31
Nonetheless, the County Council voted not to purchase the handicap
The next day, Florida Attorney General Charlie Crist advised the Chair of
the County Council that the County=s refusal to purchase accessible voting
***
. . .While the county council is concerned about this voting system not
recording the votes in a paper format, these concerns do not relieve
the county council of its obligation under section 101.56062, Florida
Statutes, to have a system in place that is accessible for voters with
disabilities by the time of the first election after July 1, 2005.
***
While section 101.5602, Florida Statutes, does not itself
prescribe a penalty for violation of its terms, the Florida Election
Code contains [criminal] penalties for violations of its provisions.
Moreover, interference with the ability of a voter with a disability to
exercise his or her right to vote unassisted could subject the county to
liability for a civil rights violation under state law.33
The next election in Volusia County B for municipal offices B is scheduled to
31
RE-55-56, ¶ 13.
32
RE-182, ¶ 3.
33
RE-143-144 (footnotes omitted).
34
RE-56, ¶ 14.
9
STATEMENT OF THE STANDARD OF REVIEW
injunction considers whether the trial judge abused his discretion. However, that is
not the case if the lower court’s decision turns on an erroneous interpretation of
law. Then, review is plenary and the appellate court considers the matter de
novo.35 And where, as here, the trial judge made fact determinations solely on
affidavits, with no live record, the appellate court is in as good a position to decide
factual matter as the trial court.36 Indeed, when the further passage of time may
moot the requested relief, the appellate court may do more than vacate and remand
for further proceedings, it may direct the district court to grant the injunction.37
Because the factual record here consists of affidavits, because the trial
on the merits, and because time is running out before the occurrence of the next
election in Volusia County, this Court has the duty to determine de novo whether
35
Johnson & Johnson Vision Care, Inc. v. 1-800 Contacts, Inc., 299 F.3d 1242,
1246 (11th Cir. 2002); Tepper v. Miller, 82 F.3d 989, 993 (11th Cir. 1996); Tally-
Ho, Inc. v. Coast Comty. Coll. Dist., 889 F.2d 1018 (11th Cir. 1990).
36
Jack Kahn Music Co., Inc. v. Baldwin Piano & Organ Co., 604 F.2d 755, 758
(2d Cir. 1979); see Phila. Marine Trade Ass’n, 909 F.2d 754, 756 (2d Cir. 1990)
(holding that review is broader where facts are conceded).
37
See Tally-Ho, Inc., 889 F.2d at 1029 (reversing district court’s denial of
preliminary injunction and remanding with instructions to enter the same); see also
Southeastern Promotions, Ltd. v. City of Mobile, 457 F.2d 340, 341 (5th Cir. 1972).
10
Plaintiffs have sufficiently demonstrated their right to injunctive relief and, if so, to
This case arises from the refusal of a governmental entity to comply with
because of its concerns about the features of available voting machines. Although
the Americans with Disabilities Act and Florida law require Volusia County to
make accessible voting machines available to its blind voters so that they may vote
on the same terms as sighted voters, that is, without the additional burdens of third-
party assistance and disclosing ballot decisions, the County determined to delay the
machines certified by the state. Neither Congress nor the Florida Legislature have
accessible voting machines, Plaintiffs had the burden of showing that they were
substantially likely to prevail on the merits of their claim at trial, that they were
irreparably injured, that their injury outweighed any harm to the Defendants and
that the injunction was in the public interest. In denying the injunction, the trial
court considered only the first issue. The district court’s conclusion that Plaintiffs
11
had failed to show that they were substantially likely to prevail on the merits of
their ADA claim stemmed from its mistaken belief that when the state of the law is
unsettled, federal courts may not issue preliminary injunctive relief. When Title II
of the ADA is applied to the facts of this case, it is apparent that Plaintiffs are
prohibition of the ADA, the new construction and alteration of existing facilities
provisions of the title’s implementing regulations, and even under the existing
The district court erred in determining that Plaintiffs were not substantially
likely to prevail on their claim under Florida law, because the district court
mistakenly believed that a 1973 provision of the Florida Election Code somehow
limited the scope of Section 101.56062, Florida Statutes, which was enacted in
2002. In fact, the newer law guarantees all disabled Florida voters the right to cast
a secret, independent and verifiable ballot at all elections held after July 1, 2005.
Although the trial court did not to consider the remaining factors
determining whether a preliminary injunction should issue, this Court can and
should decide these matters. The record before the trial court was exclusively a
paper record, and the remaining factors are in this instance more questions of law
than fact. Burdens on voting have been held to be irreparable injury, as are
12
violations of statutory rights. Injury to the County from the grant of an injunction
would be negligible: the record demonstrates that the County has received a State
grant to acquire the machines without cost. Finally, the vindication of rights
upcoming, and because the Circuit Court has a record from which it may resolve
this matter, this Court should vacate the decision of the trial court, and remand with
least one accessible voting machine at each precinct for its next election.
ARGUMENT
to prevail on the merits; (2) absent the injunction, the plaintiff will suffer
irreparable injury; (3) the irreparable injury will outweigh any harm to the
13
defendant flowing from the grant of the injunction and (4) the injunction serves the
public interest.38
The district court addressed only the first factor. It believed that although
another judge in the same district had held that a neighboring county’s failure to
state of the law is such that there is a substantial likelihood that Plaintiffs will
prevail in their action under the ADA.”41 Because the court expressed no view as
preliminary injunction may not issue when the law is unsettled or where there are
conflicts among the persuasive authority. Such a bright-line rule, however, would
38
Univ. of Texas v. Camenisch, 451 U.S. 390, 392, 101 S.Ct. 1830, 1832 (1981).
39
Am. Ass’n of People with Disabilities v. Hood, 310 F. Supp. 2d 1226, 1241
(M.D. Fla. 2004).
40
Nelson v. Miller, 170 F.3d 641 (6th Cir. 1999); Am. Ass’n of People with
Disabilities v. Shelley, 324 F. Supp. 2d 1120 (C.D. Cal. 2004).
41
RE-236.
42
11A Charles Allen Wright, Arthur A. Miller & Mary Kay Kane, Federal
Practice and Procedure § 2948.3 (2d. 1995) (“Limiting the preliminary injunction
to cases that do not present significant difficulties would deprive the remedy of
much of its utility.”).
14
Plaintiffs have the burden of persuasion to show that they have a substantial
likelihood of prevailing on appeal.43 To meet that standard “[a]ll courts agree that
plaintiff must present a prima facie case but need not show that he is certain to
preliminary injunction) is the need to prevent the judicial process from being
rendered futile by defendant’s action or refusal to act,”45 the stronger the plaintiffs’
arguments with respect to the balance of harms and the public interest, the lower
the standard they must meet with respect to the likelihood of prevailing on the
prevail on the merits of their claim under the Americans with Disabilities Act
(“ADA”).
43
Canal Auth. v. Fla., 489 F.2d 567, 572 (5th Cir. 1974) (adopted by the 11th
Circuit as precedent); Ne. Fla. Chapter v. City of Jacksonville, 896 F.2d 1283,
1285 (11th Cir. 1990).
44
Wright, et al., supra, § 2948.3 (footnotes omitted); Univ. of Tex., 451 U.S. at
394, 101 S.Ct. at 1833-34.
45
Canal Auth., 489 F.2d. at 573.
46
Id. at 576; cf. Garcia-Mir v. Meese, 781 F. 2d 1450, 1453 (11th Cir. 1986)
(holding that when the balance of harms and public interest weigh in favor of the
appellant, a lesser showing of substantial likelihood of prevailing on appeal is
15
programs and activities.47 One of the activities that the ADA addresses is voting.48
Indeed, the ADA’s statement of findings singled out “voting” as a “critical area”
that have addressed the issue have held that a public entity’s failure to provide
accessible to the blind violates the general discrimination prohibition of Title II,
programs and activities.51 To prevail on such a claim, Plaintiffs must establish that
(1) they are qualified individuals with disabilities (2) who are discriminated against
they are qualified individuals with disabilities, (2) that sighted voters in Volusia
County are afforded the opportunity to vote secretly and independently and without
third-party involvement, and (3) because of their blindness, they are denied the
That blind voters can vote in Volusia County with third-party assistance
does not satisfy Volusia County’s obligations under the general discrimination
prohibition. A public entity must make its activities “readily accessible.”54 Unlike
sighted voters in Volusia County, the burden on the blind in Volusia County who
wish to vote is substantial. Each individual Plaintiff must (1) depend on a third
party to read the ballot accurately, (2) disclose her selections to a third party and
then (3) depend on that third party to record those selections accurately and cast
her ballot.55 In this instance, the solution is readily at hand, accessible machines
have been certified by the State of Florida for use and the legislature has
52
Nat’l Org. on Disability, 2001 WL 1231717 at *8; see Shotz v. Cates, 256 F.3d
1077, 1079 (11th Cir. 2001) (setting forth the elements of a claim under 42 U.S.C. §
12132).
53
See Statement of Facts, supra at 5-6.
54
28 C.F.R. § 35.150; see Shotz, 256 F.3d at 1080 (explaining that Title II’s
requirement that a program be “readily accessible” is not satisfied where access is
possible but heavily burdened); Westchester Disabled On The Move, Inc., 346 F.
Supp 2d. at 478 (holding that where polling places are physically inaccessible,
absentee ballots are not an inadequate substitute).
17
appropriated funds with which to purchase such machines.56 On these facts,
that Volusia County has violated the general discrimination prohibition of Title II.
Plaintiffs are also likely to prevail under either the new facilities or altered
constructed or altered after January 26, 1992.57 In this instance, Volusia County
program. But Volusia County satisfies neither the stringent new construction
alteration of the voting system made after January 26, 1992, then the facility must
be altered “to the maximum extent feasible” so that the facility is readily accessible
55
RE-21, ¶ 4.
56
RE-130, ¶¶ 6, 8; RE-141; 2004 Fla. Law 347.
57
28 C.F.R. § 35.151(a), (b).
58
RE-130, ¶ 4.
59
28 C.F.R. § 35.104; Hood, 310 F. Supp. 2d at 1235.
18
to and usable by individuals with disabilities.61 Making the voting machines
legislature has appropriated funds for their purchase.62 As another court explained,
APlaintiffs are unable to vote using the [system] without third-party assistance. If it
was feasible for [the county] to purchase a readily accessible system, then the
facilities must be made readily accessible to and usable by persons with disabilities
when that goal is readily achievable.64 Again, because the State has appropriated
funds for the purchase of accessible machines and has certified accessible
machines for use, accessibility is readily achievable. While Volusia County would
have the opportunity to claim that accessible voting machines fundamentally alter
60
28 C.F.R. § 35.151(a).
61
28 C.F.R. § 35.151(b).
62
RE-130, ¶¶ 6, 8; RE-141; 2004 Fla. Laws 347.
63
Hood, 310 F. Supp. 2d at 1235.
64
28 C.F.R. § 35.150.
19
voting or impose an administrative burden,65 the present record shows no reasons
those raised here. There, no claim was made under the ADA’s generic proscription
Moreover, the theory of the Nelson plaintiffs was that there was a right to a secret
ballots are not required as evidence that blind persons are not entitled to vote in
private when sighted people are afforded that opportunity.69 In fact, the manual
explains that a Brailled ballot is not required because “[a] Brailled ballot . . . would
have to be counted separately and would be readily identifiable, and thus would not
65
Id.
66
170 F.3d 641 (6th Cir. 1999)
67
324 F. Supp. 2d 1120 (C.D. Cal. 2004).
68
Accord Troiano at 12 (holding Nelson “readily distinguishable,” because “the
complaint in Nelson was single-issue in scope and narrowly aimed at plaintiffs’
allegedly being denied access, because of their disability, to the so-called ‘secret
voting program’ mandated by the Michigan Constitution”).
69
324 F. Supp. 2d at 1126 n3.
20
resolve the problem of ballot secrecy.”70 And perhaps because the case arose
against the background of California’s Secretary of State having decertified the one
available accessible voting machine, the Shelley court did not discuss the
obligation of the defendant to make voting equipment accessible “to the maximum
extent feasible.”
and are well-grounded in the law, Plaintiffs are substantially likely to prevail on
codified the recommendations of the Florida Secretary of the State’s Select Task
Force on Voting Accessibility.71 The purpose of that bill was to “provide greater
accessibility for disabled voters.”72 Thus, the Florida Election Code was amended
to require, among other things, alternative formats for voter registration, polling
places that were fully accessible to disabled voters, and, notably, voting machines
70
Department of Justice, Title II Technical Assistance Manual, § 7.1100 (Supp.
1994) (emphasis supplied). See Addendum.
71
House Committee on Rules, Ethics & Elections, 2002 Summary of Passed
Legislation, at 15. See Addendum.
72
Id.
21
that all voters may cast a secret, independent, and verifiable ballot.”73 To ensure
that last requirement, the Florida Election Code was amended to require “at least
interface device is any device that communicates voting instructions and ballot
information to a voter and allows the voter to select and vote for candidates and
issues.75
elections for dealing with voters with disabilities became effective November 30,
2002,76 while the requirement that all polling places in each county be physically
accessible did not become effective until July 1, 2004.77 The Florida Legislature
determined, however, that one year after it had appropriated funds for the counties
to purchase accessible voting machines, the requirement that each county have
73
Id.
74
Fla. Stat. § 101.56062(2). See Addendum.
75
Fla. Stat. § 97.021(36).
76
2002 Fla. Laws, ch. 2002-281, § 18.
77
Id. at § 16.
78
Fla. Stat. § 101.56062 n.1.
79
Id.
22
Not only is the statute clear, but so is the legislative history. As the Senate
each polling place to have at least one disability-friendly voting machine in each
precinct . . . one year after a specific appropriation by the Legislature for that
Those charged with implementing and executing the laws have appropriately
concluded that each county is obligated after July 1, 2000, to conduct elections
with at least one accessible voting machine in each precinct. Volusia County=s
own attorney so advised his client just before the County Council failed to conform
County Council that the law required accessible voting machines for the next
80
2002 Summ. Major Legis. Passed 106 (Off. of the Sec’y, ed., 2002) (emphasis
added). See Addendum.
81
Journal H.R. 34th Reg. Sess., at 3124 (Fla. 2002)(emphasis added). The Senate’s
legislative history contains an identical statement. Journal Sen., 34th Reg. Sess., at
1640 (Fla. 2002).
23
election.83 The next day, the Attorney General of Florida likewise explained to the
Defendant that it was violating the law, raising the specter of criminal prosecution
for the failure of County officials to acquire the machines.84 Paul Craft, Chief of
shares the same understanding of the law.85 And recently, a panel of this Court
noted that “[t]he City [of Jacksonville, Florida] has conceded that Florida law
requires that at least one disabled-compliant voting machine be in each precinct for
strained interpretation of the statute that neither party had even proffered. Instead
of referring to the statute at issue, Florida Statute Section 101.56062, the district
court referred to Florida Statute Section 101.5602, the old “Purposes” section from
the original 1973 enactment of Florida=s Electronic Voting Systems Act (“EVSA”),
82
RE-55-56, ¶ 13.
83
RE-56 at ¶ 14.
84
RE-143-144.
85
RE-198-199, ¶ 7. Mr. Craft refers in his declaration to certain municipal and
mail ballot elections being excepted from the voting machine provision. Those
exceptions have to do with municipal bond elections and have no relevance to this
case. Fla. Stat. § 100.311.
86
Am. Ass’n of People with Disabilities v. Hood, No. 04-1156-AA (11th Cir. Aug.
8, 2005) at p. 3. See Addendum.
24
which says that the EVSA “authorize[s] the use of electronic . . . voting systems.”87
From that, the district court reasoned that Section 101.56062 only applies if the
County has purchased electronic voting machines.88 Because the Judge mistakenly
believed that Volusia County’s optical scan system was not an electronic system,
The lower court’s conclusion is wrong on several counts. First, the optical
scan system used in Volusia County is an electronic system.89 Thus, if the court
were correct that Section 101.56062 applies only to counties with electronic
systems, it is applicable. It may be that the court thought that only touchscreen
Second, the trial court appeared to believe that the section authorizing
counties to acquire electronic voting systems was enacted so that Florida would
comply with the Help America Vote Act of 2002 (“HAVA”).90 But the Florida
87
Fla. Stat. § 101.5602.
88
RE-236.
89
“‘Electronic or electromechanical voting system’ means a system of casting
votes by use of voting devices or marking devices and counting ballots by
employing automatic tabulating equipment or data processing equipment, and the
term includes touchscreen systems.” Fla. Stat. § 101.5603(4). Volusia County’s
system automatically scans voters’ ballots, tabulates the results and transmits them
to the main computer that compiles the results. RE-53 ¶ 3.
90
RE-233.
25
statute on which the district court relies, authorizing the purchase of electronic
machines was enacted in 1973 and HAVA was not enacted until 2002.
Third, the trial court ignored the plain language of Section 101.56062(2),
mandates that voting systems “must include” voting machines that are accessible to
the blind in each precinct. The district court's holding cannot be reconciled to the
statute.
that the effective date must be HAVA’s effective date of January 1, 2006, claiming
that funding for accessible voting machines continues until that time.91 But the
effect of the effective date is to make the statute applicable to elections occurring
after July 1, 2005. Because not every county is going to have an election between
July 1, 2005 and January 1, 2006, it makes perfect sense for the Legislature to have
The County also attempts to rely on the State of Florida HAVA Plan to
argue that the mandate of Section 101.56062 is not triggered until HAVA=s
effective date. The County=s position fails for several reasons. First, this document
cannot trump the plain language of Section 101.56062, or its legislative history.
91
RE-157.
26
Second, that Plan was drafted in June 2004 before the effective date of Section
101.56062 was determined.92 Third, the County fails to mention that the Plan itself
indicates that the triggering date for accessible machines is the earlier of either the
effective date for HAVA or the effective date for Section 101.56062: AThe HAVA
Planning
Committee has recommended that the Florida Legislature take advantage of federal
funding and bring Florida into compliance and make Section 101.56062, Florida
Statutes, effective by January 1, 2006 or one year after general appropriations are
The trial court erred in concluding that Plaintiffs failed to show a substantial
likelihood of prevailing under Florida law. The language of the statute is clear, as
is the statutory history. Plaintiffs are entitled under Florida law to use accessible
The district court, having concluded that Plaintiffs could not show a
likelihood of prevailing on appeal, did not to address the remaining criteria for the
92
RE-165
93
Florida Dep’t. of State, State of Florida HAVA Plan Update at 53 (June 2004).
27
to address these issues as was the district court. To the extent the issues involve
Moreover, the Court should address these issues. Time is running out before
the next election, currently scheduled to occur on October 11, 2005. In these
circumstances, an appellate court may and should direct the district court to grant
The record clearly demonstrates that the Plaintiffs have satisfied the
remaining elements.
harm.95 The inability of a disabled voter to gain access to the polls, despite the
See Addendum.
94
Elrod v. Burns, 427, U.S. 347, 373-74, 96 S. Ct. 2673, 2690 (1976); see
generally 11A Charles Allen Wright, Arthur A. Miller & Mary Kay Kane, Federal
Practice and Procedure § 2948.1, at n.21 (2nd ed. 1995).
95
Charles H. Wesley Educ. Found., Inc. v. Cox, 408 F.3d 1349, 1355 (11th Cir.
2005); Johnson v. Mortham, 926 F. Supp. 1540, 1543 (N.D. Fla. 1996)
(three-judge panel).
28
harm.96 Moreover, Title II of the ADA explicitly authorizes injunctive relief for
independently and secretly with accessible touchscreen voting machines at the next
the machines. The money to purchase accessible voting machines already has been
provided by the State of Florida, and Volusia County will have to refund the
money if the County does not use it to purchase the accessible machines.98 While
Volusia County would apparently prefer to wait until such time, if ever, as
accessible machines provide a contemporaneous paper trail and are certified by the
State of Florida, that interest has not found expression in the standards for
Legislature. Both legislatures have been exceedingly specific as to the criteria for
96
Westchester Disabled on the Move v. County of Westchester, 346 F. Supp. 2d
473, 478 (S.D.N.Y. 2004).
97
42 U.S.C. § 12133.
98
Cf., Am. Assoc. of People with Disabilities v. Hood, No. 3:01cv1275, 2004
Westlaw 1041536 at *2 (M.D. Fla. Apr. 16, 2004) (staying order to purchase
accessible voting machines, pending appeal, because county would have to use its
29
voting machines to be used, respectively, in federal and state elections, but neither
accessible machines, has been embodied by the federal government and Florida as
the public interest.”100 Furthermore, as Congress declared in enacting the ADA, its
purpose is “to provide a clear and comprehensive national mandate for the
this case B where Congress and the Florida Legislature have enacted laws to give
disabled people full access to public voting facilities B an injunction that Volusia
CONCLUSION
For the reasons set forth herein, Appellants respectfully request that the
preliminary injunction requiring Volusia County to deploy during its next election
Respectfully submitted,
By:_________________________
Daniel F. Goldstein
31
CERTIFICATE OF COMPLIANCE
32(a)(7)(B) because this brief contains 5,678 words, excluding the parts of the
32(a)(5) and the type style requirements of Fed.R.App.P. 32(a)(6) because this
brief has been prepared in proportionally spaced typeface using Microsoft Word
32
CERTIFICATE OF SERVICE
I hereby certify that copies of the foregoing Brief of Appellants were served
by E-mail and Federal Express this 12th day of August, 2005, upon:
Daniel Eckert
County Attorney’s Office
123 W. Indiana Ave.
Deland, FL 32720-4615
_______________________
Martin H. Schreiber II
33