Congressman Robert WEXLER, Appellant, v. Theresa LEPORE, Supervisor of Elections for Palm Beach County, Florida, and Glenda E. Hood, Secretary of State, Appellees.
No. 4D04-918.
District Court of Appeal of Florida, Fourth District.
August 6, 2004.
878 So.2d 1276 (2004)
Charles J. Crist, Jr., Attorney General, and George Waas, Special Counsel, Tallahassee, for appellee Glenda E. Hood.
Gregory J. Shibley, North Palm Beach, and Randall C. Marshall, ACLU Foundation of Florida, Inc., Miami, for Amicus Curiae, American Civil Liberties Union of Florida, Inc.
PER CURIAM.
Congressman Robert Wexler appeals the dismissal of his complaint seeking declaratory and injunctive relief. The Congressman filed suit against Palm Beach County Supervisor of Elections Theresa Lepore and Secretary of State Glenda E. Hood,1 as a candidate for re-election and a registered voter in Palm Beach County. While we conclude Congressman Wexler did have standing, we nevertheless affirm the dismissal of the complaint.
Facts
The complaint alleged the following. The defendants share a statutory duty to ensure that each Palm Beach County citizen‘s vote is accurately recorded and reported, including any recount.
As to his claim for injunctive relief, Congressman Wexler alleged the acts and omissions of the defendants posed an immediate threat to the rights of voters and political candidates and there was no adequate remedy at law. He requested the court require the defendants to immediately take the necessary steps to correct the statutory non-compliance prior to the next election.
In dismissing the complaint with prejudice, the trial court held Congressman Wexler lacked standing to bring the suit. The court further held he failed to state a cause of action for injunctive relief and that any attempt to amend the complaint would be futile. The court found Secretary Hood‘s motion to change venue to Leon County was moot.
Florida‘s Statutory Voting System Framework2
Following the 2000 elections, the Florida Legislature enacted “The Electronic Voting Systems Act,” which authorized the use of electronic and electromechanical voting systems. See
The Department of State is responsible for adopting rules establishing minimum standards for hardware and software for electronic voting systems and reviewing such rules each odd-numbered year. See
Florida‘s recount procedures are governed by
The legislature purposely distinguished the method for machine recounts in jurisdictions using electronic systems and those using paper ballots. In counties with paper ballot systems, the recount consists of putting each ballot through the automatic tabulating equipment and determining whether the returns correctly reflect the votes cast. See
The second instance in which a recount occurs is when the margin of victory is one-quarter of a percent or less. See
Pursuant to the mandate of
When a manual recount is ordered and touchscreen ballots are used, no manual recount of undervotes or overvotes cast on a touchscreen system shall be conducted since these machines do not allow a voter to cast an overvote and since a review of undervotes cannot result in a determination of voter intent as required by Section 102.166(5), F.S. In this case, the results of the machine recount conducted pursuant to (5)(c) shall be the official totals for the touchscreen ballots.
Two types of electronic voting systems are certified for use in Florida, the optical scan and the touchscreen. Palm Beach County utilizes the touchscreen system. With a touchscreen system, a voter does not mark a paper ballot, but instead makes selections on a computer screen. The system gives the voter the opportunity to review the selections and it is only after the voter indicates approval that the selections are recorded in the machine‘s electronic memory. See Wexler v. Lepore, 319 F.Supp.2d 1354 (S.D.Fla.2004).
These are the facts. The issues involve standing, the sufficiency of the Congressman‘s claims for declaratory and injunctive
Standing
Whether a party has standing to bring an action is a question of law to be reviewed de novo. See Alachua County v. Scharps, 855 So.2d 195, 198 (Fla. 1st DCA 2003). In conducting the review, this court accepts the allegations in the complaint as true. See Hospice of Palm Beach County, Inc. v. State, Agency for Healthcare Admin., 876 So.2d 4 (Fla. 1st DCA 2004). The party must allege that he has suffered or will suffer a special injury. See Scharps, 855 So.2d at 198. Thus, the court must determine whether the plaintiff has a sufficient interest at stake in the controversy which will be affected by the outcome of the litigation. See id.
Both Secretary Hood and Supervisor Lepore argue that because Congressman Wexler faces no opposition in the upcoming election, he has been effectively re-elected, and has no standing as a candidate. We reject that argument. We hold that Congressman Wexler has standing to bring this action in his capacity as a candidate seeking re-election.
His lack of opposition does not alter the fact that he is, and likely will be, a candidate for re-election to public office. He has an interest in the problem or controversy concerning the current manual recount process. It is a problem which is capable of repetition, yet may evade review. See Holly v. Auld, 450 So.2d 217, 218 (Fla.1984) (mootness does not destroy an appellate court‘s jurisdiction when questions raised are of great public importance or are likely to recur); see also Kelley v. Rice, 800 So.2d 247, 250 (Fla. 2d DCA 2001) (mootness does not destroy a court‘s jurisdiction if the question raised is of great public importance or if the error is capable of repetition yet evading review). Because we find standing on this basis, we decline to address the remaining standing issues.
Declaratory Relief
The trial court dismissed the complaint on the basis of standing; it did not expressly determine whether Congressman Wexler stated a cause of action for declaratory relief. The court, however, indicated any attempt to amend the complaint to raise a cognizable constitutional claim would be futile. In essence, the court implied a failure to state a cause of action for declaratory relief. As the election rapidly approaches, the issue of failure to state a cause of action must be addressed.
In essence, Congressman Wexler alleged
With regard to a recount,
Despite this difference,
The Legislature delegated authority to the Secretary of State to adopt rules for the certification of each electronic voting system. See
The Congressman requested a declaratory judgment that the Secretary and Supervisor of Elections were in violation of their statutory duties. The Secretary‘s duty was to adopt regulations pursuant to the statutes regarding voting methods, including approval of voting systems, and recounting votes. The Secretary has now done that. Whether these rules and regulations constitute an invalid exercise of delegated legislative authority is first subject to administrative challenge. See
Injunctive Relief
The trial court also held Congressman Wexler failed to state a cause of action for injunctive relief. The court held that under
To state a cause of action for injunctive relief, the moving party is required to prove the following: “(1) he will suffer irreparable harm unless the status quo is maintained; (2) he has no adequate remedy at law; (3) he has a clear legal right to the relief granted; and (4) a temporary injunction will serve the public interest.” See generally Duryea v. Slater, 677 So.2d 79, 81 (Fla. 2d DCA 1996). The movant must also establish a substantial likelihood of success on the merits. See In re Guardianship of Schiavo, 792 So.2d 551, 562 (Fla. 2d DCA 2001).
The court correctly held Congressman Wexler failed to show he had a clear legal
Congressman Wexler also failed to allege a “palpable violation” sufficient to seek redress in a court of equity. In Joughin v. Parks, 107 Fla. 833, 143 So. 145 (1932), the Florida Supreme Court held that:
An injunction will not issue for the purpose of restraining the holding of an election, or of directing or controlling the mode in which, or of determining the rules of law in pursuance of which, an election shall be held, because the holding and conduct of an election during its progress is a political matter with which courts of equity have nothing to do.
Id. at 145. Only where, prior to an election, a palpable violation of the registration or election laws is about to take place, is an injunction an appropriate remedy. See id.
The rule is well-settled that equity will neither determine questions involving rights that are purely political nor will it undertake the protections of such rights by the writ of injunction. See Joughin v. Parks, 107 Fla. 833, 147 So. 273, 273 (1933). Since neither defendant has violated any statutorily-mandated duty, there is no palpable threat at issue.
Conclusion
We recognize the right to vote is fundamental. However, there is no guarantee of a perfect voting system. See Weber v. Shelley, 347 F.3d 1101, 1105 (9th Cir.2003). States are entitled to broad leeway in enacting reasonable, even-handed legislation to ensure that elections are carried out in a fair and orderly manner. See id.
As in Weber, we cannot say the use of a paperless voting system severely restricts the right to vote in the State of Florida. “No balloting system is perfect. Traditional paper ballots, as became evident during the 2000 presidential election, are prone to overvotes, undervotes, ‘hanging chads,’ and other mechanical and human errors that may thwart voter intent. See generally Bush v. Gore, 531 U.S. 98, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000).” Id. at 1106.
By enacting the Electronic Voting Rights Act, the Legislature allowed for the certification of a touchscreen voting system. See
AFFIRMED.
WARNER, SHAHOOD and MAY, JJ., concur.