AMENDED APPENDIX TO APPELLANT’S INITIAL BRIEF

01069577-1

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

SUSAN BUCHER, solely in her capacity as Supervisor of Elections of Palm Beach County, Florida

Appellant/Petitioner, v.

RICK SCOTT FOR SENATE,

Appellee/Respondent. /

Case No.: 4D18-3319

AMENDED APPENDIX TO APPELLANT’S INITIAL BRIEF

JENNIFER R. COWAN Florida Bar No.0038081 Primary Email: [email protected] Email: [email protected] Email: [email protected], Longman & Walker, P.A. 100 2nd Avenue South, Suite 501-S St. Petersburg, FL 33701 Telephone: (727) 245-0820

ANDREW J. BAUMANN Florida Bar No. 0070610 Primary Email: [email protected] Email: [email protected] Secondary Email: [email protected] B. SANTANA Florida Bar No. 107677 Primary Email: [email protected] Email: [email protected]

000001

RE

CE

IVE

D, 1

1/27

/201

8 12

:55

PM, C

lerk

, Fou

rth

Dis

tric

t Cou

rt o

f A

ppea

l

01069577-1

Lewis, Longman & Walker, P.A. 515 North Flagler Drive, Suite 1500 West Palm Beach, Florida 33401 Telephone: (561) 640-0820 Facsimile: (561) 640-8202

NATALIE A. KATO Florida Bar No. 87256 Primary email: [email protected] email: [email protected], Longman & Walker, P.A. 315 South Calhoun Street, Suite 830 Tallahassee, FL 32202 Telephone: (850) 222-5702 Counsel for Appellant

000002

01069577-1

AMENDED APPENDIX TO APPELLANT’S INITIAL BRIEF

No. Description Bates Numbers

1. Verified Complaint for Declaratory and Injunctive Relief, dated November 8, 2018

000006-0000011

2. Plaintiff’s Verified Emergency Motion for a Temporary Injunction and Supporting Memorandum of Law, dated November 8, 2018

00000012-000022

3. Notice of Hearing for Emergency Motion for Temporary Injunction and Complaint for Declaratory & Injunctive Relief, dated November 8, 2018.

000023-000024

4. Notice of Filing Hearing Transcript of November 9, 2018, dated November 16, 2018

000025-000084

5. Order on Plaintiff’s Verified Emergency Motion for a Temporary Injunction, dated November 9, 2018

000085-000086

6. Emergency Motion for Reconsideration, Status Conference, and Emergency Stay, dated November 9, 2018

000087-000092

7. Notice of Filing Hearing Transcript of November 10, 2018, dated November 13, 2018

000093-000144

8. Order Setting Hearing on Defendant’s Emergency Motion for Reconsideration, Status Conference, and Emergency Stay, dated November 9, 2018

000145-000146

9. Plaintiff, Rick Scott For Senate’s Verified Response in Opposition to Defendant’s Motion for Reconsideration, Status Conference, and Emergency Stay, dated November 9, 2018

000147-000171

10. Order on Emergency Motion for Reconsideration, Status Conference, and Emergency Stay, dated November 10, 2018

000172-000174

000003

01069577-1

11. Notice of Appeal, dated November 10, 2018 000175-000181

12. Amended Notice of Appeal, dated November 13, 2018

000182-000188

13. Rule 1S-2.027, Florida Administrative Code 000189-000203

000004

01069577-1

CERTIFICATE OF COMPLIANCE

Counsel for Appellee, SUSAN BUCHER, in her capacity as SUPERVISOR OF

ELECTIONS for Palm Beach County, FL, certifies that this pleading has been prepared in

Times New Roman, 14-point font, in compliance with the requirements set forth in Florida

Rule of Appellate Procedure 9.210(a)(2).

/s/ Jennifer R. Cowan JENNIFER R. COWAN, ESQUIRE Florida Bar No.: 0038081

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was served via

electronic mail to: Aliette D. Rodz, Esq., Shutts & Bowen, LLP, 200 S. Biscayne

Boulevard, Suite 4100, Miami, FL 33131, [email protected], George T.

Levesque, Esq., Leslie Arsenault Metz, Esq., Jason Zimmerman, Esq. and Jeff Aaron,

Esq., GrayRobinson, P.A., 515 North Flagler Drive, Suite 1425, West Palm Beach, FL

33401, [email protected], [email protected],

[email protected], and [email protected], Attorneys for

Appellee, on this 27th day of November, 2018.

/s/ Jennifer R. Cowan JENNIFER R. COWAN, ESQUIRE Florida Bar No.: 0038081

000005

1

IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT

IN AND FOR PALM BEACH COUNTY, FLORIDA


Plaintiff,

v.

SUSAN BUCHER, solely in her capacity as

Supervisor of Elections of Palm Beach

County, Florida,

Defendant.

CASE NO.

JUDGE

Verified Complaint

VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Plaintiff, Rick Scott for Senate (“Plaintiff”), through undersigned counsel, sues Susan

Bucher, solely in her capacity as the Supervisor of Elections of Palm Beach County, Florida

(“Defendant”), and alleges:

JURISDICTION AND VENUE

1. This is a lawsuit for declaratory and injunctive relief under § 86.011, Fla. Stat.

2. Venue is proper in Palm Beach County, Florida because Defendant maintains her

principal places of business in Palm Beach County and because all or part of the claim for relief

at issue in this litigation arose in Palm Beach County.

PARTIES

3. Plaintiff is a federal campaign committee authorized to conduct political activity

throughout the state of Florida.

4. Defendant is responsible for overseeing the conduct of elections in Palm Beach

000006

2

County, including but not limited to the conduct of election personnel throughout the county in

the post-election process.

5. Plaintiff is supporting candidates to be voted upon in the election in Palm Beach

County and throughout Florida. Plaintiff’s interests in enforcement of the election laws and

ensuring a fair election are adversely affected by the conduct complained of below.

6. All conditions precedent to the filing of this lawsuit have been performed, have

been waived, or are otherwise excused.

COUNT I – REQUEST FOR DECLARATORY AND INJUNCTIVE RELIEF AGAINST

DEFENDANT’S VIOLATION OF § 101.5614(4)(a), FLA. STAT. REGARDING THE

PROCESSING OF PHYSICALLY DAMAGED, “OVERVOTED,” AND

“UNDERVOTED” ABSENTEE BALLOTS

7. Plaintiff adopts and realleges the allegations of paragraphs 1–6 above.

8. Section 101.5614(4)(a), Fla. Stat., the provision of the Florida Election Code at

issue in this lawsuit, governs the processing of physically damaged, “overvoted,” and

“undervoted” absentee ballots. That provision states, in relevant part (emphasis added):

If any vote-by-mail ballot is physically damaged so that it cannot

properly be counted by the automatic tabulating equipment, a true

duplicate copy shall be made of the damaged ballot in the

presence of witnesses and substituted for the damaged ballot.

Likewise, a duplicate ballot shall be made of a vote-by-mail ballot

containing an overvoted race or a marked vote-by-mail ballot in

which every race is undervoted which shall include all valid votes

as determined by the canvassing board based on rules adopted

by the division pursuant to s. 102.166(4).

9. The language of § 101.5614(4)(a) is uncomplicated and unambiguous.

10. Regarding the processing of physically damaged absentee ballots,

§ 101.5614(4)(a) requires the Supervisor of Elections to make true duplicate copies of all such

damaged ballots “in the presence of witnesses.”

11. Regarding the processing of “overvoted” and “undervoted” absentee ballots,

000007

3

§ 101.5614(4)(a) provides that only the Canvassing Board—not the Supervisor of Elections, or

any other entity—is authorized to determine “all valid votes . . . based upon rules adopted by the

division . . .” No provision of the Florida Election Code (or any other legal authority) confers

upon the Supervisor of Elections (or any other entity) the power to determine which “overvoted”

or “undervoted” absentee ballots contain “valid votes,” within the meaning of § 101.5614(4)(a).

That power belongs exclusively to the Canvassing Board.

12. Defendant is presently violating the mandates of § 101.5614(4)(a) in two respects.

13. First, on November 8, 2018, Defendant refused to allow Plaintiff’s representatives

(or the representatives of any other political party) to properly witness Defendant’s processing

and duplication of physically damaged absentee ballots.

14. In fact, Plaintiff’s representatives have only been allowed outside of the proximity

required to properly witness Defendant’s staff’s review and processing of the ballots. Defendant

has effectively precluded Plaintiff’s representatives from making any substantive observation of

the activities of Defendant’s staff, in direct violation of § 101.5614(4)(a).

15. The statute requires Defendant to make true duplicate copies of all physically

damaged absentee ballots “in the presence of witnesses.” § 101.5614(4)(a). As of the filing of

this lawsuit, Plaintiff’s representatives have been prohibited from witnessing and/or actually

overseeing the duplication of physically damaged absentee ballots. Plaintiff’s representatives

have not even been allowed to confirm Defendant’s compliance with the statute’s procedure for

processing physically damaged absentee ballots.

16. Despite having thousands of ballots to review, Defendant provided Plaintiff’s

representatives with a very quick partial walk-through of the area and then did not allow any

further access in reasonable proximity to Defendant’s staff. Moreover, as of mid-afternoon,

000008

4

upon information and belief Plaintiff learned that there were roughly 1500 faxed-in military

ballots and to the extent that these need to be converted to a ballot, the same issues noted above

took place.

17. Second, and even more alarmingly, Defendant has failed to allow the Palm Beach

County Canvassing Board to execute its statutory duty to determine “all valid votes” from

“overvoted” and “undervoted” absentee ballots. Instead, Defendant—in violation of the express

language of § 101.5614(4)(a)—has made determinations regarding voter intent herself (through

her staff), and has withheld a portion of “overvoted” and “undervoted” absentee ballots from the

Palm Beach County Canvassing Board, which the Board will not be provided for review

tomorrow. As prescribed in § 101.5614(4)(a), only the Palm Beach County Canvassing Board—

not Defendant, or any other entity—is empowered by law to determine “all valid votes” from

“overvoted” and “undervoted” absentee ballots.

18. Plaintiff notified Defendant about the violations of § 101.5614(4)(a), but as of the

filing of this lawsuit, Defendant has failed to cure such violations.

19. There is a present, bona fide controversy over whether Defendant is presently

violating the mandates of § 101.5614(4)(a).

20. Plaintiff’s, its candidates’, and its voters’ rights will be violated if the Election

Code is not followed, as Defendant’s ongoing violations of § 101.5614(4)(a) jeopardizes the

integrity of, and may alter the outcome of, the 2018 general election.

21. Plaintiff has no adequate remedy at law.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays for judgment as follows:

a. A declaratory judgment that Defendant’s refusal to allow Plaintiff’s

representatives to witness Defendant’s processing and duplication of physically damaged

000009

5

absentee ballots violates § 101.5614(4)(a), Fla. Stat.

b. A declaratory judgment that Defendant’s, rather than the Palm Beach County

Canvassing Board’s, determination of “all valid votes” from “overvoted” and “undervoted”


c. A temporary and permanent injunction ordering Defendant to cease violating

§ 101.5614(4)(a), Fla. Stat., and ordering Defendant (i) to have the Supervisor’s staff review the

duplicate ballots together with the original damaged ballots in the presence of the Plaintiff and

any other witnesses, and if there is an objection by the witnesses, require the objected to

duplicate ballots in question to be set aside for immediate review by the Canvassing Board once

the review process is complete of all physically damaged absentee ballots and duplicate ballots,

consistent with the procedure codified in § 101.5614(4)(a); and (ii) to allow the Palm Beach

County Canvassing Board (and only that entity) to determine valid votes from “overvoted” and

“undervoted” absentee ballots, consistent with the procedure codified in § 101.5614(4)(a).

d. The costs of this lawsuit, together with reasonable attorney’s fees to the extent

provided by law; and

e. Such further relief as the Court deems proper.

VERIFICATION

I hereby swear or affirm under penalty of perjury that the foregoing is true and correct to

the best of my knowledge.

/s/ Aliette D. Rodz

Counsel for the Plaintiff

000010

6

Dated: November 8, 2018 Respectfully submitted,

/s/ Aliette D. Rodz

Aliette D. Rodz, Esq.

Florida Bar No. 0173592

Email: [email protected]

SHUTTS & BOWEN LLP

200 S. Biscayne Blvd., Suite 4100

Miami, FL 33131

Office: (305) 347-7342

Facsimile: (305) 347-7742

-and-

George T. Levesque, Esq.



Leslie Arsenault Metz, Esq.



Jason Zimmerman, Esq.


Email: jason.zimmerman@gray-

robinson.com

Jeff Aaron, Esq.



GRAYROBINSON, P.A.

515 N. Flagler Dr., Suite 1425

West Palm Beach, FL 33401

Office: (561) 268-5727

Facsimile: (561) 886-4101

Attorneys for Plaintiff

000011

1




Plaintiff,

v.



County, Florida,

Defendant.

CASE NO.

JUDGE

PLAINTIFF'S VERIFIED EMERGENCY MOTION FOR A TEMPORARY

INJUNCTION AND SUPPORTING MEMORANDUM OF LAW

Plaintiff, Rick Scott for Senate (“Plaintiff”), through undersigned counsel, respectfully

moves this Court pursuant to Fla. R. Civ. P. 1.610(a) for a Temporary Injunction, ordering

Defendant Susan Bucher, solely in her capacity as Supervisor of Elections of Palm Beach

County, Florida (“Defendant”), to cease violating § 101.5614(4)(a), Fla. Stat., and ordering

Defendant: (i) to have the Supervisor’s staff review the duplicate ballot together with the original

damaged ballot in the presence of the Plaintiff and any other witnesses, and if there is an

objection by the witnesses, require the objected to duplicate ballots in question to be set aside for

immediate review by the Canvassing Board once the review process is complete of all physically

damaged absentee ballots and duplicate ballots, consistent with the procedure codified in

§ 101.5614(4)(a); and (ii) to allow the Palm Beach County Canvassing Board (and only that

entity) to determine valid votes from “overvoted” and “undervoted” absentee ballots, consistent

with the procedure codified in § 101.5614(4)(a).

000012

2

Defendant’s failure to follow the procedures codified in § 101.5614(4)(a) has inflicted,

and continues to inflict, irreparable injury upon Plaintiff. Respectfully, this Court should issue

immediate relief to protect both the Plaintiff and the integrity of the 2018 general election.

As attested in the attached Certificate of Service, Plaintiff concurrently is serving

Defendant with the Verified Complaint and this Motion by facsimile and e-mail.


/s/ Aliette D. Rodz




SHUTTS & BOWEN LLP


Miami, FL 33131

Office: (305) 347-7342

Facsimile: (305) 347-7742

-and-










robinson.com

Jeff Aaron, Esq.



GRAYROBINSON, P.A.



Office: (561) 268-5727

Facsimile: (561) 886-4101


000013

3

MEMORANDUM OF LAW IN SUPPORT OF

EMERGENCY MOTION FOR A TEMPORARY INJUNCTION

Plaintiff respectfully requests that this Court immediately issue a Temporary Injunction,

ordering Defendant to cease violating § 101.5614(4)(a), Fla. Stat., and ordering Defendant (i) to

make true duplicate copies, in the presence of witnesses, of all physically damaged absentee

ballots, consistent with the procedure codified in § 101.5614(4)(a); and (ii) to allow the Palm

Beach County Canvassing Board (and only that entity) to determine valid votes from

“overvoted” and “undervoted” absentee ballots, consistent with the procedure codified in

§ 101.5614(4)(a). In support of this Motion, Plaintiff states:

I. FLORIDA LAW GOVERNING THE PROCESSING OF PHYSICALLY DAMAGED,

“OVERVOTED,” AND “UNDERVOTED” ABSENTEE BALLOTS

Section 101.5614(4)(a), Fla. Stat., the provision of the Florida Election Code at issue

here, governs the processing of physically damaged, “overvoted,” and “undervoted” absentee

ballots. That provision states, in relevant part (emphasis added):









by the division pursuant to s. 102.166(4).

The language of § 101.5614(4)(a) is uncomplicated and unambiguous. First, regarding the

processing of physically damaged absentee ballots, § 101.5614(4)(a) requires the Supervisor of

Elections to make true duplicate copies of all such damaged ballots in the presence of

witnesses. Second, regarding the processing of “overvoted” and “undervoted” ballots,

§ 101.5614(4)(a) is clear that only the Canvassing Board—not the Supervisor of Elections—is

000014

4

authorized to determine “all valid votes . . . based upon rules adopted by the division . . . .” No

provision of Florida’s Election Code (or any other authority) confers upon the Supervisor of

Elections the power to determine which “overvoted” and “undervoted” absentee ballots contain

“valid votes,” within the meaning of § 101.5614(4)(a). That power, as prescribed in

§ 101.5614(4)(a), belongs exclusively to the Canvassing Board.

II. OVERVIEW OF DEFENDANT’S UNLAWFUL CONDUCT

As explained in the Verified Complaint at ¶¶ 12–18, Defendant is presently violating the

mandates of § 101.5614(4)(a) by failing to follow the procedures for processing physically

damaged, “overvoted,” and “undervoted” absentee ballots.

Specifically, Defendant has refused to allow Plaintiff’s representatives (or the

representatives of any political party) to witness Defendant’s processing and duplication of

physically damaged absentee ballots. Verified Complaint at ¶¶ 13–16. In fact, the Plaintiff has

only been allowed outside of the proximity required to properly witness the staff’s review and

processing of the ballots. Id. at ¶ 14. Instead, Defendant has essentially precluded the Plaintiff

from making any substantive observation of the activities of the staff in direct violation of

§ 101.5614(4)(a). Id. The statute requires Defendant to make true duplicate copies of all

physically damaged ballots “in the presence of witnesses” and, as of the filing of this Motion,

Plaintiff’s representatives have been prohibited from witnessing and/or actually overseeing the

duplication of ballots. Id. at ¶ 15. Plaintiff has not even been allowed to confirm Defendant’s

compliance with the statute’s procedure for processing such damaged ballots. Id. Despite having

thousands of ballots to review, the Supervisor provided the Plaintiff with a very quick partial

walk-through of the area and then did not allow any further access in reasonable proximity to the

staff. Id. at ¶ 16. Moreover, as of mid-afternoon, upon information and belief Plaintiff learned

000015

5

that there were roughly 1500 faxed in military ballots and to the extent that these need to be

converted to a duplicate ballot, the same issues noted above took place. Id.

Even more alarmingly, regarding the processing of “overvoted” and “undervoted”

absentee ballots, Defendant has failed to allow the Palm Beach County Canvassing Board to

execute its statutory duty to determine “all valid votes” from such irregular ballots. Id. at ¶ 17.

Instead, Defendant--in violation of the express language of § 101.5614(4)(a)--has made

determinations regarding voter intent herself, and has withheld a portion of “overvoted” and

“undervoted” absentee ballots from the Palm Beach County Canvassing Board—to which they

will not review tomorrow. Id. As explained above, the Palm Beach County Canvassing Board--

not Defendant--is the only entity empowered by law to determine “all valid votes” from

“overvoted” and “undervoted” absentee ballots. See § 101.5614(4)(a).

III. MEMORANDUM OF LAW: PLAINTIFF SATISFIES THE REQUIREMENTS FOR

OBTAINING A TEMPORARY INJUNCTION

A. The Standard for Obtaining Injunctive Relief

This Court should issue an emergency temporary injunction where necessary to avoid

immediate and irreparable injury to Plaintiff. A temporary injunction may be granted without

notice upon a showing, by affidavit or verified pleading, that “immediate and irreparable injury,

loss, or damage will result to the movant before the adverse party can be heard in opposition[.]”

Fla. R. Civ. P. 1.610(a)(1)(A).1 An applicant for a temporary injunction also must certify to the

1 Rule 1.610(a)(1)(A)–(B) provides: “A temporary injunction may be granted without written or

oral notice to the adverse party or his attorney only if: (A) it appears from the specific facts

shown by affidavit or verified pleading that immediate and irreparable injury, loss, or damage

will result to the movant before the adverse party can be heard in opposition; and (B) the

movant’s attorney certifies in writing any efforts that have been made to give notice and the

reasons why notice should not be required.”

000016

6

Court the efforts, if any, “that have been made to give notice and the reasons why notice should

not be required.” Rule 1.610(a)(1)(B).

The standard for granting a temporary injunction under Rule 1.610 is well established.

The Court should examine four factors, including whether: (1) there is a substantial likelihood

that the movant will succeed on the merits; (2) the movant will suffer irreparable injury if the

injunction is not granted; (3) there is no adequate remedy at law; and (4) the public interest will

be served by the temporary injunction. See U.S. 1 Office Corp. v. Falls Home Furnishings, Inc.,

655 So. 2d 209, 210 (Fla. 3d DCA 1995) (affirming application for a temporary injunction where

plaintiff made showing of all four factors); see also Zuckerman v. Professional Writers of

Florida, Inc., 398 So. 2d 870, 871 (Fla. 4th DCA 1981) (affirming temporary restraining order

and requiring bond).

In the context of requests for injunctive relief in the election setting, the Supreme Court

of the United States has stated that “[i]n awarding or withholding immediate relief, a court is

entitled to and should consider the proximity of a forthcoming election and the mechanics and

complexities of election laws, and should act and rely upon general equitable principles.”

Reynolds v. Sims, 377 U.S. 533, 585 (1964). See also Purcell v. Gonzalez, 549 U.S. 1, 4 (2006)

(denying injunction to suspend voter identification rules “[g]iven the imminence of the election”

and the State’s “compelling interest in preserving the integrity of its election process” and

“preventing voter fraud” (internal quotation marks omitted)).

B. Plaintiff Satisfies the Four Requirements for Obtaining Injunctive Relief

Plaintiff satisfies the four requirements under Florida law for obtaining injunctive relief.

First, Plaintiff has established a strong likelihood of success on the merits. Section

101.5614 clearly and unambiguously instructs election officials to create a true duplicate copy of

000017

7

any damaged ballots in the presence of witnesses and substitute the damaged ballot. Likewise, a

duplicate ballot shall be made of a vote-by-mail ballot containing an overvoted race or a marked

vote-by-mail ballot in which every race is undervoted which shall include all valid votes as

determined by the canvassing board based on the rules adopted by the division pursuant to

s. 102.166(4). All duplicate ballots shall be clearly labeled “duplicate,” bear a serial number

which shall be recorded on the defective ballot, and be counted in lieu of the defective ballot.

See Florida Statute Section 101.5614 (4)(a). This has not been done. That provision contains no

exceptions and, indeed, the Division of Elections has already determined which ballots it will

show to the Canvassing Board and which it deems that it can correct itself without any witnesses

as required under Florida law.

Second, the Verified Complaint clearly shows that Plaintiff will suffer immediate and

irreparable injury absent the Court’s issuance of a temporary injunction. See Verified Complaint

at ¶¶ 12-18, and 20. The general election has taken place and these post-election matters are to

conclude by 5PM Eastern time today. Unless this Court grants immediate relief, Plaintiff’s

interest in ensuring a fair and orderly election, and Plaintiff’s members’ right to the same, will be

unduly burdened by the potentially unauthorized, duplicative votes or inaccurate votes cast by

electors at the affected precincts, where Defendant failed to comply with the requirement of

§ 101.5614. See Lantana v. Pelczynski, 303 So. 2d 326, 327 (Fla. 1974) (“There is no question

that the State has the power and the duty to insure free and fair elections.”); see also Siegel v.

LePore, 234 F.3d 1163, 1180 (11th Cir. 2000) (acknowledging that regulations governing the

electoral process may be necessary to protect a State’s “interest in conducting an orderly and fair

election”); Hunter v. Hamilton Cnty. Bd. of Elections, 2010 WL 4878957, at *4–*5 (S.D. Ohio

Nov. 22, 2010) (recognizing that a candidate may suffer irreparable harm if provisional ballots

000018

8

that should be counted are not counted); Fla. State Conference of N.A.A.C.P. v. Browning, 569 F.

Supp. 2d 1237, 1251 (denying plaintiffs’ request to enjoin Florida voter identification statute in

light of the State’s compelling interest “in fair and honest elections”). Moreover, as discussed

above, notice of the Verified Complaint and the instant Motion is being served

contemporaneously on Defendant. Due to the limited time remaining, however, respectfully this

Court should adjudicate this issue immediately. See United States v. Metro. Dade Cnty., 815 F.

Supp. 1475, 1478–79 (S.D. Fla. 1993) (“Where an impending election is imminent and the

election machinery is already in progress, a Court may take into account equitable considerations

when prescribing immediate relief.”) (citing Reynolds, 377 U.S. at 585); cf. Siegel, 234 F.3d at

1177 (suggesting that harm from an election that is “underway or imminent” is sufficient to

satisfy the “immediate and irreparable” standard).

Third, Plaintiff does not have an adequate remedy at law. As noted above, the election

took place and these post-election matters are presently underway, subjecting Plaintiff to

immediate and irreparable injury as a result of Defendant’s conduct. Defendant’s violation of

the § 101.5614 will increase the risk of improper and/or likely “double-counting” of voters’

ballots, which the courts cannot correct in the future, after the conclusion of the election.

Plaintiff’s only pathway to achieving relief is through this Court’s issuance of a temporary

injunction, which would at least help ameliorate Defendant’s election law violations.

Fourth and finally, there is a strong public interest in enforcing state election laws and

protecting the fundamental right to vote. See, e.g., Friedman v. Snipes, 345 F. Supp. 2d 1356,

1376 (acknowledging the State’s interest in regulating elections in order to avoid chaos, provide

order, and ensure a “fair and honest election”); Kennedy v. Riley, No. 2:05cv1100-MHT, 2007

WL 1461746, at *2 (finding that the public interest is served by protecting the “‘fundamental

000019

9

political right’” to vote) (quoting Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886)); see also Storer

v. Brown, 415 U.S. 724, 730 (1974) (recognizing that “as a practical matter, there must be a

substantial regulation of elections if they are going to be fair and honest and if some sort of

order, rather than chaos, is to accompany the democratic process.”). The public interest factor

thus weighs in favor of requiring election officials to strictly comply with the requirements of

§ 101.5614.

CONCLUSION

For these reasons, Plaintiff respectfully requests that this Court immediately issue a

Temporary Injunction ordering Defendant: (i) to have the Supervisor’s staff review the duplicate

ballots together with the original damaged ballots in the presence of the Plaintiff and any other

witnesses, and if there is an objection by the witnesses, require the objected to duplicate ballots

in question to be set aside for immediate review by the Canvassing Board once the review

process is complete of all physically damaged absentee ballots and duplicate ballots, consistent

with the procedure codified in § 101.5614(4)(a); and (ii) to allow the Palm Beach County

Canvassing Board (and only that entity) to determine valid votes from “overvoted” and

“undervoted” absentee ballots, consistent with the procedure codified in § 101.5614(4)(a).

Dated: November 8, 2018

000020

10

VERIFICATION

Under penalty of perjury, I declare that I have read the foregoing Emergency Motion, and

the facts alleged therein are true and correct to the best of my knowledge and belief.

Aliette D. Rodz

Counsel for Plaintiff


I hereby certify that on this 8th day of November, 2018, I did cause a true and correct

copy of the Verified Complaint, and the foregoing Plaintiff’s Emergency Motion for Temporary

Injunction and Supporting Memorandum of Law, to be served via facsimile and email upon:

Palm Beach County Supervisor of Elections

Susan Bucher, Supervisor

240 South Military Trail


P O Box 22309

West Palm Beach, FL 33416 -2309

Phone: 561-656-6200

Fax: 561-656-6287


Respectfully submitted,

/s/ Aliette D. Rodz





Miami, FL 33131

Office: (305) 347-7342

Facsimile: (305) 347-7742

-and-

000021

11










robinson.com

Jeff Aaron, Esq.



GRAYROBINSON, P.A.



Office: (561) 268-5727

Facsimile: (561) 886-4101


000022

1

IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA


Plaintiff,

v.

SUSAN BUCHER, solely in her capacity as Supervisor of Elections of Palm Beach County, Florida,

Defendant.

CASE NO. 50-2018-CA-014075

JUDGE Krista Marx

NOTICE OF HEARING

PLEASE TAKE NOTICE that a hearing has been set before the Honorable Krista Marx

at the Palm Beach County Courthouse, 205 N. Dixie Hwy, Room 9G, West Palm Beach, Florida

on Friday, November 9, 2018 at 10:30 a.m., or as soon as the matter may be heard upon:

EMERGENCY MOTION FOR TEMPORARY INJUNCTION AND COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF

Filing No. 80580741

PLEASE BE GOVERNED ACCORDINGLY.

If you are a person with a disability who needs any accommodation in order to participate in this proceeding, you are entitled, at no cost to you, to the provision of certain assistance. Please contact the Fifteen Judicial Circuit Court’s ADA Coordinator, 205 N. Dixie Hwy, West Palm Beach, FL, Telephone (561-355-4380); at least 7 days before your scheduled court appearance, or immediately upon receiving this notification if the time before the scheduled appearance is less than 7 days; if you are hearing or voice impaired, call 711.

Filing # 80589129 E-Filed 11/09/2018 09:35:32 AM

000023

Notice of Hearing Case No. 50-2018-CA-014075

2


/s/ Aliette D. Rodz Aliette D. Rodz, Esq. Florida Bar No. 0173592 Email: [email protected] SHUTTS & BOWEN LLP 200 S. Biscayne Blvd., Suite 4100 Miami, FL 33131 Office: (305) 347-7342 Facsimile: (305) 347-7742 -and- George T. Levesque, Esq. Florida Bar No. 555541 Email: [email protected] Leslie Arsenault Metz, Esq. Florida Bar No. 98865 Email: [email protected] Jason Zimmerman, Esq. Florida Bar No. 104392 Email: jason.zimmerman@grayrobinson.com Jeff Aaron, Esq. Florida Bar No. 123473 Email: [email protected] GRAYROBINSON, P.A. 515 N. Flagler Dr., Suite 1425 West Palm Beach, FL 33401 Office: (561) 268-5727 Facsimile: (561) 886-4101 Attorneys for Plaintiff

000024

01062425-1

IN THE CIRCUIT COURT FOR THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA


Plaintiff,

v .

SUSAN BUCHER, solely in her capacity as Supervisor of Elections of Palm Beach County, Florida

Defendant. ______________________________________/

CASE NO.: 502018-CA-014075XXXXMB DIVISION: KRISTA MARX

NOTICE OF FILING HEARING TRANSCRIPT OF NOVEMBER 9, 2018

Defendant, SUSAN BUCHER, solely in her capacity as Supervisor of Elections of Palm

Beach County, Florida, by and through her undersigned counsel, hereby gives notice of filing the

transcript of the hearing which took place before the Honorable Krista Marx on November 9, 2018.

Respectfully submitted this 16th day of November, 2018.

/s/ Andrew J. Baumann Andrew J. Baumann Florida Bar No. 0070610 Primary Email: [email protected] Email: [email protected] Secondary Email: [email protected] B. Santana Florida Bar No. 107677 Primary Email: [email protected] Email: [email protected], Longman & Walker, P.A. 515 North Flagler Drive, Suite 1500 West Palm Beach, Florida 33401 Telephone: (561) 640-0820 Facsimile: (561) 640-8202

000025

Rick Scott for Senate v. Susan Bucher, et al. Case No. 502018CA014075XXXXMB

Notice of Filing Hearing Transcript of November 9, 2018 Page 2 of 2

01062425-1 2

NATALIE A. KATO Florida Bar No. 87256 Primary email: [email protected] email: [email protected], Longman & Walker, P.A. 315 South Calhoun Street, Suite 830 Tallahassee, FL 32202 Telephone: (850) 222-5702 Counsel for Defendants, Susan Bucher


I HEREBY CERTIFY that a true and correct copy of the foregoing was served via the

Florida Court’s E-filing Portal on this 16th day of November, 2018 to:

Aliette D. Rodz, Esquire Shutts & Bowen LLP 200 S. Biscayne Blvd, Suite 4100 Miami, FL 33131 (305) 347-7342 Email: [email protected] for Plaintiff

George T. Levesque, Esquire Leslie Arsenault Metz, Esquire Jason Zimmerman, Esquire Jeff Aaron, Esquire GrayRobinson, P.A. 515 North Flagler Drive, Suite 1425 West Palm Beach, FL 33401 (561) 268-5727 Email: [email protected]@[email protected]@gray-robinson.com

/s/ Andrew J. Baumann Andrew J. Baumann Florida Bar No. 0070610

000026

1 IN THE CIRCUIT COURT OF THE 15th

JUDICIAL CIRCUIT IN AND FOR

2 PALM BEACH COUNTY, FLORIDA

3 CASE NO: 50-2018-CA-014075-XXXX-MB

4

5 RICK SCOTT FOR SENATE,

6 Plaintiff.

7 vs.

8 SUSAN BUCHER,

9 Defendant.

10 ______________________________________/

11 Proceedings had and taken place before the

12 Honorable Krista Marx, one of the Judges of said

13 Court, at the Palm Beach County Courthouse, 205

14 North Dixie Highway, Room 10E, West Palm Beach,

15 Florida, on Friday, the 9th day of November 2018,

16 commencing at the hour of 11:00 a.m., and being a

17 Hearing.

18

19

20

21

22

23

24

25

Page 1

Veritext Legal Solutions800-726-7007 305-376-8800

000027

1 APPEARANCES:

2 Appearing on behalf of the Plaintiff:

3 SHUTTS & BOWEN, LLP

200 South Biscayne Boulevard, Suite 4100

4 Miami, Florida 33131

305-358-6300

5 [email protected]

[email protected]

6 [email protected]

BY: ALIETTE RODZ, ESQUIRE

7 BY: BENJAMIN GIBSON, ESQUIRE

BY: JASON GONZALEZ, ESQUIRE

8

GRAY ROBINSON, P.A.

9 301 East Pine Street, Suite 1400

Orlando, Florida 32801

10 407-244-5669

[email protected]

11 BY: JASON ZIMMERMAN, ESQUIRE

12 Appearing on behalf of the Defendant:

13 LEWIS, LONGMAN & WALKER, P.A.

515 North Flagler Drive, Suite 1500

14 West Palm Beach, Florida 33401

561-640-0820

15 [email protected]

BY: ANDREW BAUMANN, ESQUIRE

16

17

18

19

20

21

22

23

24

25

Page 2


000028

1 (Thereupon, the following proceedings were

2 had:)

3 THE COURT: Rick Scott for Senate v. Susan --

4 is it Bucher?

5 MR. BAUMANN: Bucher, Your Honor.

6 THE COURT: Since you thought you were

7 skedaddling out of here, I didn't think you were

8 going to be on this.

9 MR. BAUMANN: I wasn't aware that we had a

10 hearing on this case as well.

11 THE COURT: Are you familiar with it?

12 MR. BAUMANN: We received a copy of a motion.

13 I haven't seen a complaint last night.

14 THE COURT: Last night, okay.

15 MS. RODZ: Good morning, Your Honor.

16 THE COURT: Good morning. And your name,

17 ma'am?

18 MS. RODZ: Aliette Rodz from Shutts & Bowen.

19 I'm here together with my co-counsel -- I thought

20 he was next to me, sorry.

21 MR. GIBSON: Good morning, Your Honor. Ben

22 Gibson.

23 MS. RODZ: With my colleague, Ben Gibson.

24 THE COURT: Good morning.

25 MS. RODZ: And Jason Gonzalez is here today

Page 3


000029

1 as well with me and co-counsel, Mr. Zimmerman.

2 THE COURT: Good morning.

3 MS. RODZ: Your Honor, we served the motion

4 last night together with the complaint in the same

5 email. We also sent it via fax. We also got a

6 call from the Court this morning with regard to

7 the notice of hearing to be sent out. We sent

8 that as well by email and by fax. We have been

9 diligently trying to obtain the summons to be able

10 to serve formally, but we certainly have reached

11 out.

12 THE COURT: There he is. Serve him.

13 MS. RODZ: That's right. If opposing counsel

14 has the motion, he has the complaint because they

15 were in the same email.

16 MR. BAUMANN: Actually, Your Honor, I

17 received the motion sort of through a third hand

18 back channel and I was looking for the complaint

19 and I'm not -- simply not seeing it here, but Your

20 Honor is free to proceed --

21 THE COURT: Do you have a copy? Do you want

22 five minutes to read the complaint?

23 MR. BAUMANN: Do you have a copy? Thank you.

24 MS. RODZ: Yes, of course. I'm handing my

25 colleague here a copy of the motion as well.

Page 4


000030

1 MR. BAUMANN: I've seen the motion and the

2 memorandum of law.

3 MS. RODZ: Well, if you want the copy, it's

4 yours.

5 MR. BAUMANN: Thank you.

6 THE COURT: They're very similar.

7 MS. RODZ: Yes.

8 THE COURT: Let me know whenever you're

9 ready.

10 MR. BAUMANN: For the record, Your Honor,

11 somebody else had forwarded me the motion because

12 they had seen it, I think, out of the press or

13 something. I was looking for the complaint.

14 It appears that the eService portal -- it was

15 served on Ms. Bucher herself, not upon me. So if

16 you can forgive me. I'm just seeing this for the

17 first time. Ms. Bucher didn't apparently see it

18 or advise me that she received a copy of it.

19 THE COURT: Okay.

20 MS. RODZ: We also called this morning, Your

21 Honor, just so the Court is aware to the

22 supervisor of election's offices seeking to

23 confirm and we also emailed and faxed it, but it's

24 quite simple. I'm happy to --

25 THE COURT: The scary thing of all, counsel,

Page 5


000031

1 is I think even if you weren't here, I could

2 proceed based on the affidavit.

3 MS. RODZ: Yes.

4 THE COURT: Due process.

5 MR. BAUMANN: Go ahead, Your Honor.

6 THE COURT: He says it with enthusiasm. We

7 can't hear that on the record, right, the

8 enthusiasm.

9 MS. RODZ: Your Honor, this is a pretty

10 straightforward matter. 101.5614, I'm going to

11 start with that. If any absentee ballot is

12 physically damaged so that it cannot properly be

13 counted by the automatic tabulating equipment --

14 and this is 5(a), Your Honor, a true duplicate

15 copy shall be made of the damaged ballot in the

16 presence of witnesses, this is the key fact at

17 issue here today, and substituted for the damaged

18 ballot.

19 Then the other issue, likewise, a duplicate

20 ballot shall be made of an absentee ballot

21 containing an overvoted race or a marked absentee

22 ballot in which every race is undervoted, which

23 shall include all valid votes as determined --

24 here is the key language again, as determined by

25 the canvassing board based on rules adopted by the

Page 6


000032

1 division pursuant to 102.166.

2 All duplicate ballots shall be clearly

3 labeled bear a serial number, which shall be

4 recorded on the defective ballot, and be counted

5 in lieu of the defective ballot.

6 We have had -- Shutts & Bowen has had on

7 behalf of the Republican Party and Rick Scott for

8 Senate, counsel 24/7 at the supervisor of

9 election's offices in order to do two things, be

10 able to bear witness in accordance with the

11 statute as to the duplicate copies being made.

12 That has not been afforded to us, which is a

13 direct violation of the statute.

14 With regard to that --

15 THE COURT: Okay.

16 MS. RODZ: Okay. Sure.

17 THE COURT: So let's take it one at a time.

18 MS. RODZ: Perfect.

19 THE COURT: So you allege in your affidavit

20 that when the supervisor of election is reviewing

21 the damaged ballots and making duplicate copies,

22 that there are not witnesses present.

23 Now, I'm sure you will agree with me that --

24 so this is a PAC that you represent today?

25 MS. RODZ: I represent -- yes, it's a

Page 7


000033

1 campaign, the federal campaign committee.

2 THE COURT: The federal campaign committee

3 for Rick Scott.

4 MS. RODZ: Correct.

5 THE COURT: So you would agree that when it

6 says there has to be witnesses to the duplicating

7 of these damaged ballots, that I certainly could

8 find no law that defines witnesses, could you?

9 MS. RODZ: No, Your Honor, but if there's a

10 witness, there's a witness. There is no witness.

11 THE COURT: How do you know?

12 MS. RODZ: Because we've been there 24/7. We

13 have been seeing -- so, for example, if I'm

14 standing, if I may, Your Honor?

15 If I'm standing here and you're writing over

16 there, I can't see what you're writing and that's

17 what's happening. I am standing right here and

18 you are right there doing all of these duplicates,

19 and I can't see if you are actually duplicating

20 the copy. That is the presence of a witness.

21 If I'm standing over you as I am with my dear

22 colleague here, if I'm standing over you and I'm

23 seeing it without touching anything, without

24 interrupting the process, I can confirm that you

25 are in fact in the presence of a witness properly

Page 8


000034

1 duplicating a copy.

2 THE COURT: Okay. So who --

3 MS. RODZ: It's not taking place.

4 THE COURT: My question was, there is, as far

5 as I know, we've all been moving quickly here, so

6 I completely agree with you that when these

7 damaged ballots are reviewed and duplicated, that

8 there needs to be witnesses present. Nothing

9 could be clearer than the statutory language,

10 unless it's in the presence of witnesses.

11 Certainly, from your affidavit, it appears

12 that you're alleging that that witness should be

13 you or should be you or should be somebody from

14 Rick Scott's campaign. The best I could do is

15 come up with this idea that witnesses means

16 members of the public. So my query to you is

17 this.

18 First of all, wouldn't you agree that you or

19 somebody on behalf of Rick Scott for Senate isn't

20 necessarily -- you're not required to be there.

21 It just has to be a witness. Would you agree with

22 that?

23 MS. RODZ: Yes, Your Honor. If you look at

24 the first page of my motion, I say in the presence

25 of the Plaintiff and any other witnesses.

Page 9


000035

1 THE COURT: Any other witnesses, so your

2 affidavit says that that is not happening. There

3 are no witnesses to --

4 MS. RODZ: That's correct.

5 THE COURT: The supervisor of elections,

6 herself, is just over there going oh, this one has

7 a water stain, I'm going to throw it away. This

8 one is bent, I'm going to throw it away, and

9 nobody is watching her do it.

10 Are you alleging that she's in some secret

11 room by herself reviewing these ballots, that

12 there's no witnesses?

13 MS. RODZ: Well, as I stated, as I tried to

14 demonstrate, and I don't know numbers. I'm not

15 good at math. I don't know how many feet there

16 are from you to me. Perhaps, the sheriff knows

17 that. I don't know, but I would tell you that

18 this is about the distance that we are dealing

19 with right now. So that's not of use.

20 THE COURT: What do you mean, where you --

21 MS. RODZ: Where I am standing to you or to

22 the court reporter --

23 THE COURT: And I'm the supervisor of

24 elections?

25 MS. RODZ: You are the staff on behalf of the

Page 10


000036

1 supervisor of elections doing the copy. So if

2 this is -- if I'm the supervisor of elections on

3 staff and I'm making the copy from this paper to

4 this paper, you cannot see from where you're

5 sitting what I'm doing. I could be saying hmm,

6 that's not democratic, I really don't like it. I

7 should put republican. Let's vote for this one.

8 I'm not saying that that's happening, but I can't

9 confirm one way or the other. So it's of great

10 concern.

11 Now, I will also caution the Court that the

12 statute does not say in the presence of a witness.

13 It says in the presence of, plural, witnesses.

14 THE COURT: Right, but can we agree that the

15 definition of witnesses is nowhere to be found in

16 the law? That it doesn't say those witnesses must

17 be a representative from everybody who is on the

18 ballot, for example? It doesn't say that.

19 MS. RODZ: It does not say that. However,

20 you have an interested party here before this

21 Court seeking to be the witness and inviting the

22 democratic party to also join with us as

23 witnesses.

24 What we want is a fair and accurate vote as

25 the legislature has required, as the constitution

Page 11


000037

1 has required, and this is not happening right now.

2 These are rules that are put in place for that

3 very process as I'm sure the Court understands.

4 THE COURT: So let me ask you this. Is that

5 a fair and accurate representation that these

6 damaged ballots are being reviewed by staff of the

7 supervisor of elections and that the witnesses are

8 sitting some 15 feet away and they're witnessing

9 is only that somebody's got a pen in hand and

10 they're duplicating their interpretation of what

11 they see on the ballot?

12 MR. BAUMANN: That would depend on your

13 definition of witness, Your Honor. Ballots are

14 duplicated by teams of staff. So, essentially,

15 one member has the damaged or the original ballot.

16 Another member has a clean ballot.

17 One person is reading off and watching that

18 this person is filling it in and then they switch

19 the ballots. And that person reads off the filled

20 in ballot while the other person follows the

21 original ballot to make sure it is correctly

22 filled in. That happens in every duplication

23 ballot. It's always witnessed. There is never an

24 instance where somebody is sitting alone --

25 THE COURT: Always witnessed by whom?

Page 12


000038

1 MR. BAUMANN: By another staff member of the

2 supervisor of election.

3 THE COURT: So in other words, the supervisor

4 of elections witnesses the supervisor of

5 elections.

6 MR. BAUMANN: Yes, but staff members.

7 THE COURT: I know it's staff members, but

8 it's still the supervisor of elections. It's not

9 -- I man you're saying then you believe the

10 definition is the witness could be somebody from

11 -- because wouldn't we agree to this, that the

12 supervisor of elections couldn't go put herself in

13 a private room with all of the damaged ballots and

14 be unilaterally making that decision, right?

15 MR. BAUMANN: All by herself?

16 THE COURT: Right.

17 MR. BAUMANN: No.

18 THE COURT: So then you're telling me that

19 your interpretation of to witness -- to have the

20 procedure witnessed in the presence of witnesses,

21 that that would be satisfied by having a member of

22 her staff witness it?

23 MR. BAUMANN: It's at least two members of

24 staff.

25 THE COURT: But it's still the supervisor of

Page 13


000039

1 elections in my opinion.

2 MR. BAUMANN: Okay.

3 THE COURT: You're witnessing your own work.

4 When I do that, I give myself an A plus all the

5 time.

6 MR. BAUMANN: Respectfully, Your Honor, what

7 they are describing is a separate procedure that's

8 laid out for things like manual recounts where you

9 have counting teams and the statute expressly

10 speaks of members of each candidate being able to

11 stand over the counting teams and lodge an

12 objection to a vote or something like that. The

13 statute just says witnesses. It does not say

14 anything --

15 THE COURT: So you would like me to narrowly

16 construe that, the motion's narrow definition of

17 to be witnessed because in essence --

18 MR. BAUMANN: I think it's actually known as

19 fraud.

20 THE COURT: -- the supervisor of elections is

21 witnessing their own work.

22 MR. BAUMANN: Witnessing their own work.

23 THE COURT: Right. I mean because you're

24 telling me one staff member is filling it out and

25 the staff member is witnessing, then they switch

Page 14


000040

1 sides and swap sides, and then they're witnessing

2 each other's work, but they're all from the

3 supervisor of elections.


5 THE COURT: Right?

6 MR. BAUMANN: They are all supervisor of

7 election employees, correct. They're not members

8 of the Scott campaign or the Nelson campaign

9 allowed back into the -- amongst the ballots into

10 the --

11 THE COURT: Inner sanctum.

12 MR. BAUMANN: Well, it's an open warehouse.

13 THE COURT: I know.

14 MR. BAUMANN: You've been there, I'm sure.

15 And now -- but it simply says witness. What

16 they're suggesting, I guess, is that we need to

17 get someone else to stand over these people at

18 3:00 in the morning and watch them --

19 THE COURT: There would be lots of

20 volunteers, trust me, there would be.

21 MS. RODZ: Time would no issue, Your Honor.

22 The easy remedy at this juncture because we have

23 stood ready, willing, and able to simply be in the

24 presence of witnesses, be that witness, but it has

25 not been allowed.

Page 15


000041

1 The easy remedy is to obtain -- and we

2 understand that they have the original ballot and

3 they have the duplicate ballot that has been

4 prepared --

5 MR. BAUMANN: That's required by law.

6 THE COURT: Right.

7 MS. RODZ: Yes, but sometimes, the law is

8 broken. So what I'm saying is it's been complied

9 with as I understand --

10 MR. BAUMANN: I object to the statement.

11 MS. RODZ: So what I'm proposing -- what we

12 are proposing to make it smooth and quick, which

13 we certainly can do before 12:00 noon tomorrow,

14 which is the deadline, is to start the process of

15 looking at the original and the duplicate and

16 allow us to see that, in fact, the original was

17 transposed to the duplicate in a proper fashion.

18 If, in fact, there is one that is not, what

19 we're saying is put that one aside and allow the

20 canvassing board, which is what the statute calls

21 for on any issues, allow the canvassing board to

22 review those.

23 Let's start that process immediately. If

24 there's any issues, we put those aside. The

25 minute those are all concluded, we give them to

Page 16


000042

1 the canvassing board. Let the canvassing board do

2 their job as the legislature intended them to do.

3 That takes us to the next step, Your Honor, if I

4 may?

5 In the statute, it says --

6 THE COURT: Wait. So you're arguing that

7 what you want to do at this juncture is that Rick

8 Scott for Senate will come in and review all of

9 the damaged ballots and that you're going to make

10 a pile of those that you think were not accurately

11 duplicated or you want a sample. What is it that

12 you're requesting?

13 MS. RODZ: What we're requesting is that the

14 staff have available the duplicate and the

15 original, which are together, go through the

16 process allowing us to oversee in the presence of

17 witnesses and make sure that they're accurate.

18 And if there is any that is not accurate or

19 questionable, that will be put aside and provided

20 to the canvassing board to determine, not for the

21 supervisor of elections.

22 THE COURT: My question is what, you want to

23 look at every single one that was deemed damaged

24 and duplicated?

25 MS. RODZ: Yes, Your Honor.

Page 17


000043

1 THE COURT: And how many are there?

2 MS. RODZ: How many damaged ballots are

3 there? I think there's probably like 2,000 or so.

4 Do we know the exact number?

5 MR. BAUMANN: It's probably more than that,

6 Your Honor.

7 MS. RODZ: This is not a hard task, Your

8 Honor. As you were stating before, we have --

9 within 48 hours, you have to do certain tasks. We

10 certainly can do it. We certainly can have the

11 manpower to do it. What we need to have is a

12 proper and accurate election. So we're trying our

13 best to do that.

14 We've been there ready, willing, and able to

15 -- but this is a good alternative. We're not

16 asking them to redo the job. We're just asking

17 them to allow us to see that the job has been done

18 accurately.

19 THE COURT: What's your position on giving

20 them the ability to inspect the accuracy of the

21 duplication process?

22 MR. BAUMANN: I'm not sure that it can be

23 accomplished immediately as they're suggesting,

24 Your Honor. We have a noon deadline for tomorrow

25 to complete and report our results.

Page 18


000044

1 The duplication process that they're

2 referring to, ballots that the canvassing board

3 checks off on and makes note too when they're

4 duplicated. They're brought back to the

5 canvassing board and the canvassing board looks at

6 the duplication again.

7 THE COURT: Wait. What?

8 MR. BAUMANN: Yeah.

9 THE COURT: So when this witnessing is going

10 on and they're duplicating the damaged ballots --

11 MR. BAUMANN: So the canvassing board finds

12 --

13 THE COURT: What's taken before the

14 canvassing board?

15 MR. BAUMANN: The original ballot.

16 THE COURT: The damaged ballot.

17 MR. BAUMANN: Well, it may be an overvote, an

18 undervote. The ballot didn't run through the

19 machine properly, whatever it is.

20 THE COURT: Yeah.

21 MR. BAUMANN: And the canvassing board looks

22 at it and says either this one is clear, the

23 ballot just didn't run, go ahead and duplicate it,

24 et cetera, and they're brought back to the

25 canvassing board and looked at again. And they

Page 19


000045

1 take both of them and they slide them forward and

2 you can watch one canvassing board member read it

3 off.

4 MS. RODZ: Every single one, Your Honor, I

5 don't believe is accurate because we were there.

6 We had spoken to the supervisor of elections while

7 we had been there. I don't believe that's an

8 accurate statement as to every single one.

9 I believe that they have been picking and

10 choosing which ones are going to the canvassing

11 board and that's improper as well, which is part

12 of our complaint and our emergency motion under

13 the second prong of the very same statute.

14 MR. BAUMANN: So the ones that go to the

15 canvassing board that is the process, Your Honor.

16 I'm not sure what -- I wasn't privy to whatever

17 she spoke to the supervisor about.

18 The other one is it's my understanding that

19 when you have a clear ballot that just won't run,

20 they just -- they duplicate it in the presence of

21 witnesses, but the ones that there's questions

22 over that requires, essentially, gee, I'm not

23 really sure what was meant here or something like

24 that.

25 The canvassing board makes that

Page 20


000046

1 determination. They're written on all these

2 stickies. They go back, they're duplicated, and

3 then they're brought back. In fact, that's part

4 of what we have to do today is go back over the

5 ballots that were duplicated that were canvassed

6 by the board two nights ago.

7 MS. RODZ: May I respond, Your Honor?

8 THE COURT: Yes.

9 MS. RODZ: The supervisor of elections and

10 her staff are not allowed to look at the intent of

11 a voter. The minute there's an issue, that needs

12 to be set aside immediately provided in the stack

13 that goes to the canvassings board.

14 What we understand and what we have presented

15 to the Court within the four corners of our

16 verified complaint is that they are picking and

17 choosing. They are making that determination and

18 then they're selecting which ones are going to the

19 canvassing board.

20 THE COURT: Because you're making this

21 allegation.

22 MS. RODZ: Yes.

23 THE COURT: So you're saying that you believe

24 the supervisor of elections is throwing out

25 overvote and undervotes without having to go

Page 21


000047

1 before the canvassing board.

2 MS. RODZ: It's making the determination

3 without having to go before the canvassing board

4 on. Any one that is not clear and unequivocal,

5 they have to take it before the canvassing board.

6 They cannot look at intent. They cannot determine

7 the intent of that voter.

8 THE COURT: Is that true? Is the supervisor

9 of elections unilaterally making a -- because I

10 find that troublesome. I mean that's a bold

11 assertion and if the supervisor of elections is

12 looking at the ballots and saying overvote,

13 undervote, overvote, and putting them in a big

14 pile without the canvassing board reviewing, then

15 that's a problem.

16 MR. BAUMANN: It's my understanding that they

17 are some ballots where rather than checking in the

18 arrow, the name in the circle --

19 THE COURT: Sure.

20 MR. BAUMANN: -- something like that, that

21 those do not go in front of the canvassing board.

22 When you have multiple -- when you actually have

23 to look at, gee, they crossed this out or they did

24 this or something like that, those go in front of

25 the canvassing board.

Page 22


000048

1 MS. RODZ: What you're hearing is

2 determinations and of course, since we have not

3 been able to witness and this has not occurred in

4 the presence of witnesses, we can't tell you if

5 that has been done accurately and if, in fact,

6 this is the type of determination that's been

7 made, which is why we're before the Court today.

8 It's very important that we be able to do

9 this immediately. It can be done. It can

10 certainly be done in time. We would certainly

11 take all efforts necessary to participate.

12 MR. BAUMANN: The other thing that I would

13 add to that is that the duplication of ballots,

14 Your Honor, is done. So I don't know what we're

15 -- in terms of the injunctive relief here, it's

16 sort of moot. That part of the canvassing has

17 been completed.

18 They're looking at, it's my understanding,

19 the original ballots today and some duplicated

20 ballots.

21 MS. RODZ: Your Honor, it's not moot. The

22 whole reason why we're asking for us to be allowed

23 to look at what's actually been duplicated and the

24 original is because we know that it has been done.

25 The supervisor of elections did tell us, oh, we

Page 23


000049

1 did the whole job already.

2 So we're not asking them to do it again.

3 We're saying well, we wanted to look at it. We're

4 allowed to look at it under the statute and allow

5 us that process. We need to ensure that this is

6 accurate and we're ready to start immediately.

7 THE COURT: Do you have any idea how many

8 where there was just a decision made that they

9 were overvoted or undervoted and the canvassing

10 board didn't have an opportunity to make that

11 determination, but rather it was just made by the

12 supervisor or by a staff member?

13 MR. BAUMANN: Truthfully, Your Honor, I do

14 not have an estimate of what number of those did

15 not come to the canvassing board, but the

16 canvassing board sees, my assumption is, most of

17 them, but in terms of --

18 THE COURT: Well, I was on the canvassing

19 board and we certainly, at that time, looked at

20 everything. We looked at everything. We didn't

21 have some staff member determining if it was an

22 undervote and not have -- the canvassing board had

23 to agree that it was an overvote or an undervote.

24 So I'm really puzzled if that's the practice

25 now that some staff member is making that

Page 24


000050

1 determination and not the canvassing board.

2 That's troubling.

3 MS. RODZ: This is why we're here, Your

4 Honor. If not, we would not be here. You're

5 absolutely right. If the canvassing board would

6 be allowed to do its job, but the canvassing board

7 will not receive those that have been determined

8 by the supervisor of elections, which is the very

9 problem.

10 We need to be able to have full compliance

11 with the statute, ensure that the canvassing board

12 has its opportunity to make that determination.

13 That is not for the supervisor of elections and

14 it's unequivocal under the statute.

15 THE COURT: So what are you asking for?

16 MS. RODZ: Okay. So what I would like to be

17 able to do and I have it in the very first section

18 of my motion is to have the supervisor staff

19 review the duplicate ballot together with the

20 original damaged ballot in the presence of the

21 Plaintiff and any other witness. Certainly --

22 THE COURT: No, that's not going to happen.

23 We're not going to do that. I'm not going to

24 broaden the language, it must be in the presence

25 of witnesses to include they're going to have to

Page 25


000051

1 start over from scratch with Rick Scott for Senate

2 looking over their shoulder on each of them.

3 Counsel raises a good point. This has been

4 done. I'm not sure that that wouldn't satisfy it

5 that it's witnessed. I don't like it. I don't

6 think it's best practices and this should have

7 been addressed long ago. I mean this has been

8 going on for some time with mail-ins and so forth.

9 So there should have been a motion that said

10 we're standing 15 feet away and we don't like it

11 and we want to be able to witness this duplication

12 process, but we're not going to start over again.

13 Particularly, since you cannot suggest to me that

14 this process that they have where they are

15 duplicating damaged ballots that it's just being

16 unilaterally done by one person. They do have a

17 witness.

18 MS. RODZ: Your Honor, you're hearing that

19 they do have a witness. We have not seen

20 witnesses and the four corners of our complaint

21 does not state that they have a witness.

22 In fact, they have staff members doing this

23 job. Again, if a staff member is doing its job

24 and this staff member, this staff member, and the

25 one that's next, I don't know that they're

Page 26


000052

1 actually witnessing it to each other. There is no

2 verification on this side, but I will tell you --

3 THE COURT: But counsel has represented that

4 they do it in tandem and then they switch places.

5 So if that's not accurate -- I mean you're telling

6 me that you know that to be true that his

7 representation to me that the damaged ballot comes

8 in and that the other individual fills it out and

9 then they swap roles to make sure that they didn't

10 miss something.

11 MS. RODZ: I don't know that. This is an

12 argument that I'm hearing. I don't see a verified

13 action. I don't have a verified affidavit here by

14 someone saying that, but I don't know that.

15 I will tell you that we have been there 24/7

16 and we have not been seeing this, here, you review

17 this one and you review this one. We've been

18 seeing one person, another person, another person

19 doing a job and we have no idea what's being done.

20 We've been asking can we review them, can we

21 see them, and what we get is here, have a brisk

22 walk around the room and then come back.

23 THE COURT: Let me ask you this. When this

24 process is going on, is it really your position

25 that the entire public should be invited to come

Page 27


000053

1 up and look over their shoulder to make sure that

2 it's being -- who would it be appropriate to stand

3 over their shoulder to see what they're doing?

4 Because we can all agree you're not allowed to

5 touch it and nobody is allowed to touch it except

6 for the supervisor of elections.

7 MS. RODZ: That's correct.

8 THE COURT: You cannot physically touch that

9 document. So, you know, I don't know that this is

10 best practices that the witness is another

11 individual that works at the supervisor of

12 elections, but what are you suggesting is the

13 remedy that we conduct it at the Palm Beach County

14 Convention Center and 98 people will put it on a

15 screen and 98 people, whoever wants to be a

16 witness can come in and do it?

17 MS. RODZ: Your Honor, what we wanted to have

18 is obviously have a witness. That has not

19 happened. A neutral witness has not -- and that's

20 implied by the statute.

21 THE COURT: It doesn't say a neutral witness,

22 does it?

23 MS. RODZ: No, but the fact that the

24 legislature drafted the fact that you're going to

25 have it in the presence of a witness --

Page 28


000054

1 THE COURT: Let me ask you this. So have you

2 surveyed other circuits to determine whether or

3 not when this process is occurring in

4 Hillsborough, for example, that the supervisor of

5 elections is taking the damaged ballots and

6 duplicating them, that members of the public --

7 who are the witnesses in other circuits?

8 Is this a statewide practice or are they

9 doing something different here in Palm Beach

10 County?

11 MS. RODZ: In Broward and Hillsborough, we

12 have seen them providing all of the undervote and

13 overvote to the canvassing board, not like here.

14 And we have been able to oversee some of the

15 process.

16 THE COURT: Okay. Let's start with this. I

17 think it's perfectly reasonable that if members of

18 the supervisors of elections made a determination

19 on some of these damaged ballots that they were

20 not going to be reviewed by the canvassing board

21 -- that they have to be reviewed by the canvassing

22 board.

23 So if there is a pile -- can anybody tell me

24 unequivocally whether that there's such a -- I

25 don't know that anybody has convinced me one way

Page 29


000055

1 or the other.

2 MS. RODZ: Your Honor, if I may? We can have

3 the canvassing board review them. That is a

4 proper mechanism. We don't have to be there. It

5 doesn't have to happen again. That way, the

6 Nelson campaign, the Scott campaign --

7 THE COURT: Did Nelson intervene or join

8 because I think they're long gone?

9 MS. RODZ: No, they have not, but it's fair.

10 We don't care one way or the other. We just want

11 the process to be followed in accordance with the

12 statute, but if the canvassing board receives them

13 all and does its job as it should be allowed to do

14 --

15 THE COURT: Do you wish to be heard on that

16 with regard to -- I find that if ballots were

17 determined to be undervotes or overvotes or -- and

18 that wasn't reviewed by the canvassing board, that

19 if that exists -- can you tell me that it does

20 exist? Do you think that that's true?

21 MR. BAUMANN: It's -- what I'm hearing is it

22 sounds like some of it is true.

23 THE COURT: Okay. So do you have any problem

24 with me saying that those have to be reviewed by

25 the canvassing board?

Page 30


000056

1 MR. BAUMANN: That that discreet pile is

2 simply brought in front of the canvassing board?

3 THE COURT: For starters.

4 MR. BAUMANN: For starters, I guess we'll

5 have to do that if that's what you order, Your

6 Honor.

7 THE COURT: Okay.

8 MR. BAUMANN: As to simply the duplication

9 process, the statute says witness. It's my

10 understanding that that is the practice pretty

11 much throughout in terms of the simple duplication

12 process of a ballot is that it's done by a pair or

13 even a trio of supervisors.

14 I can't speak to what the person who signed

15 the affidavit thought they were seeing or not

16 seeing, but I can tell you that the process of

17 duplicating ballots is conducted by at least two

18 people in every instance.

19 THE COURT: In every instance.

20 MR. BAUMANN: In every instance.

21 THE COURT: Back to my question to you. Do

22 you think that that procedure is different in

23 other circuits?

24 MS. RODZ: Yes, I do.

25 THE COURT: Not do you think, do you know?

Page 31


000057

1 Can you represent to me as an officer of the court

2 that unequivocally in different circuits when they

3 construe to be witnessed, that there are neutral

4 witnesses?

5 MS. RODZ: Well, we've even received -- in

6 Miami-Dade, we've received all of the provisional

7 ballots, all of the copies, I mean, once it's been

8 done. So yes, it is.

9 However, I will tell you --

10 THE COURT: Provisional. We're talking

11 damaged.

12 MS. RODZ: The damaged duplicate copies, yes,

13 we have confirmation --

14 MR. ZIMMERMAN: Your Honor, in Leon County, I

15 have personally been invited by the supervisor of

16 elections to stand and watch the duplication

17 process happen in past cycles. Anytime we've

18 asked for it, it has been done in the --

19 THE COURT: It sounds like a good time.

20 MR. BAUMANN: The question of how Leon County

21 does it doesn't go to the question of what the law

22 requires in terms of witnessing the duplication,

23 Your Honor.

24 MS. RODZ: Your Honor, witnessing does not

25 say I'm going to self-witness and I think the

Page 32


000058

1 Court is correct and has it correct when I cannot

2 self-witness myself. So I take great issue and

3 it's greatly concerning the fact that there are

4 duplicate copies of thousands of ballots that we

5 don't know if they've been done properly.

6 Now, it doesn't say -- the legislature would

7 not have intended to add in the presence of

8 witnesses --

9 THE COURT: Hang on for a minute. So you're

10 telling me that they're done with that. The

11 canvassing board is done with that portion of it?

12 MS. RODZ: The canvassing board, no. The

13 supervisor of elections is done.

14 MR. BAUMANN: Well, the canvassing board is

15 looking at if they haven't already at this point

16 looked at the last remaining duplicated ballots

17 that were brought before them.

18 To the extent that there are other duplicated

19 ballots that were not brought before them, I can't

20 speak to that, Your Honor. But in terms of what's

21 left to go in front of the canvassing board, if

22 they haven't already canvassed them, they will be

23 canvassing them shortly, but there's no more

24 duplication of ballots occurring at the warehouse.

25 MS. RODZ: Is it my colleague's attestation

Page 33


000059

1 to the Court that all duplicate ballots have been

2 given to the canvassing board because that would

3 be the first time that I hear such a statement?

4 MR. BAUMANN: No. I said that the ballots

5 that were presented back -- the last batch of

6 ballots to be presented back to the canvassing

7 board were -- when I left to come here, it

8 appeared that they were first up on the canvassing

9 board at 10:00 this morning.

10 It was my understanding that there were no

11 more duplicates for them to look at to make sure

12 that they were duplicated correctly. Those would

13 be ballots that the canvassing board reviewed and

14 then sent to be duplicated in accordance with the

15 law.

16 In terms of the other discussion of

17 duplication of a damaged ballot and things like

18 that, it's my understanding that there are no more

19 -- there is no more duplication occurring in the

20 supervisor's warehouse. All ballots have been

21 duplicated. There's nobody there in the teams

22 working to duplicate ballots anymore. That's

23 complete.

24 MS. RODZ: Your Honor, so I would

25 respectfully request that every duplicated ballot

Page 34


000060

1 that the canvassing board has not yet reviewed be

2 given to the canvassing board. That would suffice

3 and that would do proper justice to the statute.

4 It would be reviewed by the canvassing board.

5 If the canvassing board has an issue, we

6 would have an opportunity to see that, to be

7 heard, and that would be the proper protocol

8 considering what has been done is not consistent

9 with the statute.

10 MR. BAUMANN: Your Honor, respectfully, it

11 seemed that we had two different issues going on

12 here. One was the witnessing of ballots and the

13 other one was the overvote or undervote, which was

14 a smaller subset of --

15 THE COURT: On that, I am ruling that any

16 undervote, overvote, any damaged ballot that the

17 supervisor of elections and I say unilaterally

18 meaning her or her employees determined to throw

19 out without review of the canvassing board must be

20 presented to the canvassing board for review.

21 MR. BAUMANN: You mean by it was rejected?

22 THE COURT: Yeah.

23 MR. BAUMANN: Okay. What about --

24 THE COURT: I'm puzzled that you're telling

25 me that some staff member is rejecting ballots

Page 35


000061

1 without -- the statutory language is clear. That

2 determination should be made by the canvassing

3 board, not a staff member of the supervisor of

4 elections, to completely throw out a ballot.

5 I mean when I was on the canvassing board, we

6 looked at those very things, you know. Now that

7 we've got the line, people X, people circle,

8 people do all sorts of stuff, but that's not a

9 determination for a staff member.

10 MR. BAUMANN: A damaged ballot is not the

11 same thing as an overvote, undervote, voter

12 intent, Your Honor.

13 THE COURT: Well, they're all under the same

14 statute for --

15 MS. RODZ: For the canvassing board, that's

16 correct.

17 THE COURT: -- for purposes of the canvassing

18 board. What would a damaged ballot be that a

19 staff member would determine to throw out without

20 the review of the canvassing board?

21 MR. BAUMANN: No one would throw out a

22 damaged ballot. It would just be duplicated, Your

23 Honor.

24 THE COURT: I thought you had told me that

25 they were -- that the staff members without review

Page 36


000062

1 of the canvassing board were putting overvotes and

2 undervotes in a pile over here without reviewing

3 the canvassing board.

4 MR. BAUMANN: No. They were duplicating them

5 onto clean ballots, Your Honor. No votes -- no

6 ballots have been thrown out, Your Honor.

7 THE COURT: Not thrown out, not counted, so

8 --

9 MR. BAUMANN: Yeah, but --

10 THE COURT: Listen to me.

11 MR. BAUMANN: Yes.

12 THE COURT: This is what I want to know

13 because what I heard earlier that you said that

14 sometimes people circled it or they clearly messed

15 up.

16 MR. BAUMANN: Correct.

17 THE COURT: Are you representing to me that

18 if somebody circled everything instead of drawing

19 the lines together that no determination was made

20 by anyone with what to do with that, that the

21 canvassing board made the determination? Is that

22 what you're telling me?

23 MR. BAUMANN: No. I'm saying that in some of

24 those instances where it was simply, they circled

25 the name by sort of connecting the arrow, that the

Page 37


000063

1 ballot was simply duplicated correctly so that it

2 would read through the machine.

3 MS. RODZ: The key there, Your Honor, is

4 correctly. How do we know that? They're making a

5 determination --

6 MR. BAUMANN: By connecting the arrow.

7 MS. RODZ: The supervisor of elections is

8 making a determination that is not their job. The

9 canvassing board is the one that makes the

10 determination if there's something wrong.

11 THE COURT: I agree.

12 MR. BAUMANN: But you're also now delving

13 into a damaged ballot where there was no voter

14 intent, there was nothing. For whatever reason,

15 the card wouldn't run. Maybe because absentee

16 ballots sometimes --

17 THE COURT: And those were duplicated.

18 MR. BAUMANN: They were just simply

19 duplicated onto a card that would run.

20 MS. RODZ: But that's not the only reason.

21 There could be coffee that someone spilled over it

22 and then still mailed it and you can't even see

23 it.

24 There could be scratching on it. There could

25 be food marks on it that you don't know the

Page 38


000064

1 answer. We don't know those responses and so for

2 us to sit here and simply hear well, it's just

3 duplicated. No, that's not enough. That's not

4 what the statute intended.

5 If the legislature intended there not to be

6 witnesses present, they would not have drafted

7 such language. I mean this is important.

8 MR. BAUMANN: We're mixing and matching

9 witnesses present from --

10 THE COURT: All over the map.

11 MS. RODZ: Well, there's two key issues, Your

12 Honor. The fact that the supervisor of elections'

13 staff is making determinations, I think the Court

14 is very clear on the fact that that's not accurate

15 -- that's not proper.

16 THE COURT: No, I didn't say that. I said it

17 was not best practices to witness your own work.

18 MS. RODZ: They're not allowed, Your Honor --

19 MR. BAUMANN: That was on the witnessing.

20 THE COURT: I know. Let's stick to one topic

21 at a time. With regard to the statutory

22 requirement that it be in the presence of

23 witnesses, I am convinced that there was a

24 witness, albeit another employee of the supervisor

25 of elections. That is simply not best practices.

Page 39


000065

1 You have not convinced me that that's

2 illegal, that that's in contravention of the

3 statute because you haven't brought me anything

4 that says witness means it must be a neutral party

5 or it must be representatives of each of the

6 parties, the republican party, the democratic

7 party.

8 So it's certainly not best practices and they

9 should do something about that. That's wrong. So

10 as far as that goes, I'm not finding, based on

11 what I've heard, that there were not witnesses.

12 MS. RODZ: Your Honor, we filed a verified

13 complaint and a verified motion advising the

14 Court, as officers of this court, that they are

15 not witnesses. You have argued it. So I would

16 like to understand for purposes of the record what

17 has convinced the Court that there are witnesses?

18 The fact that I, myself, as you said, I'm

19 going to give myself an A plus, I did a good job,

20 and if my employer that's paying my payroll --

21 THE COURT: So when you filed this sworn

22 affidavit, you're telling me that you personally

23 stood there and watched and there were no

24 witnesses to determination by staff that a ballot

25 should be thrown out because you're the one who

Page 40


000066

1 swore that this was true and accurate.

2 You stood there and you're telling me as an

3 officer of the court that you personally witnessed

4 staff of the supervisor of elections duplicating

5 without anyone up to and including someone else

6 from their office watching.

7 MS. RODZ: I'm telling you that Shutts &

8 Bowen because --

9 THE COURT: You are not Shutts & Bowen. You

10 swore that that was true. So I don't want to hear

11 about other people told me. Are you telling me

12 that you witnessed that, that there were no

13 witnesses?

14 MS. RODZ: I personally did not witness it.

15 I have had and I have been on the phone 24/7 from

16 8:00 a.m. until the time that they kick us out of

17 the West Palm Beach -- which they have kicked us

18 out of there.

19 Every single day from the beginning of this,

20 I have been on the phone with my colleagues at all

21 times and I have been told blow by blow. This is

22 my partner, an officer of the court as well, and

23 I'm here on behalf of my firm representing the

24 party, the federal campaign. That this is exactly

25 what has been transpiring. I have Kevin Rosen

Page 41


000067

1 that has also been present, boots on the ground,

2 on the phone.

3 THE COURT: Why did you not come to the Court

4 when this was going on? Why did you wait until it

5 was all over but the crying to come to the Court

6 to say hey, we are standing here watching and

7 they're not in statutory compliance, there's no

8 witnesses to this?

9 Why wasn't a motion filed days ago when

10 everybody in your office was standing at the

11 window watching 15 feet away while people were

12 unilaterally making the decision?

13 Because really, what you asked for is for me

14 to require that they comply with the statute.

15 That there are witnesses. You want me to define

16 what that is, but it's done and over with. It's

17 already been counted. Whether it was witnessed or

18 not, that's in the past.

19 So why didn't you come and ask for a cure

20 when according to you, everybody in your office

21 was watching this wrong go down?

22 MS. RODZ: Your Honor, first of all, we don't

23 know what's not told to us. So first --

24 THE COURT: I thought they were on the phone

25 telling you. You were getting a blow by blow.

Page 42


000068

1 They're not witnessing this.

2 MS. RODZ: No, no. First of all, there's

3 been three days of counting after the election.

4 So it's not three days ago. There has been

5 counting three days after the election took place

6 and if we're told -- we were not told that all of

7 them had been done.

8 We're being told that they're now receiving

9 from mail. They had mail being received from --

10 as to the military ballots that were mailed in.

11 There's 1,500 mailed in. We are only at the mercy

12 of whatever is told to us. We were not told oh,

13 we finished the job.

14 THE COURT: So you're seeking injunctive

15 relief and the deed is done. I can't give you an

16 injunction that says stop this right now, I order

17 that a witness be present and looking over the

18 shoulder. I can't order it. It's done.

19 MS. RODZ: Your Honor, we're not asking you

20 to order that a witness be present, but the

21 material is there. The original and the backup is

22 there.

23 By the way, the counting, which is noon

24 tomorrow, has not taken place. So how about if

25 this Court preserving justice allows us to see an

Page 43


000069

1 overview, which is what we're asking. Allow us to

2 be a witness, to have a witness and if in fact,

3 there are 20,000, guess what, there will be a

4 different sender because this was improper. I

5 mean, this is a great injustice. This is the very

6 basis of an injunctive motion.

7 Now, where we tried is we tried to work with

8 the supervisor of elections. We try to remedy

9 before coming to court. I don't want to run to

10 court every time that there is an issue.

11 Most of the times, nine times out of ten, the

12 supervisor of elections works with the secretary

13 of state. We're able to get a resolution. We get

14 an opinion. They work with us. We hold hands.

15 We get it fixed. That's our first intent.

16 Our second intent after we've exhausted all

17 of those remedies is to come before this Court and

18 seek relief as a last remedy. We don't file

19 complaints and file causes of action and spend the

20 Court's time, which is a public expense, or our

21 time which is expensive also to the federal

22 campaign if it's not absolutely necessary --

23 THE COURT: I think it probably should have

24 been deemed absolutely necessary some three days

25 ago when they started doing this or when you were

Page 44


000070

1 observing that nobody according to you, albeit not

2 you, that people were observing that there were no

3 witnesses.

4 It seems to me that that would have been a

5 rather urgent time to say we want this to stop

6 until such time that it can be witnessed.

7 MS. RODZ: Three days ago, we weren't told

8 no.

9 THE COURT: Stop. So what is it you're

10 asking? You want to review every single damaged

11 ballot. You want somebody from your law office to

12 come in and review every single damaged ballot.

13 MS. RODZ: No, Your Honor.

14 THE COURT: What do you want?

15 MS. RODZ: I want all the damaged ballots

16 that were duplicated and have not been given to

17 the canvassing board, give them to the canvassing

18 board.

19 THE COURT: Granted.

20 MS. RODZ: Great.


22 THE COURT: Anything else?

23 MS. RODZ: Yes. Can we talk about the

24 undervote and overvote or did you grant that

25 already?

Page 45


000071

1 THE COURT: I'm saying if anybody decided to

2 throw out a ballot for whatever reason that

3 somebody at the supervisor of elections witnessed

4 whether there was a witness or not a witness, if

5 anybody there said, this is an undervote, this is

6 an overvote, this is a circle, that if any of that

7 occurred without the final say being the

8 canvassing board that that must go to the

9 canvassing board for a decision.

10 MS. RODZ: Your Honor, may I say it

11 differently just to make sure that they have

12 direct instruction?

13 THE COURT: Yes.

14 MS. RODZ: I would propose that any over and

15 under that was not provided to the canvassing

16 board for its determination be provided. I think

17 that's a very clear -- so that they don't have to

18 determine which one did you do or not do.

19 THE COURT: Okay. Do you have any problem

20 with that?

21 MR. BAUMANN: We'll get it done, Your Honor.

22 THE COURT: Okay.

23 MS. RODZ: Would you us like to submit to you

24 an order?

25 THE COURT: Great.

Page 46


000072

1 MS. RODZ: Okay. Will do. Thank you so much

2 for your time.

3 THE COURT: Anything else? Have a great day.

4 MS. RODZ: Thank you, Your Honor.

5 (The proceedings were concluded at 11:53

6 a.m.)

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Page 47


000073

1 C E R T I F I C A T E

2

3 STATE OF FLORIDA

4 COUNTY OF PALM BEACH

5

6 I, Anthony Curling, Reporter, certify that I

7 was authorized to and did report the foregoing

8 proceedings, and that the transcript is a true and

9 correct transcription of my notes to the

10 proceedings.

11 I further certify that I am not a relative,

12 employee, attorney, or counsel of any of the

13 parties, nor am I a relative or employee of any of

14 the parties' attorneys or counsel connected with

15 the action, nor am I financially interested in the

16 action.

17 Signed this 16th day of November, 2018.

18

19

20

<%3663,Signature%>

21 ________________________________

Anthony Curling, Reporter

22

23

24

25

Page 48


000074

&

& 2:3,13 3:18 7:641:7,9

0

014075 1:3

1

1,500 43:11101.5614 6:10102.166. 7:110:00 34:910e 1:1411:00 1:1612:00 16:131400 2:915 12:8 26:10 42:111500 2:1315th 1:116th 48:17

2

2,000 18:320,000 44:3200 2:32018 1:15 48:17205 1:1324/7 7:8 8:12 27:15

41:15

3

301 2:9305-358-6300 2:432801 2:933131 2:433401 2:143663 48:203:00 15:18

4

407-244-5669 2:104100 2:348 18:9

5

5 6:1450-2018 1:3515 2:13561-640-0820 2:14

8

8:00 41:16

9

98 28:14,159th 1:15

a

a.m. 1:16 41:1647:6

abaumann 2:15ability 18:20able 4:9 7:10 14:10

15:23 18:14 23:3,825:10,17 26:1129:14 44:13

absentee 6:11,206:21 38:15

absolutely 25:544:22,24

accomplished18:23

accuracy 18:20accurate 11:24

12:5 17:17,1818:12 20:5,8 24:627:5 39:14 41:1

accurately 17:1018:18 23:5

action 27:13 44:1948:15,16

add 23:13 33:7addressed 26:7adopted 6:25advise 5:18advising 40:13

affidavit 6:2 7:199:11 10:2 27:1331:15 40:22

afforded 7:12ago 21:6 26:7 42:9

43:4 44:25 45:7agree 7:23 8:5 9:6

9:18,21 11:1413:11 24:23 28:438:11

ahead 6:5 19:23albeit 39:24 45:1aliette 2:6 3:18allegation 21:21allege 7:19alleging 9:12 10:10allow 16:16,19,21

18:17 24:4 44:1allowed 15:9,25

21:10 23:22 24:425:6 28:4,5 30:1339:18

allowing 17:16allows 43:25alternative 18:15andrew 2:15answer 39:1anthony 48:6,21anybody 29:23,25

46:1,5anymore 34:22anytime 32:17apparently 5:17appearances 2:1appeared 34:8appearing 2:2,12appears 5:14 9:11appropriate 28:2argued 40:15arguing 17:6

argument 27:12arodz 2:5arrow 22:18 37:25

38:6aside 16:19,24

17:19 21:12asked 32:18 42:13asking 18:16,16

23:22 24:2 25:1527:20 43:19 44:145:10

assertion 22:11assumption 24:16attestation 33:25attorney 48:12attorneys 48:14authorized 48:7automatic 6:13available 17:14aware 3:9 5:21

b

back 4:18 15:9 19:419:24 21:2,3,427:22 31:21 34:5,6

backup 43:21ballot 6:11,15,18

6:20,20,22 7:4,511:18 12:11,15,1612:20,21,23 16:2,319:15,16,18,2320:19 25:19,2027:7 31:12 34:1734:25 35:16 36:436:10,18,22 38:138:13 40:24 45:1145:12 46:2

ballots 7:2,21 8:79:7 10:11 12:6,1312:19 13:13 15:917:9 18:2 19:2,1021:5 22:12,17

[& - ballots] Page 49


000075

23:13,19,20 26:1529:5,19 30:1631:17 32:7 33:4,1633:19,24 34:1,4,634:13,20,22 35:1235:25 37:5,6 38:1643:10 45:15

based 6:2,25 40:10basis 44:6batch 34:5baumann 2:15 3:5

3:9,12 4:16,23 5:15:5,10 6:5 12:1213:1,6,15,17,2314:2,6,18,22 15:4,615:12,14 16:5,1018:5,22 19:8,11,1519:17,21 20:1422:16,20 23:1224:13 30:21 31:1,431:8,20 32:2033:14 34:4 35:1035:21,23 36:10,2137:4,9,11,16,2338:6,12,18 39:8,1945:21 46:21

beach 1:2,13,142:14 28:13 29:941:17 48:4

bear 7:3,10beginning 41:19behalf 2:2,12 7:7

9:19 10:25 41:23believe 13:9 20:5,7

20:9 21:23ben 3:21,23benjamin 2:7bent 10:8best 9:14 18:13

26:6 28:10 39:1739:25 40:8

bgibson 2:5big 22:13biscayne 2:3blow 41:21,21

42:25,25board 6:25 16:20

16:21 17:1,1,2019:2,5,5,11,14,2119:25 20:2,11,1520:25 21:6,13,1922:1,3,5,14,21,2524:10,15,16,19,2225:1,5,6,11 29:1329:20,22 30:3,1230:18,25 31:233:11,12,14,2134:2,7,9,13 35:1,235:4,5,19,20 36:3,536:15,18,20 37:1,337:21 38:9 45:1745:18 46:8,9,16

bold 22:10boots 42:1boulevard 2:3bowen 2:3 3:18 7:6

41:8,9brisk 27:21broaden 25:24broken 16:8brought 19:4,24

21:3 31:2 33:17,1940:3

broward 29:11bucher 1:8 3:4,5

5:15,17

c

c 48:1,1ca 1:3call 4:6called 5:20

calls 16:20campaign 8:1,1,2

9:14 15:8,8 30:6,641:24 44:22

candidate 14:10canvassed 21:5

33:22canvassing 6:25

16:20,21 17:1,1,2019:2,5,5,11,14,2119:25 20:2,10,1520:25 21:19 22:1,322:5,14,21,2523:16 24:9,15,1624:18,22 25:1,5,625:11 29:13,20,2130:3,12,18,25 31:233:11,12,14,21,2334:2,6,8,13 35:1,235:4,5,19,20 36:2,536:15,17,20 37:1,337:21 38:9 45:1745:17 46:8,9,15

canvassings 21:13card 38:15,19care 30:10case 1:3 3:10causes 44:19caution 11:11center 28:14certain 18:9certainly 4:10 8:7

9:11 16:13 18:1018:10 23:10,1024:19 25:21 40:8

certify 48:6,11cetera 19:24channel 4:18checking 22:17checks 19:3

choosing 20:1021:17

circle 22:18 36:746:6

circled 37:14,18,24circuit 1:1,1circuits 29:2,7

31:23 32:2clean 12:16 37:5clear 19:22 20:19

22:4 36:1 39:1446:17

clearer 9:9clearly 7:2 37:14coffee 38:21colleague 3:23 4:25

8:22colleague's 33:25colleagues 41:20come 9:15 17:8

24:15 27:22,2528:16 34:7 42:3,542:19 44:17 45:12

comes 27:7coming 44:9commencing 1:16committee 8:1,2complaint 3:13 4:4

4:14,18,22 5:1320:12 21:16 26:2040:13

complaints 44:19complete 18:25

34:23completed 23:17completely 9:6

36:4compliance 25:10

42:7complied 16:8

[ballots - complied] Page 50


000076

comply 42:14concern 11:10concerning 33:3concluded 16:25

47:5conduct 28:13conducted 31:17confirm 5:23 8:24

11:9confirmation 32:13connected 48:14connecting 37:25

38:6considering 35:8consistent 35:8constitution 11:25construe 14:16

32:3containing 6:21contravention 40:2convention 28:14convinced 29:25

39:23 40:1,17copies 7:11,21 32:7

32:12 33:4copy 3:12 4:21,23

4:25 5:3,18 6:158:20 9:1 11:1,3

corners 21:1526:20

correct 8:4 10:415:7 28:7 33:1,136:16 37:16 48:9

correctly 12:2134:12 38:1,4

counsel 3:19 4:1,135:25 7:8 26:3 27:348:12,14

counted 6:13 7:437:7 42:17

counting 14:9,1143:3,5,23

county 1:2,1328:13 29:10 32:1432:20 48:4

course 4:24 23:2court 1:1,13 3:3,6

3:11,14,16,24 4:2,64:12,21 5:6,8,19,215:25 6:4,6 7:15,177:19 8:2,5,11 9:2,410:1,5,20,22,2311:11,14,21 12:3,412:25 13:3,7,16,1813:25 14:3,15,2014:23 15:5,11,1315:19 16:6 17:6,2218:1,19 19:7,9,1319:16,20 21:8,1521:20,23 22:8,1923:7 24:7,18 25:1525:22 27:3,23 28:828:21 29:1,16 30:730:15,23 31:3,7,1931:21,25 32:1,1032:19 33:1,9 34:135:15,22,24 36:1336:17,24 37:7,1037:12,17 38:11,1739:10,13,16,2040:14,14,17,2141:3,9,22 42:3,3,542:24 43:14,2544:9,10,17,23 45:945:14,19,22 46:146:13,19,22,2547:3

court's 44:20courthouse 1:13crossed 22:23

crying 42:5cure 42:19curling 48:6,21cycles 32:17

d

dade 32:6damaged 6:12,15

6:17 7:21 8:7 9:712:6,15 13:13 17:917:23 18:2 19:1019:16 25:20 26:1527:7 29:5,19 32:1132:12 34:17 35:1636:10,18,22 38:1345:10,12,15

day 1:15 41:19 47:348:17

days 42:9 43:3,4,544:24 45:7

deadline 16:1418:24

dealing 10:18dear 8:21decided 46:1decision 13:14 24:8

42:12 46:9deed 43:15deemed 17:23

44:24defective 7:4,5defendant 1:9 2:12define 42:15defines 8:8definition 11:15

12:13 13:10 14:16delving 38:12democratic 11:6,22

40:6demonstrate 10:14depend 12:12

describing 14:7determination 21:1

21:17 22:2 23:624:11 25:1,1229:18 36:2,9 37:1937:21 38:5,8,1040:24 46:16

determinations23:2 39:13

determine 17:2022:6 29:2 36:1946:18

determined 6:23,2425:7 30:17 35:18

determining 24:21different 29:9

31:22 32:2 35:1144:4

differently 46:11diligently 4:9direct 7:13 46:12discreet 31:1discussion 34:16distance 10:18division 7:1dixie 1:14document 28:9doing 8:18 11:1,5

26:22,23 27:1928:3 29:9 44:25

drafted 28:24 39:6drawing 37:18drive 2:13due 6:4duplicate 6:14,19

7:2,11,21 16:3,1516:17 17:14 19:2320:20 25:19 32:1233:4 34:1,22

duplicated 9:712:14 17:11,24

[comply - duplicated] Page 51


000077

19:4 21:2,5 23:1923:23 33:16,1834:12,14,21,2536:22 38:1,17,1939:3 45:16

duplicates 8:1834:11

duplicating 8:6,199:1 12:10 19:1026:15 29:6 31:1737:4 41:4

duplication 12:2218:21 19:1,6 23:1326:11 31:8,1132:16,22 33:2434:17,19

e

e 48:1,1earlier 37:13east 2:9easy 15:22 16:1efforts 23:11either 19:22election 7:20 13:2

15:7 18:12 43:3,5election's 5:22 7:9elections 10:5,24

11:1,2 12:7 13:4,513:8,12 14:1,2015:3 17:21 20:621:9,24 22:9,1123:25 25:8,13 28:628:12 29:5,1832:16 33:13 35:1736:4 38:7 39:12,2541:4 44:8,12 46:3

email 4:5,8,15emailed 5:23emergency 20:12employee 39:24

48:12,13

employees 15:735:18

employer 40:20ensure 24:5 25:11enthusiasm 6:6,8entire 27:25equipment 6:13eservice 5:14esquire 2:6,7,7,11

2:15essence 14:17essentially 12:14

20:22estimate 24:14et 19:24everybody 11:17

42:10,20exact 18:4exactly 41:24example 8:13 11:18

29:4exhausted 44:16exist 30:20exists 30:19expense 44:20expensive 44:21expressly 14:9extent 33:18

f

f 48:1fact 6:16 8:25

16:16,18 21:3 23:526:22 28:23,2433:3 39:12,1440:18 44:2

fair 11:24 12:5 30:9familiar 3:11far 9:4 40:10fashion 16:17fax 4:5,8

faxed 5:23federal 8:1,2 41:24

44:21feet 10:15 12:8

26:10 42:11file 44:18,19filed 40:12,21 42:9filled 12:19,22filling 12:18 14:24fills 27:8final 46:7financially 48:15find 8:8 22:10

30:16finding 40:10finds 19:11finished 43:13firm 41:23first 5:17 9:18,24

25:17 34:3,8 42:2242:23 43:2 44:15

five 4:22fixed 44:15flagler 2:13florida 1:2,15 2:4,9

2:14 48:3followed 30:11following 3:1follows 12:20food 38:25foregoing 48:7forgive 5:16formally 4:10forth 26:8forward 20:1forwarded 5:11found 11:15four 21:15 26:20fraud 14:19free 4:20

friday 1:15front 22:21,24 31:2

33:21full 25:10further 48:11

g

gee 20:22 22:23getting 42:25gibson 2:7 3:21,22

3:23give 14:4 16:25

40:19 43:15 45:17given 34:2 35:2

45:16giving 18:19go 6:5 13:12 17:15

19:23 20:14 21:2,421:25 22:3,21,2432:21 33:21 42:2146:8

goes 21:13 40:10going 3:8 6:10 10:6

10:7,8 17:9 19:920:10 21:18 25:2225:23,23,25 26:826:12 27:24 28:2429:20 32:25 35:1140:19 42:4

gonzalez 2:7 3:25good 3:15,16,21,24

4:2 10:15 18:1526:3 32:19 40:19

grant 45:24granted 45:19gray 2:8,10great 11:9 33:2

44:5 45:20 46:2547:3

greatly 33:3ground 42:1

[duplicated - ground] Page 52


000078

guess 15:16 31:444:3

h

hand 4:17 12:9handing 4:24hands 44:14hang 33:9happen 25:22 30:5

32:17happened 28:19happening 8:17

10:2 11:8 12:1happens 12:22happy 5:24hard 18:7hear 6:7 34:3 39:2

41:10heard 30:15 35:7

37:13 40:11hearing 1:17 3:10

4:7 23:1 26:1827:12 30:21

hey 42:6highway 1:14hillsborough 29:4

29:11hmm 11:5hold 44:14honor 3:5,15,21 4:3

4:16,20 5:10,21 6:56:9,14 8:9,14 9:2312:13 14:6 15:2117:3,25 18:6,8,2420:4,15 21:7 23:1423:21 24:13 25:426:18 28:17 30:231:6 32:14,23,2433:20 34:24 35:1036:12,23 37:5,638:3 39:12,1840:12 42:22 43:19

45:13 46:10,2147:4

honorable 1:12hour 1:16hours 18:9

i

idea 9:15 24:727:19

illegal 40:2immediately 16:23

18:23 21:12 23:924:6

implied 28:20important 23:8

39:7improper 20:11

44:4include 6:23 25:25including 41:5individual 27:8

28:11injunction 43:16injunctive 23:15

43:14 44:6injustice 44:5inner 15:11ins 26:8inspect 18:20instance 12:24

31:18,19,20instances 37:24instruction 46:12intended 17:2 33:7

39:4,5intent 21:10 22:6,7

36:12 38:14 44:1544:16

interested 11:2048:15

interpretation12:10 13:19

interrupting 8:24intervene 30:7invited 27:25 32:15inviting 11:21issue 6:17,19 15:21

21:11 33:2 35:544:10

issues 16:21,2435:11 39:11

j

jason 2:7,11 3:25jason.zimmerman

2:10jasongonzalez 2:6job 17:2 18:16,17

24:1 25:6 26:23,2327:19 30:13 38:840:19 43:13

join 11:22 30:7judges 1:12judicial 1:1juncture 15:22

17:7justice 35:3 43:25

k

kevin 41:25key 6:16,24 38:3

39:11kick 41:16kicked 41:17know 5:8 8:11 9:5

10:14,15,17 13:715:13 18:4 23:1423:24 26:25 27:627:11,14 28:9,929:25 31:25 33:536:6 37:12 38:4,2539:1,20 42:23

known 14:18

knows 10:16krista 1:12

l

labeled 7:3laid 14:8language 6:24 9:9

25:24 36:1 39:7law 5:2 8:8 11:16

16:5,7 32:21 34:1545:11

law.com 2:15left 33:21 34:7legislature 11:25

17:2 28:24 33:639:5

leon 32:14,20lewis 2:13lieu 7:5likewise 6:19line 36:7lines 37:19listen 37:10llp 2:3llw 2:15lodge 14:11long 26:7 30:8longman 2:13look 9:23 17:23

21:10 22:6,2323:23 24:3,4 28:134:11

looked 19:25 24:1924:20 33:16 36:6

looking 4:18 5:1316:15 22:12 23:1826:2 33:15 43:17

looks 19:5,21lots 15:19

[guess - lots] Page 53


000079

m

ma'am 3:17machine 19:19 38:2mail 26:8 43:9,9mailed 38:22 43:10

43:11making 7:21 11:3

13:14 21:17,2022:2,9 24:25 38:4,839:13 42:12

man 13:9manpower 18:11manual 14:8map 39:10marked 6:21marks 38:25marx 1:12matching 39:8material 43:21math 10:15matter 6:10mb 1:3mean 10:20 14:23

22:10 26:7 27:532:7 35:21 36:539:7 44:5

meaning 35:18means 9:15 40:4meant 20:23mechanism 30:4member 12:15,16

13:1,21 14:24,2520:2 24:12,21,2526:23,24,24 35:2536:3,9,19

members 9:16 13:613:7,23 14:10 15:726:22 29:6,1736:25

memorandum 5:2

mercy 43:11messed 37:14miami 2:4 32:6military 43:10minute 16:25 21:11

33:9minutes 4:22mixing 39:8moot 23:16,21morning 3:15,16

3:21,24 4:2,6 5:2015:18 34:9

motion 3:12 4:3,144:17,25 5:1,11 9:2420:12 25:18 26:940:13 42:9 44:6

motion's 14:16moving 9:5multiple 22:22

n

name 3:16 22:1837:25

narrow 14:16narrowly 14:15necessarily 9:20necessary 23:11

44:22,24need 15:16 18:11

24:5 25:10needs 9:8 21:11nelson 15:8 30:6,7neutral 28:19,21

32:3 40:4never 12:23night 3:13,14 4:4nights 21:6nine 44:11noon 16:13 18:24

43:23north 1:14 2:13

note 19:3notes 48:9notice 4:7november 1:15

48:17number 7:3 18:4

24:14numbers 10:14

o

object 16:10objection 14:12observing 45:1,2obtain 4:9 16:1obviously 28:18occurred 23:3 46:7occurring 29:3

33:24 34:19office 41:6 42:10,20

45:11officer 32:1 41:3,22officers 40:14offices 5:22 7:9oh 10:6 23:25 43:12okay 3:14 5:19 7:15

7:16 9:2 14:2 15:425:16 29:16 30:2331:7 35:23 45:2146:19,22 47:1

once 32:7ones 20:10,14,21

21:18open 15:12opinion 14:1 44:14opportunity 24:10

25:12 35:6opposing 4:13order 7:9 31:5

43:16,18,20 46:24original 12:15,21

16:2,15,16 17:1519:15 23:19,24

25:20 43:21orlando 2:9oversee 17:16

29:14overview 44:1overvote 19:17

21:25 22:12,1324:23 29:13 35:1335:16 36:11 45:2446:6

overvoted 6:2124:9

overvotes 30:1737:1

p

p.a. 2:8,13pac 7:24page 9:24pair 31:12palm 1:2,13,14

2:14 28:13 29:941:17 48:4

paper 11:3,4part 20:11 21:3

23:16participate 23:11particularly 26:13parties 40:6 48:13

48:14partner 41:22party 7:7 11:20,22

40:4,6,7 41:24paying 40:20payroll 40:20pen 12:9people 15:17 28:14

28:15 31:18 36:7,736:8 37:14 41:1142:11 45:2

perfect 7:18

[ma'am - perfect] Page 54


000080

perfectly 29:17person 12:17,18,19

12:20 26:16 27:1827:18,18 31:14

personally 32:1540:22 41:3,14

phone 41:15,2042:2,24

physically 6:1228:8

picking 20:9 21:16pile 17:10 22:14

29:23 31:1 37:2pine 2:9place 1:11 9:3 12:2

43:5,24places 27:4plaintiff 1:6 2:2

9:25 25:21plural 11:13plus 14:4 40:19point 26:3 33:15portal 5:14portion 33:11position 18:19

27:24practice 24:24 29:8

31:10practices 26:6

28:10 39:17,2540:8

prepared 16:4presence 6:16 8:20

8:25 9:10,24 11:1211:13 13:20 15:2417:16 20:20 23:425:20,24 28:2533:7 39:22

present 7:22 9:839:6,9 42:1 43:1743:20

presented 21:1434:5,6 35:20

preserving 43:25press 5:12pretty 6:9 31:10private 13:13privy 20:16probably 18:3,5

44:23problem 22:15 25:9

30:23 46:19procedure 13:20

14:7 31:22proceed 4:20 6:2proceedings 1:11

3:1 47:5 48:8,10process 6:4 8:24

12:3 16:14,2317:16 18:21 19:120:15 24:5 26:1226:14 27:24 29:329:15 30:11 31:931:12,16 32:17

prong 20:13proper 16:17 18:12

30:4 35:3,7 39:15properly 6:12 8:25

19:19 33:5propose 46:14proposing 16:11,12protocol 35:7provided 17:19

21:12 46:15,16providing 29:12provisional 32:6,10public 9:16 27:25

29:6 44:20purposes 36:17

40:16pursuant 7:1

put 11:7 12:2 13:1216:19,24 17:1928:14

putting 22:13 37:1puzzled 24:24

35:24

q

query 9:16question 9:4 17:22

31:21 32:20,21questionable 17:19questions 20:21quick 16:12quickly 9:5quite 5:24

r

r 48:1race 6:21,22raises 26:3reached 4:10read 4:22 20:2 38:2reading 12:17reads 12:19ready 5:9 15:23

18:14 24:6really 11:6 20:23

24:24 27:24 42:13reason 23:22 38:14

38:20 46:2reasonable 29:17receive 25:7received 3:12 4:17

5:18 32:5,6 43:9receives 30:12receiving 43:8record 5:10 6:7

40:16recorded 7:4recounts 14:8

redo 18:16referring 19:2regard 4:6 7:14

30:16 39:21rejected 35:21rejecting 35:25relative 48:11,13relief 23:15 43:15

44:18remaining 33:16remedies 44:17remedy 15:22 16:1

28:13 44:8,18report 18:25 48:7reporter 10:22

48:6,21represent 7:24,25

32:1representation

12:5 27:7representative

11:17representatives

40:5represented 27:3representing 37:17

41:23republican 7:7

11:7 40:6request 34:25requesting 17:12

17:13require 42:14required 9:20

11:25 12:1 16:5requirement 39:22requires 20:22

32:22resolution 44:13respectfully 14:6

34:25 35:10

[perfectly - respectfully] Page 55


000081

respond 21:7responses 39:1results 18:25review 16:22 17:8

25:19 27:16,17,2030:3 35:19,2036:20,25 45:10,12

reviewed 9:7 12:629:20,21 30:18,2434:13 35:1,4

reviewing 7:2010:11 22:14 37:2

rick 1:5 3:3 7:7 8:39:14,19 17:7 26:1

right 4:13 6:7 8:178:18 10:19 11:1412:1 13:14,1614:23 15:5 16:625:5 43:16

robinson 2:8robsinson.com

2:10rodz 2:6 3:15,18,18

3:23,25 4:3,13,245:3,7,20 6:3,9 7:167:18,25 8:4,9,129:3,23 10:4,13,2110:25 11:19 15:2116:7,11 17:13,2518:2,7 20:4 21:7,921:22 22:2 23:1,2125:3,16 26:1827:11 28:7,17,2329:11 30:2,9 31:2432:5,12,24 33:1233:25 34:24 36:1538:3,7,20 39:11,1840:12 41:7,1442:22 43:2,19 45:745:13,15,20,2346:10,14,23 47:1,4

roles 27:9room 1:14 10:11

13:13 27:22rosen 41:25rules 6:25 12:2ruling 35:15run 19:18,23 20:19

38:15,19 44:9

s

sample 17:11sanctum 15:11satisfied 13:21satisfy 26:4saying 11:5,8 13:9

16:8,19 21:2322:12 24:3 27:1430:24 37:23 46:1

says 6:6 8:6 10:211:13 14:13 15:1517:5 19:22 31:940:4 43:16

scary 5:25scott 1:5 3:3 7:7 8:3

9:19 15:8 17:8 26:130:6

scott's 9:14scratch 26:1scratching 38:24screen 28:15second 20:13 44:16secret 10:10secretary 44:12section 25:17see 5:17 8:16,19

11:4 12:11 16:1618:17 27:12,2128:3 35:6 38:2243:25

seeing 4:19 5:168:13,23 27:16,1831:15,16

seek 44:18seeking 5:22 11:21

43:14seen 3:13 5:1,12

26:19 29:12sees 24:16selecting 21:18self 32:25 33:2senate 1:5 3:3 7:8

9:19 17:8 26:1sender 44:4sent 4:5,7,7 34:14separate 14:7serial 7:3serve 4:10,12served 4:3 5:15set 21:12sheriff 10:16shortly 33:23shoulder 26:2 28:1

28:3 43:18shutts 2:3 3:18 7:6

41:7,9shutts.com 2:5,5,6side 27:2sides 15:1,1signature 48:20signed 31:14 48:17similar 5:6simple 5:24 31:11simply 4:19 15:15

15:23 31:2,8 37:2438:1,18 39:2,25

single 17:23 20:4,841:19 45:10,12

sit 39:2sitting 11:5 12:8,24skedaddling 3:7slide 20:1smaller 35:14

smooth 16:12somebody 5:11

9:13,19 12:2413:10 37:18 45:1146:3

somebody's 12:9sorry 3:20sort 4:17 23:16

37:25sorts 36:8sounds 30:22 32:19south 2:3speak 31:14 33:20speaks 14:10spend 44:19spilled 38:21spoke 20:17spoken 20:6stack 21:12staff 10:25 11:3

12:6,14 13:1,6,7,2213:24 14:24,2517:14 21:10 24:1224:21,25 25:1826:22,23,24,2435:25 36:3,9,19,2539:13 40:24 41:4

stain 10:7stand 14:11 15:17

28:2 32:16standing 8:14,15

8:17,21,22 10:2126:10 42:6,10

start 6:11 16:14,2324:6 26:1,12 29:16

started 44:25starters 31:3,4state 26:21 44:13

48:3stated 10:13

[respond - stated] Page 56


000082

statement 16:1020:8 34:3

statewide 29:8stating 18:8statute 7:11,13

11:12 14:9,1316:20 17:5 20:1324:4 25:11,1428:20 30:12 31:935:3,9 36:14 39:440:3 42:14

statutory 9:9 36:139:21 42:7

step 17:3stick 39:20stickies 21:2stood 15:23 40:23

41:2stop 43:16 45:5,9straightforward

6:10street 2:9stuff 36:8submit 46:23subset 35:14substituted 6:17suffice 35:2suggest 26:13suggesting 15:16

18:23 28:12suite 2:3,9,13summons 4:9supervisor 5:22 7:8

7:20 10:5,23 11:1,212:7 13:2,3,4,8,1213:25 14:20 15:3,617:21 20:6,17 21:921:24 22:8,1123:25 24:12 25:825:13,18 28:6,1129:4 32:15 33:13

35:17 36:3 38:739:12,24 41:4 44:844:12 46:3

supervisor's 34:20supervisors 29:18

31:13sure 7:16,23 12:3

12:21 15:14 17:1718:22 20:16,2322:19 26:4 27:928:1 34:11 46:11

surveyed 29:2susan 1:8 3:3swap 15:1 27:9switch 12:18 14:25

27:4swore 41:1,10sworn 40:21

t

t 48:1,1tabulating 6:13take 7:17 20:1 22:5

23:11 33:2taken 1:11 19:13

43:24takes 17:3talk 45:23talking 32:10tandem 27:4task 18:7tasks 18:9teams 12:14 14:9

14:11 34:21tell 10:17 23:4,25

27:2,15 29:2330:19 31:16 32:9

telling 13:18 14:2427:5 33:10 35:2437:22 40:22 41:2,741:11 42:25

ten 44:11terms 23:15 24:17

31:11 32:22 33:2034:16

thank 4:23 5:5 47:147:4

thing 5:25 23:1236:11

things 7:9 14:834:17 36:6

think 3:7 5:12 6:114:18 17:10 18:326:6 29:17 30:8,2031:22,25 32:2539:13 44:23 46:16

third 4:17thought 3:6,19

31:15 36:24 42:24thousands 33:4three 43:3,4,5

44:24 45:7throw 10:7,8 35:18

36:4,19,21 46:2throwing 21:24thrown 37:6,7

40:25time 5:17 7:17 14:5

15:21 23:10 24:1926:8 32:19 34:339:21 41:16 44:1044:20,21 45:5,647:2

times 41:21 44:1144:11

today 3:25 6:177:24 21:4 23:7,19

told 36:24 41:11,2142:23 43:6,6,8,1243:12 45:7

tomorrow 16:1318:24 43:24

topic 39:20touch 28:5,5,8touching 8:23transcript 48:8transcription 48:9transpiring 41:25transposed 16:17tried 10:13 44:7,7trio 31:13troublesome 22:10troubling 25:2true 6:14 22:8 27:6

30:20,22 41:1,1048:8

trust 15:20truthfully 24:13try 44:8trying 4:9 18:12two 7:9 13:23 21:6

31:17 35:11 39:11type 23:6

u

understand 16:2,921:14 40:16

understanding20:18 22:16 23:1831:10 34:10,18

understands 12:3undervote 19:18

22:13 24:22,2329:12 35:13,1636:11 45:24 46:5

undervoted 6:2224:9

undervotes 21:2530:17 37:2

unequivocal 22:425:14

unequivocally29:24 32:2

[statement - unequivocally] Page 57


000083

unilaterally 13:1422:9 26:16 35:1742:12

urgent 45:5use 10:19

v

v 3:3valid 6:23verification 27:2verified 21:16

27:12,13 40:12,13violation 7:13volunteers 15:20vote 11:7,24 14:12voter 21:11 22:7

36:11 38:13votes 6:23 37:5vs 1:7

w

wait 17:6 19:7 42:4walk 27:22walker 2:13want 4:21 5:3

11:24 17:7,11,2226:11 30:10 37:1241:10 42:15 44:945:5,10,11,14,15

wanted 24:3 28:17wants 28:15warehouse 15:12

33:24 34:20watch 15:18 20:2

32:16watched 40:23watching 10:9

12:17 41:6 42:6,1142:21

water 10:7way 11:9 29:25

30:5,10 43:23

we've 8:12 9:518:14 27:17,2032:5,6,17 36:744:16

west 1:14 2:1441:17

willing 15:23 18:14window 42:11wish 30:15witness 7:10 8:10

8:10,10,20,25 9:129:21 11:12,2112:13 13:10,19,2215:15,24 23:325:21 26:11,17,1926:21 28:10,16,1828:19,21,25 31:932:25 33:2 39:1739:24 40:4 41:1443:17,20 44:2,246:4,4

witnessed 12:23,2513:20 14:17 26:532:3 41:3,12 42:1745:6 46:3

witnesses 6:16 7:228:6,8 9:8,10,15,2510:1,3,12 11:13,1511:16,23 12:7 13:413:20 14:13 15:2417:17 20:21 23:425:25 26:20 29:732:4 33:8 39:6,9,2340:11,15,17,2441:13 42:8,15 45:3

witnessing 12:814:3,21,22,25 15:119:9 27:1 32:22,2435:12 39:19 43:1

words 13:3

work 14:3,21,2215:2 39:17 44:7,14

working 34:22works 28:11 44:12writing 8:15,16written 21:1wrong 38:10 40:9

42:21

x

x 36:7xxxx 1:3

y

yeah 19:8,20 35:2237:9

z

zimmerman 2:114:1 32:14

[unilaterally - zimmerman] Page 58


000084

IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT


RICK SCOTT FOR SENATE, CASE NO.: 502018CA014075XXXXMB

Plaintiff, DIVISION: AA

v.

PALM BEACH COUNTY SUPERVISOR

OF ELECTIONS, SUSAN BUCHER;

in her official capacity as Palm Beach

County Supervisor of Elections,

Defendant.

________________________________________/

ORDER ON PLAINTIFF’S VERIFIED EMERGENCY MOTION FOR A TEMPORARY

INJUNCTION

THIS MATTER came before the Court on November 9, 2018 on Plaintiff, Rick Scott

for Senate’s (“Plaintiff”) Verified Emergency Motion for a Temporary Injunction (“Motion”).

The Court has considered the Motion, Plaintiff’s Verified Complaint for Declaratory and

Injunctive Relief (“Complaint”), the parties’ arguments made at the November 9, 2018 hearing,

the case file, and the applicable law.

Plaintiff requests declaratory and injunctive relief as well as a temporary injunction. In

the Complaint, Plaintiff requests declaratory and injunctive relief regarding the manner in which

the Supervisor of Elections processed physically damaged, “overvoted,” and “undervoted”

absentee ballots. In the Motion, Plaintiff further seeks a temporary injunction ordering: (1) the

Supervisor’s staff review the duplicate ballot together with the original damaged ballot in the

presence of the Plaintiff and any other witnesses, require the objected to duplicate ballots in

question to be set aside for immediate review by the Canvassing Board once the review process

is complete of all physically damaged absentee ballots and duplicate ballots; and (2) to allow the

000085

Palm Beach County Canvassing Board to determine valid votes from “overvoted” and

“undervoted” absentee ballots.

After due consideration and in accordance with section 101.5614, Florida Statutes, it is

hereby

ORDERED that Defendant SHALL provide to the County Canvassing Board any

duplicate ballots and any “overvoted” or “undervoted” ballots that have not yet been provided to

the Board for its review no later than 10:00 a.m., Saturday, November 10, 2018.

DONE AND ORDERED at West Palm Beach, Florida, this 9th day of November 2018.

_____________________________

KRISTA MARX

Circuit Judge

Copies furnished to:

Aliette Rodz, Esq.

(Counsel for Rick Scott For Senate)

200 South Biscayne Blvd., Suite 4100

Miami, FL 33131


[email protected]

Andrew J. Baumann, Esq.

(Counsel for Palm Beach County Supervisor of Elections)

515 N. Flagler Dr., Ste. 1500



[email protected]


(Counsel for Rick Scott for Senate)

301 E. Pine Street

Orlando, FL 32801


000086

01060084-2




Plaintiff,

v.

SUSAN BUCHER, solely in her capacity

as Supervisor of Elections of Palm Beach

County, Florida

Defendant.

/

Case No.: 502018CA014075XXXXMB

Division: Krista Marx

EMERGENCY MOTION FOR RECONSIDERATION, STATUS CONFERENCE,

AND EMERGENCY STAY

COMES NOW, Defendant, SUSAN BUCHER, solely in her capacity as Supervisor of

Elections of Palm Beach County, Florida (Defendant Bucher), by and through her undersigned

counsel, and files this Emergency Motion for Reconsideration, Status Conference, and Emergency

Stay, in support thereof states as follows:

1. Plaintiff’s Emergency Motion for Temporary Injunction and Verified Complaint for

Declaratory and Injunctive Relief (Emergency Motion) was filed with the Court at 7:39 pm last night,

November 8, 2018. The Plaintiff seeks declaratory and injunctive relief concerning the canvassing

of over-voted and under-voted absentee ballots during the election and the preparation of

duplicated damaged ballots.

2. Defendant Bucher was provided a copy of the suit at 9:24 pm last night, November

8, 2018. A copy was not provided to the undersigned, Defendant Bucher’s longtime counsel of

record, by any means. In fact, Plaintiff’s counsel had been present during the canvassing and was

aware the undersigned was counsel for Defendant Bucher.

Filing # 80630882 E-Filed 11/09/2018 03:55:15 PM

000087

Rick Scott for Senate v. Susan Bucher, et al.

Case No. 502018CA014075XXXXMB

Emergency Motion for Reconsideration, Status Conference and Emergency Stay

01060084-2 2

3. At 9:44 am, today, November 9, 2018, Plaintiff served Defendant Bucher, once

again failing to provide any copy or notice to the undersigned, with a Notice of Hearing, noticing

Plaintiff’s Emergency Motion for a hearing 45 minutes later at 10:30 am. In fact, the summons for

Defendant Bucher was not issued until 11:50 am, November 9, 2018, which is attached hereto as

Exhibit A.

4. The undersigned attended a separate General Election-related matter at 10:30 am on

November 9, 2018, only to be informed that a second hearing had been scheduled in the above-

referenced matter. The undersigned advised the Court that he was unaware of the hearing in this

matter and had not been provided or seen the Emergency Motion.

5. At the hearing, Plaintiff relied on an affidavit. However, the undersigned had not

seen an affidavit prior to the hearing, no copy of the affidavit was provided at the hearing, and it does

not appear that an affidavit was attached to any of Plaintiff’s pleadings.

6. Due to the immediacy of the hearing on Plaintiff’s Emergency Motion and the

ongoing canvassing of the November 6, 2018, General Election, Defendant was not able to be present

at the hearing to provide the Court with insight into the feasibility of Plaintiff’s requested relief.

7. At the conclusion of the hearing, the Court ordered that over-voted and under-voted

ballots which had not been presented to the Canvassing Board, but which instead had been

processed and duplicated by staff, be presented to the Canvassing Board by 10:00 a.m. tomorrow,

November 10, 2018.

8. The undersigned was unaware of how many absentee ballots were at issue or how

long it would take to locate said ballots and present them to the Canvassing Board, but committed to

the Court to comply with the Court’s order.

000088




01060084-2 3

9. Upon return to the ongoing canvass, the undersigned was informed that nearly all

duplicate ballots (whether directly presented to the Canvassing Board or otherwise processed by

the Supervisor’s staff) have already been intermixed into the stream of ballots and are already

included in the vote tally. The undersigned has been informed that it is not possible to determine

which duplicate ballots were presented to the canvassing board and which duplicate ballots were

processed by staff or to separate the latter from the former. The undersigned was further advised

that it is physically impossible to locate, separate and re-canvass the ballots at issue before the

noon statutory deadline tomorrow, November 10, 2018, for certifying the election results to the

Department of State.

10. Accordingly, it is necessary to re-address the Court’s ruling in this case on an

emergency basis given the 12:00 p.m. deadline tomorrow, November 10, 2018, for certifying

election results to the Department of State. The Defendant respectfully requests an emergency

hearing either in person or via telephone to address the inability to meet the Court’s ruling and

complying with the statutory deadline for certifying results.

WHEREFORE, Defendant, SUSAN BUCHER, solely in her capacity as Supervisor of

Elections of Palm Beach County, Florida, respectfully requests that this Court reconsider its prior

ruling, allow the parties to come before the Court on alternative relief, and stay this proceeding until

after the 12:00 pm deadline on November 10, 2018, for certifying election results to the Department

of State.




000089




01060084-2 4

Aliette D. Rodz, Esquire

Shutts & Bowen LLP

200 S. Biscayne Blvd, Suite 4100

Miami, FL 33131

(305) 347-7342


Attorney for Plaintiff

George T. Levesque, Esquire

Leslie Arsenault Metz, Esquire

Jason Zimmerman, Esquire

Jeff Aaron, Esquire

GrayRobinson, P.A.



(561) 268-5727


[email protected]

[email protected]

[email protected]

/s/ Andrew J. Baumann

Andrew J. Baumann


Primary Email: [email protected]

Secondary Email: [email protected]

Rachael B. Santana




Lewis, Longman & Walker, P.A.


West Palm Beach, Florida 33401

Telephone: (561) 640-0820

Facsimile: (561) 640-8202

NATALIE A. KATO


Primary email: [email protected]

Secondary email: [email protected]


315 South Calhoun Street, Suite 830

Tallahassee, FL 32202

Telephone: (850) 222-5702

Counsel for Defendants

000090

mailto:[email protected]











EXHIBIT "A"

Filing# 80604174 E-Filed 1 1/09/2018 11:50:56 AM

IN THE CIRCUIT COURT OF THE 1 5™JUDICIAL CIRCUIT, IN AND FORPALM BEACH COUNTY, FLORIDA

CASE NO. 50-201 8-CA-014075


Plaintiff,

v.


Supervisor of Elections of Palm Beach County,

Florida,

Defendant.

SUMMONS

THE STATE OF FLORIDA

TO EACH SHERIFF OF THE STATE:

YOU ARE COMMANDED to serve this summons and a copy of the Complaint forDeclaratory & Injunctive Relief and Emergency Motion for Temporary Injunction in this actionon Defendant:

TO: SUSAN BUCHER, solely in her capacity as

Supervisor of Elections of Palm Beach County, Florida

240 South Military Trail


'"«§S:

IMPORTANT

Each Defendant is required to serve written defenses to the Complaint on PlaintiffsAttorneys, Aliette D. Rodz, Esq., c/o Shutts & Bowen LLP, 200 Biscayne Blvd, Suite 4100,Miami, FL 33131, within 20 days after service of this summons on Defendant, exclusive of theday of service, and to file the original of the defenses with the Clerk of this Court at Circuit CivilDivision of Palm Beach County, 205 North Dixie Highway, West Palm Beach, Florida 33401either before service on Plaintiff s attorneys or immediately thereafter. If you fail to do so, adefault will be entered against you for the relief demanded in the Complaint.

SHARON R. BOCKNov 09 2018DATED: ,2018

Clerk of the Court, Palm Beach County

§1111(COURT SEAL)

Deputy ClerkJ®

JOSIE LUCCE

EXHIBIT "A"FILED: PALM BEACH COUNTY, FL, SHARON R. BOCK, CLERK, 11/09/2018 11:50:56 AM

000091

IMPORTANTE

Usted ha sido demandado legalmente. Tiene veinte (20) dias, contados a partir del recibode esta notificacion, para contestar la demanda adjunta, por escrito, y presentarla ante estetribunal. Una llamada telefonica no lo protegera; si usted desea que el tribunal considere sudefensa, debe presentar su respuesta por escrito, incluyendo el numero del caso y los nombres delas partes interesadas en dicho caso. Si usted no conlesta la demanda a tiempo, pudiese perder elcaso y podria ser despojado de sus ingresos y propiedades, o privado de sus derechos, sin previoaviso del tribunal. Existen otros requisitos legales. Si lo desea, puede usted consultar a unabogado immediatemente. Si no conoce a un abogado, puede llamar a una de las oficinas deasistencia legal que aparecen en la guia telefonica.

Si desea responder a la demanda por su cuenta, al mismo tiempo en que presenta su

respuesta ante el tribunal, debera usted enviar por correo o entregar una copia de su respuesta a lapersona denominada abajo como "Plaintiff/Plaintiffs Attorney." (Demandate o Abogado delDemanadante).

IMPORTANT

Des poursuites judiciaries ont ete entreprises contre vous. Vous avez 20 jours consecutifsa partir de la date de l'assignation de cet'te citation pour deposer une reponse ecrite a la plainteci-jointe aupres de ce Tribunal. Un simple coup de telephone est insuffisant pour vous protegar;vous etes oblige de deposer votre reponse ecrite, avec mention du numero de dossier ci-dessus etdu nom des parties nommees ici, si vous souhaitez que le Tribunal entende votre cause. Si vousne deposez pas votre reponse ecrite dans le relai requis, vous risquez de perdre la cause ainsi que

votre salaire, votre argent, et vos biens peuvent etre saisis par la suite, sans aucun preavisulterieur du Tribunal. II y a d'autres obligations juridiques et vous pouvez requerir les services

immediats d'un avocat. Si vous ne connaissez pas d'avocat, vous pourriez telephoner a unservice de reference d'avocats ou a un bureau d'assistance juridique (figurant a l'annuaire detelephones).

Si vous choisissez de deposer vous-meme une reponse ecrite, il vous faudra egalement,en meme temps que cette fonnalite, faire parvenir ou expedier une copie au carbone ou une

photocopie de votre reponse ecrite au "Plaintiff/Plaintiffs Attorney" (Plaignant ou a son avocat)nomme ci-dessous.

Plaintiffs Attorney:

ALIETTE D. RODZ, ESQ.

PRIMARY: [email protected]

SECONDARY: [email protected]

[email protected]

Shutts & Bowen LLP

200 Biscayne Blvd., Suite 4100

Miami, Florida 33131

305-358-6300

000092




Plaintiff,

v.



County, Florida,

Defendant.

CASE NO. 502018CA014075

JUDGE KRISTA MARX

NOTICE OF FILING HEARING TRANSCRIPT OF NOVEMBER 10, 2018

Plaintiff, RICK SCOTT FOR SENATE, through counsel, hereby gives notice of filing

the hearing transcript of the hearing which took place before the Honorable Krista Marx on

November 10, 2018.

Dated: November 13, 2018


/s/ Aliette D. Rodz





Miami, FL 33131

Office: (305) 347-7342

Facsimile: (305) 347-7742

-and-



Filing # 80752809 E-Filed 11/13/2018 07:41:48 PM

000093

Notice of Filing Hearing

Transcript of November 10, 2018

CASE NO. 502018CA014075

2








robinson.com

Jeff Aaron, Esq.



GRAYROBINSON, P.A.



Office: (561) 268-5727

Facsimile: (561) 886-4101



I HEREBY CERTIFY that a true and correct copy of the foregoing was served via E-

Portal Electronic Filing this 13th day of November, 2018.

000094

·1· · ·IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT· · · · · · · IN AND FOR PALM BEACH COUNTY, FLORIDA·2

·3· ·RICK SCOTT FOR SENATE,

·4· · · · ·Plaintiff,

·5· ·vs.· · · · · · · · · · · · · · · CASE NO.:

·6· ·SUSAN BUCHER, SUPERVISOR OF· · ·ELECTIONS FOR PALM BEACH,·7· · · · · ·Defendant.·8· ·____________________________/

·9

10· · · · · · · · · · · · · · HEARING

11

12· · · ·BEFORE:· · · · · HONORABLE KRISTA MARX

13· · · ·DATE:· · · · · · November 10, 2018

14· · · ·PLACE:· · · · · ·Palm Beach County· · · · · · · · · · · · · Criminal Justice Complex15· · · · · · · · · · · · 3228 Gun Club Road· · · · · · · · · · · · · West Palm Beach, Florida 3340616· · · · ·TIME:· · · · · · 8:32 a.m. to 9:13 a.m.17· · · · ·REPORTED BY:· · ·Amanda Thomas18· · · · · · · · · · · · Digital Court Reporter

19· · · ·TRANSCRIBED BY:· Tonya L. Mistretta, Registered Nurse· · · · · · · · · · · · · Court Reporter and Notary Public20· · · · · · · · · · · · State of Florida at Large

21

22

23

24

25

000095

http://www.orangelegal.com

·1· ·APPEARANCES:

·2· · ·ALIETTE RODZ, ESQUIRE·3· ·Shutts & Bowen, LLP· · ·200 South Biscayne Boulevard·4· ·Suite 4100· · ·Miami, Florida 33131-2362·5· ·(305) 358-6300, FAX (305) 381-7742· · ·[email protected]·6· · · · · · · · ·Appeared on behalf of Plaintiff·7

·8· ·BENJAMIN JOHN GIBSON, ESQUIRE· · ·JASON B. GONZALEZ, ESQUIRE·9· ·Shutts & Bowen, LLP· · ·215 South Monroe Street10· ·Suite 804· · ·Tallahassee, Florida 32301-185811· ·(850) 241-1717· · ·[email protected]· ·[email protected]

13· · · · · · · ·Appeared on behalf of Plaintiff

14· · ·ANDREW BAUMANN, ESQUIRE15· ·Lewis, Longman & Walker, P.A.· · ·515 North Flagler Drive16· ·Suite 1500· · ·West Palm Beach, Florida 33401-432717· ·(561) 640-0820, FAX (561) 640-8202· · ·[email protected]· · · · · · · · ·Appeared on behalf of Defendant19

20· ·NATALIE ANNE KATO, ESQUIRE· · ·Lewis, Longman & Walker, P.A.21· ·315 South Calhoun Street· · ·Suite 83022· ·Tallahassee, Florida 32301-1872· · ·(850) 222-5702, FAX (850) 224-924223· ·[email protected]

24· · · · · · · ·Appeared on behalf of Defendant

25

000096


·1· ·APPEARANCES CONTINUED:

·2· · ·ALSO PRESENT:·3

·4· ·JONATHAN HART, ESQUIRE· · ·KEVIN ROSEN, ESQUIRE·5· ·Shutts & Bowen, LLP· · ·525 Okeechobee Boulevard·6· ·Suite 1100· · ·West Palm Beach, Florida 33401-6351·7· ·(561) 650-8525, FAX (561) 822-5528· · ·[email protected]·8· ·[email protected]

·9· · ·JASON ZIMMERMAN, ESQUIRE10· ·GrayRobinson, P.A.· · ·301 East Pine Street11· ·Suite 1400· · ·Orlando, Florida 32801-274112· ·(407) 244-5669· · ·[email protected]

14· ·SUSAN BUCHER

15

16

17

18

19

20

21

22

23

24

25

000097


·1· · · · · · · · · · · · · I N D E X

·2· · · · · · · · · · · · · · · · · · · · · · · · · · PAGE

·3· ·PROCEEDINGS· · · · · · · · · · · · · · · · · · · ·5· · ·CERTIFICATE OF REPORTER· · · · · · · · · · · · · ·43·4· ·CERTIFICATE OF TRANSCRIPTION· · · · · · · · · · · 44

·5

·6

·7

·8· · · · · · · · · · · E X H I B I T S

·9· · ·NO.· ·DESCRIPTION· · · · · · · · · · · · · · · PAGE

10· · · · · ·None marked

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

000098


·1· · · · · · · · P R O C E E D I N G S

·2· · · · THE COURT:· Okay.· We're here for defendant's

·3· ·motion for a reconsideration and stay.

·4· · · · Let's just be as concise as we possibly can.

·5· · · · I ordered yesterday that all damaged ballots

·6· ·that have been duplicated be provided to the

·7· ·Canvassing Board.

·8· · · · So I have reviewed your motion and it seems as

·9· ·though you're indicating to me that that will

10· ·virtually be impossible.

11· · · · MR. BAUMANN:· Yes, Your Honor, beyond virtual.

12· · · · THE COURT:· Pardon me?

13· · · · MR. BAUMANN:· Beyond virtual, Your Honor.· Upon

14· ·exploration it turned out to be impossible.

15· · · · Your Honor may recall that when we met

16· ·yesterday we were here on one case, and then I got

17· ·up to leave and you informed me that we had another

18· ·hearing, which I had not received notice of.

19· · · · THE COURT:· Well, here's the thing.· I don't

20· ·want to mess around with that --

21· · · · MR. BAUMANN:· No --

22· · · · THE COURT:· -- because frankly, there was

23· ·service, and these are emergency matters.· So we all

24· ·know the wheels of justice move slow, and in the

25· ·normal world it would be weeks before you would be

000099


·1· ·before the Court.

·2· · · · So I don't want to argue that.· I don't find

·3· ·that that's a good argument.· I want to get right to

·4· ·the crux of it --

·5· · · · MR. BAUMANN:· The crux of it --

·6· · · · THE COURT:· -- which is -- okay.· Let's start

·7· ·with this, from the affidavits I've reviewed, it

·8· ·appears that there's about 650 ballots in question.

·9· ·Is that accurate?

10· · · · MR. BAUMANN:· I am -- I don't know, Your Honor.

11· ·I don't know where they got that number from.

12· · · · THE COURT:· Well, I have it in a sworn

13· ·affidavit from the plaintiff that they were told

14· ·that there were approximately 650 ballots in play

15· ·here.

16· · · · MR. BAUMANN:· And I have Ms. Bucher, the

17· ·supervisor of elections, here with me.

18· · · · Because of the way the hearing unfolded

19· ·yesterday, I wanted to make sure that I could give

20· ·you as much information as possible.· I'm looking at

21· ·Ms. Bucher as well.

22· · · · I don't know how many ballots we're actually

23· ·talking about if that's in the ballpark or not.

24· · · · THE COURT:· Okay.· Ms. Bucher, do you wish to

25· ·give testimony?

000100


·1· · · · MS. BUCHER:· Yes.

·2· · · · THE COURT:· Yes?

·3· · · · MS. BUCHER:· Yes.

·4· · · · THE COURT:· Okay.· Could you please stand?

·5· ·Raise your right hand.· Do you swear to tell the

·6· ·truth, the whole truth, and nothing but the truth so

·7· ·help you God?

·8· · · · MS. BUCHER:· I do.

·9· · · · THE COURT:· All right.· Let me see if I can get

10· ·some clarification then, ma'am.· How are you today?

11· · · · MS. BUCHER:· Fine.· Good morning.

12· · · · THE COURT:· Good morning.

13· · · · MS. BUCHER:· We have completed our election

14· ·results.· We're ready to submit the deadlines today

15· ·at noon as defined.

16· · · · Madam Judge, when ballots run through the

17· ·tabulator machine are out stacked if they are not

18· ·properly voted and then they are taken over and we

19· ·duplicate a new ballot card so that we can try and

20· ·interpret the intent of the voters.

21· · · · We don't really monitor how many of those.· We

22· ·have 500,000 ballots with two cards.· And so I

23· ·didn't monitor how many.· We have a number sequence.

24· ·And so I can get you that number, but I don't have

25· ·it this morning.

000101


·1· · · · THE COURT:· So in your opinion we're talking

·2· ·about simply damaged ballots that wouldn't function

·3· ·when placed into the machine?

·4· · · · MS. BUCHER:· That's correct.· What happens is

·5· ·when the voter does not vote correctly, they circle

·6· ·the names and don't connect the arrows or they

·7· ·provide an arrow outside of where they're supposed

·8· ·to connect the arrows, the law does allow that we

·9· ·try and duplicate the voter's intent, and so we --

10· · · · THE COURT:· Okay.

11· · · · MS. BUCHER:· -- try to save their votes.

12· · · · THE COURT:· Overvotes, undervotes, and simply

13· ·damaged ballots.· And are these mail-in ballots that

14· ·we're talking about or --

15· · · · MS. BUCHER:· Mail in.

16· · · · THE COURT:· -- just strictly mail-in ballots?

17· · · · MS. BUCHER:· Yes.

18· · · · THE COURT:· All right.· The plaintiff has

19· ·represented in a sworn affidavit that in conversing

20· ·over the course of the last few days with your

21· ·office that they were told that this amount of

22· ·damaged or overvote, undervote category of mail-in

23· ·ballots was about 650.

24· · · · MS. BUCHER:· Madam Judge, the number would be

25· ·much more substantial, and I don't know where they

000102


·1· ·got that number.· They did not receive that number

·2· ·from my office.· We don't have that number.· We

·3· ·don't track that.

·4· · · · We're in a hurry to get our election results,

·5· ·and so we just want to duplicate the ballots as

·6· ·quickly as possible, run them back through so we can

·7· ·count them to meet our deadline.

·8· · · · THE COURT:· All right.· And so you say that the

·9· ·law allows your office -- again, when I was reading

10· ·these sworn affidavits, it appears from the

11· ·witnesses that were some 15 feet away from where the

12· ·damaged or overvoted, undervoted ballots were being

13· ·duplicated that --

14· · · · How many staff members would you say that you

15· ·had that were doing this duplication process?· The

16· ·affidavit seems to indicate some 30 or 40

17· ·individuals on your staff were doing this.

18· · · · MS. BUCHER:· That's incorrect, Madam Judge.· We

19· ·usually had about three to four teams of two people,

20· ·and the process was that they would call out the

21· ·indication that was clear and -- but before we

22· ·started that process, we trained all of the staff

23· ·and they had the rule indicating voter intent is

24· ·1S-2.027 --

25· · · · THE COURT:· Did somebody bring me a copy of

000103


·1· ·that?

·2· · · · MS. BUCHER:· I did.

·3· · · · THE COURT:· And have you reviewed that rule

·4· ·that says that they can do that?

·5· · · · MS. RODZ:· No.

·6· · · · THE COURT:· Do you have a copy for the

·7· ·plaintiff?· Do you have a copy for counsel?

·8· · · · MR. BAUMANN:· I don't know.· Ms. Bucher brought

·9· ·the rule.

10· · · · MS. BUCHER:· No.· I only have one copy here.

11· · · · THE COURT:· And what paragraph are you

12· ·referring to in this rule?

13· · · · MS. BUCHER:· The entire demonstration indicates

14· ·a clear intent of the voter, and so what we did is

15· ·we sat the staff down, provided each member with a

16· ·copy --

17· · · · THE COURT:· Let me just take a look at this

18· ·real quick.· All right.· And I'm looking at language

19· ·here in Paragraph 4B which says, "The Canvassing

20· ·Board must first look at the entire ballot for

21· ·consistency."· So did that occur?

22· · · · MS. BUCHER:· Well, no.· What occurred is that

23· ·we met as a Canvassing Board and we adopted a

24· ·standard that many of my colleagues in the large

25· ·counties use.

000104


·1· · · · And this is the first year I've adopted that

·2· ·standard, but I got the standard because it is a

·3· ·standard that are used in many of the other large

·4· ·counties.

·5· · · · And so we adapted a rule to indicate that we

·6· ·would train the staff in accordance with the

·7· ·demonstrations of what a true vote is.

·8· · · · And they would review the ballots, and if the

·9· ·ballot had clear intent, then they would duplicate

10· ·the ballots and our senior management staff would

11· ·quality control those, they would review those and

12· ·make determinations as to which ones needed to go to

13· ·the Canvassing Board.

14· · · · We also directed those staff -- minimal staff,

15· ·we had four tables at any time doing this, and so we

16· ·would have a senior staff member there present at

17· ·all times monitoring, and if -- they were told that

18· ·if they had any kind of questionable issue, they

19· ·would just set it aside and send it to the

20· ·Canvassing Board, and they did that.

21· · · · And so I have some demonstration ballots that I

22· ·can present to you to show you what the --

23· · · · THE COURT:· No.· Here's what I want to know,

24· ·not that I'm busy.· I want to make sure that every

25· ·vote is properly counted.

000105


·1· · · · I'm looking at the rule, and it says, "The

·2· ·Canvassing Board must first look at the entire

·3· ·ballot for consistency."

·4· · · · And I'm also looking at the statute that says,

·5· ·"When this process is going on that --" and during

·6· ·the duplication process -- "it must be witnessed."

·7· · · · So how many staff members from your office were

·8· ·charged with reviewing this number that you can't

·9· ·tell me of how many it was, how many staff members

10· ·were charged with reviewing them and making a

11· ·determination of whether or not the ballot needs to

12· ·be duplicated?

13· · · · MS. BUCHER:· I would say that at any one time

14· ·there would be about 12 people.

15· · · · THE COURT:· How many people in your staff in

16· ·its entirety were charged with that task?

17· · · · MS. BUCHER:· Well, two senior staff members and

18· ·then four tables of duplicators.

19· · · · THE COURT:· And how many people -- what's the

20· ·number?· How many people under your employment?

21· · · · MS. BUCHER:· Ten.

22· · · · THE COURT:· Ten?

23· · · · MS. BUCHER:· Ten to 12 at any one time.

24· · · · THE COURT:· And would it be your sworn

25· ·testimony that when this was occurring it was always

000106


·1· ·witnessed or it was always done in tandem?

·2· · · · MS. BUCHER:· Yes, ma'am.

·3· · · · THE COURT:· And that there was never a time

·4· ·that just one single solitary person from your

·5· ·office was looking at a ballot and saying overvote,

·6· ·undervote?

·7· · · · MS. BUCHER:· Absolutely not.· We also have --

·8· · · · THE COURT:· Wait.· Okay.· So then after these

·9· ·four tables of in tandem workers reviewed the

10· ·ballots, is it your testimony that your two senior

11· ·staff members reviewed their work?

12· · · · MS. BUCHER:· That's correct.

13· · · · THE COURT:· Okay.· So then tell me -- you say

14· ·that you adopted this policy this year because

15· ·that's what large counties do.

16· · · · So it seems to circumvent the mandatory

17· ·language that says both in the statute and the rule

18· ·that isn't up to you, because that's who your staff

19· ·is, to make the determination of undervotes,

20· ·under -- overvotes and damaged ballots, but rather

21· ·it's the Canvassing Board's job.

22· · · · So you said that it was compliant with the law.

23· ·From what I'm reading it's not.

24· · · · So tell me why you think your interpretation of

25· ·what you adopted from these other Supervisors of

000107


·1· ·Elections somehow excepts you from the requirement

·2· ·that the Canvassing Board makes the determination.

·3· · · · MS. BUCHER:· I didn't think that it excepted me

·4· ·from the law, but what I thought is that we had the

·5· ·clear intent to allow clerical staff to assist the

·6· ·Canvassing Board.

·7· · · · We train that clerical staff.· We have motion

·8· ·cameras.· We had some attorneys sitting there for

·9· ·almost three days that didn't say anything, and we

10· ·walked them through the area.

11· · · · We have a very secure facility, and I explained

12· ·to them that really I couldn't let them wander

13· ·through an area where there were ballots, and so

14· ·they seemed pretty content.

15· · · · I did offer them that they could order a copy

16· ·of the motion camera tapes and review them.· They

17· ·had a clear vision of where those people were,

18· ·although be it 15 feet away, and that's what's

19· ·really --

20· · · · THE COURT:· So they really couldn't see

21· ·anything other than people had a pen and were

22· ·duplicating something.

23· · · · So they -- they -- there was no other witness

24· ·to the accuracy of the duplication process or the

25· ·interpretation of the voter intent other than your

000108


·1· ·staff; is that correct?

·2· · · · MS. BUCHER:· Well, I felt more comfortable

·3· ·because we do have motion cameras and they're

·4· ·recording at all times, and if anybody had any kind

·5· ·of questionable issue, we can roll the tape and show

·6· ·exactly what they were doing.

·7· · · · MS. RODZ:· Your Honor, if I may provide you

·8· ·with a demonstrative so that you can see what's

·9· ·being depicted because this is the actual --

10· · · · THE COURT:· Yeah.· That was attached to your

11· ·motion, right?

12· · · · MS. RODZ:· Yes.· That's correct.

13· · · · THE COURT:· So that basically shows where the

14· ·witnesses were standing?

15· · · · MS. RODZ:· Right behind the ropes.

16· · · · THE COURT:· Okay.· So these tapes that you

17· ·speak of, I mean, would they have been honed in on

18· ·the work being done by your staff?

19· · · · So in other words, if the plaintiff wanted

20· ·these tapes, would they be able to say, "Oh, look,

21· ·this looks like they didn't connect the lines and

22· ·I've got to assume that that's what the voter intent

23· ·was and I'm going to duplicate it," or would it just

24· ·be the busy bees at a table?

25· · · · MS. BUCHER:· I really don't know.· I haven't

000109


·1· ·reviewed those kinds of tapes in the past.

·2· · · · THE COURT:· So obviously then the statute then

·3· ·requires whenever this duplication process is

·4· ·occurring that you are charged with keeping the

·5· ·original damaged undervoted, overvoted ballot and

·6· ·that each of those ballots must have a serial number

·7· ·attached to it and must be duplicate -- the

·8· ·duplicate ballot must be clearly marked "duplicate,"

·9· ·correct?


11· · · · THE COURT:· And you did that in each instance?

12· · · · MS. BUCHER:· Yes, ma'am.

13· · · · THE COURT:· And did you keep a tally of how

14· ·many ballots we're talking about?

15· · · · MS. BUCHER:· We did.· I haven't reviewed that

16· ·tally.· We were in a hurry to conduct our election

17· ·and conclude the results, and I have not reviewed

18· ·those sheets.

19· · · · THE COURT:· So you contest the plaintiff's

20· ·allegation that the amount is some 650 and in your

21· ·estimation you believe it to be a much larger

22· ·amount?


24· · · · THE COURT:· But you could readily provide that

25· ·information because, in fact, you complied with the

000110


·1· ·statute and have a running list of each and every

·2· ·damaged overvoted or undervoted ballot?

·3· · · · MS. BUCHER:· Yes, ma'am, but after we duplicate

·4· ·the ballots, when we run the ballot -- the good

·5· ·ballots through, we store the duplicates and then we

·6· ·interfile the voted ballots that we duplicated into

·7· ·their proper precinct so that we can prepare for the

·8· ·three statewide recounts and then the State House

·9· ·recount that we have right now.· So we interfiled

10· ·those ballots into almost 1,000 boxes of ballots.

11· · · · THE COURT:· All the duplicate ballots are

12· ·intermixed?


14· · · · THE COURT:· And where are the originals?

15· · · · MS. BUCHER:· The originals are being stored in

16· ·number sequence.

17· · · · THE COURT:· And you have them locked away

18· ·someplace?

19· · · · MS. BUCHER:· Yes, ma'am.

20· · · · THE COURT:· All right.· So certainly your

21· ·office could pair them up with the duplicate ballot?

22· · · · MS. BUCHER:· Yes, ma'am, we could.· We estimate

23· ·that it would take about two to three days.

24· · · · We would need to go through every single box of

25· ·ballots and locate the duplicated ballots that are

000111


·1· ·in numbered sequence and we can identify them.· It

·2· ·just would take a much longer time frame in the time

·3· ·that we have very large time constraints

·4· ·(inaudible).

·5· · · · THE COURT:· Okay.· Do you have any questions?

·6· · · · MS. RODZ:· I do, Your Honor.· This order was

·7· ·issued by the Court and a ruling was obtained.

·8· ·Certainly.

·9· · · · THE COURT:· I'll just have you state your name

10· ·for the record.

11· · · · MS. RODZ:· Yes.· And if I may state who's here,

12· ·Your Honor, since we didn't do appearances for the

13· ·record.

14· · · · Aliette Rods from Shutts & Bowen on behalf of

15· ·the plaintiff together with my colleague Ben Gibson,

16· ·my co-counsel Jason Zimmerman.· I also have here

17· ·Jason Gonzalez with Shutts & Bowen, and we have the

18· ·two witnesses, Jonathan Hart and Kevin Rosen, also

19· ·present here in an abundance of caution, Your Honor.

20· · · · THE COURT:· Okay.

21· · · · MS. RODZ:· The Court issued a ruling and an

22· ·order.· I would like to understand what has been

23· ·done to actually proceed and comply with that order

24· ·since there is no stay issued.

25· · · · MS. BUCHER:· We have taken a look at how we

000112


·1· ·would conduct going through those boxes and locating

·2· ·those duplicate ballots.· We're prepared to do so as

·3· ·soon as possible.

·4· · · · MS. RODZ:· Did you start doing that in

·5· ·compliance with this Court's order and start doing

·6· ·it so that we can say, okay, in an hour we have

·7· ·started pulling out and we only have five out of

·8· ·10,000 boxes?· Has any effort been done to comply

·9· ·with the Honorable Court, Judge Marx's order?

10· · · · MS. BUCHER:· We have done our very best to take

11· ·a look at a plan to do so, but obviously we were

12· ·canvassing ballots until about 11:30 last night to

13· ·meet our deadline of noon today, and we're prepared

14· ·to start immediately.

15· · · · MS. RODZ:· I understand that last night there

16· ·was a refusal to continue and you stopped at

17· ·9:44 p.m. despite the objection by Jonathan Hart, my

18· ·counsel that was present; is that correct?

19· · · · MS. BUCHER:· No, it's not.· We completed our

20· ·election results at about 11:30, and I exited that

21· ·building at about 1:30.

22· · · · MS. RODZ:· When Mr. Hart asked, "What are you

23· ·doing to comply?"· You stated that, "There's a

24· ·motion pending for reconsideration."· That was the

25· ·response.

000113


·1· · · · Isn't it true that nothing has been done to

·2· ·actually comply with the court order simply thinking

·3· ·we will start after the hearing that's per the next

·4· ·day in disregard of this Court's order?

·5· · · · MS. BUCHER:· That is absolutely not correct.

·6· ·We have been working with my managers that control

·7· ·that process to establish a process of how would we

·8· ·go locate those ballots and how quickly we could

·9· ·pair them up with their duplicates.

10· · · · MS. RODZ:· Under the statute you're required to

11· ·have the word "duplicate" and have it bear a serial

12· ·number.

13· · · · Isn't it simply going to those stacks and

14· ·pulling the ones that are entitled "duplicate"?

15· ·Isn't that as easy as it could be?· Tedious perhaps,

16· ·but shouldn't you have started it immediately upon

17· ·this Court's ruling since we do not have a stay?

18· · · · MS. BUCHER:· We were counting ballots. I

19· ·stated that before.

20· · · · And we do have an established process that we

21· ·worked on yesterday.· It is not as simple as just

22· ·going through the stacks of ballots.· The ballots

23· ·are very secure in buckets.

24· · · · We have over 1,000, and we would have to go

25· ·through each one very carefully to make sure that we

000114


·1· ·were getting all of those duplicates and then

·2· ·putting them in numerical order and matching them up

·3· ·to their duplicates.

·4· · · · We've estimated that if we work 24/7 around the

·5· ·clock we could probably get that done in about two

·6· ·days.

·7· · · · MS. RODZ:· So the answer is no, you've done

·8· ·nothing?· You've just --

·9· · · · MS. BUCHER:· That is not correct.

10· · · · MS. RODZ:· -- pontificated as to what can be

11· ·done and planned, but done nothing; isn't that

12· ·correct?

13· · · · MS. BUCHER:· No, it's not.· We haven't

14· ·pontificated.· We have established a plan to comply

15· ·with the law.

16· · · · MS. RODZ:· Have you looked at a single box?

17· · · · MS. BUCHER:· No, but we've established that we

18· ·have the duplicates in numerical order and we have

19· ·looked at those.· That was our first preparation.

20· · · · MS. RODZ:· Now, the statute requires -- and if

21· ·you read 101.5614, it says, "As soon as the polls

22· ·are closed, the election board shall secure the

23· ·voting devices against further voting."

24· · · · And for the Court and for the parties, "The

25· ·election board shall thereafter, in the presence of

000115


·1· ·members of the public desiring to witness the

·2· ·proceedings --" this is what the statute requires.

·3· · · · Why is it that you did not allow people that

·4· ·were members of the public that were there present

·5· ·desirous to witness the proceedings compliant with

·6· ·this statute to do so?

·7· · · · MS. BUCHER:· Well, when I talked to the

·8· ·witnesses that are working in our area, I explained

·9· ·to them that I couldn't really sit with them because

10· ·we had to conduct our election, and that I walked

11· ·them through, I showed them the process, and

12· ·explained to them that they were able to order a

13· ·copy of the motion camera tapes, and they seemed

14· ·quite comfortable with that.

15· · · · MS. RODZ:· Isn't it true that you did not allow

16· ·them to actually witness the process?

17· · · · MS. BUCHER:· Again, I'll say that I walked them

18· ·through.· They felt quite comfortable for many days

19· ·in a row to observe the process from where they

20· ·were, and when I explained that there motion cameras

21· ·in our quality control area, I explained the entire

22· ·process, they felt quite comfortable.· They did not

23· ·really protest.

24· · · · MS. RODZ:· Do you have a copy of the standard

25· ·established by you that permits duplicates --

000116


·1· · · · MS. BUCHER:· I --

·2· · · · MS. RODZ:· -- to be processed in the manner

·3· ·that you have explained to the Court that you are

·4· ·allegedly processing it?

·5· · · · MS. BUCHER:· I do not establish that standard.

·6· ·That standard is established in the rule that I

·7· ·provided to the judge.

·8· · · · MS. RODZ:· Are you aware of the fact that the

·9· ·Canvassing Board does not have rule-making

10· ·authority?

11· · · · MS. BUCHER:· Of course I am.

12· · · · MS. RODZ:· And so why is it that you have taken

13· ·it upon yourself to disregard the rule and the

14· ·statute and the process that's been established by

15· ·Florida?

16· · · · MS. BUCHER:· I don't believe that we disregard

17· ·it.

18· · · · We use a rule that is in place that has been

19· ·adopted by the State of Florida, that is used by

20· ·numerous other supervisors, and that's why we went

21· ·by the exact rule to determine the intent of the

22· ·voter to be extremely clear about the process.

23· · · · (Multiple speakers speaking at the same time.)

24· · · · THE COURT:· Just pause for a minute, okay?

25· ·Because, I mean, you started off saying to me that,

000117


·1· ·you know, the large circuit -- the large counties

·2· ·employ this process where the staff makes the

·3· ·unilateral decision of what counts as an undervote,

·4· ·overvote or damaged vote and yet when (inaudible)

·5· ·says, no, they don't after the Canvassing Board

·6· ·reviews it, so that didn't happen, right?

·7· · · · MS. BUCHER:· In many cases that's true.· When

·8· ·it was a very clear intent, I brought some examples

·9· ·of ballots if you'd like to see, but the --

10· · · · THE COURT:· I don't want to.· I just want you

11· ·to answer the question, that the Canvassing Board

12· ·didn't review it first?

13· · · · MS. BUCHER:· That's right.

14· · · · THE COURT:· Let me ask you this.· Did your --

15· ·these staff members, are they permanent staff

16· ·members or is it like a Macy's at the holiday season

17· ·and you hire people off the street --

18· · · · (Both speaking at once.)

19· · · · MS. BUCHER:· Some of the staff members are our

20· ·senior managers.

21· · · · THE COURT:· All senior managers would have been

22· ·part of this in tandem team that was reviewing --

23· · · · MS. BUCHER:· No.· We have some of our permanent

24· ·staff and they would be paired up with possibly a

25· ·temporary.

000118


·1· · · · THE COURT:· Temporary meaning some --

·2· · · · MS. BUCHER:· Somebody who has worked with us

·3· ·throughout the election process.· We always -- we

·4· ·only employ 48 people.· We usually pick up around

·5· ·200 people.· Out of those people we usually quality

·6· ·have about 20 people, some of the people who have

·7· ·worked with us throughout the entire election cycle.

·8· · · · THE COURT:· So some of the people that were

·9· ·making this determination were just temporary

10· ·employees that were hired for election season?

11· · · · MS. BUCHER:· They were, but they have had

12· ·extensive training not only in this process, but in

13· ·the entire counting of ballot process.· They've been

14· ·with us since the primary election since before the

15· ·primary election.

16· · · · THE COURT:· All right.· Go ahead.

17· · · · MS. RODZ:· You testified to the Court that you

18· ·don't know the number of duplicate ballots.· If you

19· ·don't know, how do you know it's impossible to do

20· ·the task that the Court has ordered you to do?

21· · · · MS. BUCHER:· We have reviewed the process, and

22· ·I know that it's thousands of ballots, and I can't

23· ·be there monitoring that process when I'm canvassing

24· ·ballots.

25· · · · MS. RODZ:· And how did you find the ballots

000119


·1· ·that you have testified to the Court that you

·2· ·brought as, quote, unquote, examples?· How did you

·3· ·do that process?

·4· · · · MS. BUCHER:· We provided that each -- in

·5· ·accordance with the Florida statute that each

·6· ·duplicate ballot prepared pursuant to 101.561 --

·7· · · · MS. RODZ:· I'm sorry.· Will you please slow

·8· ·down for the Court?

·9· · · · MS. BUCHER:· -- shall be compared with the

10· ·original ballot to ensure the correct duplicate.· If

11· ·the counting team is unable to determine whether the

12· ·ballot contains a clear indication that the voter

13· ·has made a definite choice, the ballot shall be

14· ·presented to the Canvassing Board.

15· · · · We relied on that statute, ma'am.

16· · · · MS. RODZ:· That was not my question.· How did

17· ·you find those ballots that you have testified to

18· ·the Court you brought as an example?· What process

19· ·did you do to find those examples?

20· · · · MS. BUCHER:· We opened the first box of

21· ·duplicates and grabbed those, the two examples, one

22· ·that would have been duplicated by the staff and one

23· ·that was presented to the Canvassing Board to show

24· ·the starking difference of a very clear intent of

25· ·circles around a candidate's name and then stray

000120


·1· ·marks that the Canvassing Board would have had to

·2· ·determine.

·3· · · · THE COURT:· Let me ask you something.· Did the

·4· ·staff -- it's your sworn testimony that it was

·5· ·always in tandem, so when this duplication process

·6· ·was occurring, there was never one staff member

·7· ·making the decision.

·8· · · · Did any of these staff members say, "This is

·9· ·too damaged.· We're not going to count it"?

10· · · · MS. BUCHER:· Absolutely not.· What happens is

11· ·that we present a blank ballot and a ballot that

12· ·needs to be duplicated.

13· · · · One staff members reads off the voter's

14· ·choices.· The other one marks the ballot.· They

15· ·trade those ballots and the other person reads off

16· ·and the person who was reading off originally is

17· ·verifying that the second board -- team member

18· ·captured the votes properly.

19· · · · THE COURT:· And how would you respond to the

20· ·fact that I have two affidavits from individuals who

21· ·are sitting in the courtroom today that say they

22· ·observed it from this 15 feet away and that they --

23· ·that's not what that observed was happening, but

24· ·rather they observed a group of individuals doing

25· ·the duplication process rather than working in

000121


·1· ·tandem and in their affidavits they say instead two

·2· ·supervisors were cruising around the room watching?

·3· · · · MS. BUCHER:· We have other activity, and so I

·4· ·think that what they were looking at yesterday is we

·5· ·were in the process of separating the two ballot

·6· ·pages so that we could prepare a recount.

·7· · · · And we did have individuals just separating

·8· ·card A from card B.· I'm sure that they saw that

·9· ·process.· Those tables are intermingled in the same

10· ·territory, but at no time was one person making a

11· ·determination.

12· · · · We have a very quality careful system.· They

13· ·are traded.· They make sure that they have verified

14· ·that they've correctly documented the vote, and we

15· ·have liberally told them that if they have any issue

16· ·that they are to immediately send it to the

17· ·Canvassing Board.

18· · · · MS. RODZ:· Where is it required in the statute

19· ·or anywhere that you separate pages as you were

20· ·doing yesterday instead of complying with this

21· ·Court's order for the ballots?

22· · · · MS. BUCHER:· I don't think that has anything to

23· ·do with this issue.

24· · · · MS. RODZ:· It's very important.· Where is it

25· ·required under law that you start separating ballots

000122


·1· ·for convenience versus complying with this Court's

·2· ·order?

·3· · · · MS. BUCHER:· Well, in the process that we have,

·4· ·we certainly wouldn't have used the staff that was

·5· ·separating card A from card B to go and make sure

·6· ·that we capture all of those duplicates in each one

·7· ·of the buckets of ballots.

·8· · · · That would be something that our permanent and

·9· ·senior staff would do because we would not rely on

10· ·the other staff members that are working with us

11· ·right now to conduct that operation.

12· · · · MS. RODZ:· But you relied on them to duplicate

13· ·ballots?

14· · · · MS. BUCHER:· No.· We relied on our senior staff

15· ·to duplicate ballots and team them with a senior

16· ·staff member at all times.

17· · · · THE COURT:· Okay.· You just read some statutory

18· ·language in saying that somehow -- you know, I'm

19· ·still not clear.

20· · · · You told me that you believe it's lawful, this

21· ·procedure of having staff members and not having the

22· ·Canvassing Board, but everything I have says the

23· ·Canvassing Board must make the determination, not

24· ·your staff members.

25· · · · So tell me your best argument for how this

000123


·1· ·procedure that you employed and assert that other

·2· ·counties also employ is proper under the law.

·3· · · · MS. BUCHER:· Well, we have a very careful

·4· ·process of monitoring --

·5· · · · THE COURT:· No.· No.· No.· What legal authority

·6· ·do you have where this procedure where the

·7· ·unambiguous language says it is solely for the

·8· ·Canvassing Board to make the determination?

·9· · · · I don't want to say -- I don't want to hear,

10· ·"Well, you know, we just have a lot of cases and

11· ·we're really busy and this is how we do it and this

12· ·is how other big -- other people do it too, Johnny

13· ·jumped off the bridge."

14· · · · The language is unambiguous that it's the

15· ·Canvassing Board who makes the determination.

16· · · · So I want to hear your best argument, a case, a

17· ·statute, a rule that says what you're doing, what

18· ·you assert other big counties are doing is

19· ·appropriate, your best argument.

20· · · · MS. BUCHER:· There is a statute that allows the

21· ·Canvassing Board to employ clerical help to assist

22· ·in the operation of counting ballots of elections.

23· · · · THE COURT:· Where is that statute though?

24· · · · MR. BAUMANN:· May I approach, Your Honor?

25· · · · THE COURT:· I'm not sure determining undervotes

000124


·1· ·and overvotes is clerical.· I know that our clerks

·2· ·in the law system would never make such a

·3· ·determination.· What paragraph of this --

·4· · · · (Both speaking at once.)

·5· · · · MS. BUCHER:· It's 102.141(8).

·6· · · · THE COURT:· 8?

·7· · · · MS. BUCHER:· 8.· "The Canvassing Board may

·8· ·include -- employ such clerical help to assist with

·9· ·the work of the board as it deems necessary and at

10· ·least one member of the board present at all times

11· ·until the canvass of the returns is completed."

12· · · · I was always present during the duplicating

13· ·process.

14· · · · THE COURT:· There was never any duplication

15· ·going on without your presence?

16· · · · MS. BUCHER:· Absolutely not.· You cannot open

17· ·ballots or duplicate ballots without at least one

18· ·member of the Canvassing Board present, and I was

19· ·present at every single time that we opened ballots

20· ·or that we duplicated ballots.

21· · · · THE COURT:· Okay.· Listen, we are where we are,

22· ·and the deadline is an hour and a half, and you're

23· ·not going to get what I ordered.

24· · · · So I want to hear from you, Ms. Rodz.· What do

25· ·you want me to do?

000125


·1· · · · MS. RODZ:· Your Honor, can we ask one more

·2· ·question?

·3· · · · THE COURT:· Sure.

·4· · · · MS. RODZ:· You testified to this Court that

·5· ·there are other counties that are doing this, and

·6· ·I'd like to know, considering that they have

·7· ·disregarded the law, what other counties do you

·8· ·present to this Court that you communicated with to

·9· ·make this decision?

10· · · · MS. BUCHER:· Well, being a large county, we

11· ·have a large county coalition that meets once a

12· ·quarter, and when I went around the table, almost

13· ·every large county had employed this process for

14· ·over ten years.

15· · · · I've been a supervisor for ten years.· This is

16· ·my first year that I've employed it because I felt

17· ·comfortable that other large counties had been doing

18· ·this process for a very long time.

19· · · · MS. RODZ:· That doesn't answer my question.

20· ·What counties employ it?

21· · · · MS. BUCHER:· Well, you know, the large counties

22· ·that spoke to me about this is Hillsborough, Orange

23· ·County, Lee County, many counties.

24· · · · MS. RODZ:· So are you testifying that Lee

25· ·County and Hillsborough County are applying the same

000126


·1· ·disregard to the statute that you are?

·2· · · · MS. BUCHER:· Well, I don't know that they're

·3· ·disregarding it --

·4· · · · MR. BAUMANN:· Objection.

·5· · · · THE COURT:· What's your objection, sir?

·6· · · · MS. BUCHER:· -- but they did provide --

·7· · · · MR. BAUMANN:· There is a mischaracterization of

·8· ·illegal activity.

·9· · · · THE COURT:· Sustained.· All right.· Look,

10· ·here's where we are, in an hour and a half my order

11· ·will not be complied with.· However, it sounds like

12· ·the supervisor of elections is saying it is doable.

13· · · · MS. RODZ:· I just didn't do it.· That's pretty

14· ·much what we've heard today.· I just disregarded the

15· ·Court.· I just filed a motion not to get it --

16· · · · (All speaking at once.)

17· · · · THE COURT:· All we're here for right now is a

18· ·motion for reconsideration.

19· · · · MS. RODZ:· Yes, Your Honor.· You have to have a

20· ·basis for a reconsideration.· You didn't get an

21· ·affidavit.· All you got is oh, they're intermixed.

22· · · · But guess what?· The statute requires you to

23· ·duplicate and requires you to put "duplicate" and

24· ·have a serial number on it.

25· · · · We've heard, oh, I can be here today.· I can

000127


·1· ·stop doing or I can walk around a huge warehouse,

·2· ·but I can't ask people to comply with this Court's

·3· ·order.· This is bombastic.· We should not be here

·4· ·today.

·5· · · · They should be doing their job.· They should be

·6· ·complying with your Honorable Court.· You've spent

·7· ·time and effort.

·8· · · · And why are we here?· Because they don't want

·9· ·to comply with the statute.· They don't care about

10· ·this Court's ruling, and that's unacceptable, Your

11· ·Honor, completely unacceptable.

12· · · · They should be pulling out every single

13· ·duplicate.· Now, if they would have filed an

14· ·affidavit and been here today and said, "Judge, the

15· ·minute you rule on this we started pulling and we've

16· ·been pulling for 15 hours, Your Honor, and we are

17· ·only here," I'd respect that, Your Honor, because

18· ·they tried in good faith.

19· · · · All I've heard today, and I'm amazed that we're

20· ·here instead of complying with this Court's order

21· ·for the benefit of the voters of this state, all we

22· ·have heard is we're here to try to make sure we

23· ·don't have to do our job and we don't care about the

24· ·Court.

25· · · · They didn't file an appeal.· Had they filed an

000128


·1· ·appeal, they would have had a stay.· You know why?

·2· ·Because they don't have an appealable issue.· They

·3· ·know what they've done and it's wrong.

·4· · · · So the fact that they haven't complied is their

·5· ·problem.· How they are going to be sanctioned for

·6· ·it, we'll have to see, but the reality is that they

·7· ·should be running to their job and start doing their

·8· ·job because if they had 30 to 40 people, which we

·9· ·have personally witnessed 30 to 40 people there,

10· ·start pulling, start giving to the Canvassing Board.

11· · · · And you know what, if can't comply by 10:00,

12· ·say, Your Honor, we've given them 5,000 by 10:00 and

13· ·by 11:00 we gave them twenty because we failed to do

14· ·our job.· Why are we here?· We should not be here.

15· · · · MR. BAUMANN:· May I respond, Your Honor?· Thank

16· ·you.· Notwithstanding the argument grandstanding --

17· · · · THE COURT:· All right.· We can skip that.

18· · · · MR. BAUMANN:· Your Honor, I'm handing you

19· ·Volusia County Canvassing Board versus -- Beckstrom

20· ·versus Volusia County Canvassing Board, a Supreme

21· ·Court case from 1998.

22· · · · This case is important for a couple of reasons.

23· ·Why are we here, Your Honor?· The very simple

24· ·question is we shouldn't be here.

25· · · · The Beckstrom case tells us that the remedy --

000129


·1· ·the legal remedy, which we refute or defeat the

·2· ·attempt to obtain an injunction in the first place,

·3· ·is that if Governor Scott loses this race, he has

·4· ·the remedy to file an election challenge under

·5· ·102.168, and we can have all of those ballots used

·6· ·in discovery.· We can determine whether or not the

·7· ·elements of an election challenge were met.

·8· · · · The Volusia County case states -- and it's an

·9· ·interesting case because it deals with absentee

10· ·ballots.

11· · · · In that one, Your Honor, the Volusia County

12· ·Canvassing Board and supervisor's staff did not

13· ·create duplicate ballots.· They simply took a

14· ·Sharpie and went over the original ballots and

15· ·colored them in so that the machine would read them

16· ·better, and the prevailing candidate won by absentee

17· ·ballots.

18· · · · THE COURT:· Well, who did that scribbling, the

19· ·Canvassing Board or staff members that were

20· ·temporarily hired?

21· · · · MR. BAUMANN:· The case says election staff.

22· · · · MS. RODZ:· Your Honor, that case is an election

23· ·contest.

24· · · · MR. BAUMANN:· Excuse me.· And that is the point

25· ·is that that is an election contest.

000130


·1· · · · MS. RODZ:· After the fact.

·2· · · · MR. BAUMANN:· And in that case the trial judge

·3· ·ruled that there is a standard in election contests,

·4· ·that citing the Boardman decision from the Florida

·5· ·Supreme Court, 323 So.2d 259.

·6· · · · The Boardman case sets the standard realizing,

·7· ·as the Supreme Court stated, which is on Page 6 of

·8· ·the -- quoted on Page 6 of the opinion.

·9· · · · "Realizing as we do that strict compliance has

10· ·been required by this Court in other cases, we now

11· ·recede from that rule" and hold to the effect that

12· ·"substantial compliance with the absentee voting

13· ·laws is all that is required to give legality to the

14· ·ballot."

15· · · · The Supreme Court then goes on at the bottom of

16· ·Page 6 to talk about the difference between fraud

17· ·and between what they term gross negligence, and

18· ·it's not gross negligence in the standpoint of a

19· ·tort case.

20· · · · They're talking about unintentional

21· ·noncompliance with a statutory-mandated process that

22· ·results from incompetence, lack of care where as we

23· ·find occurred in this election, the election

24· ·official's erroneous understanding of the statutory

25· ·requirements.

000131


·1· · · · And in sum what they hold is that even in a

·2· ·situation where the trial court finds substantial

·3· ·noncompliance caused by unintentional wrongdoing, as

·4· ·we have defined it, the Court is to void the

·5· ·election only if the substantial noncompliance

·6· ·resulted in doubt --

·7· · · · THE COURT:· I'm not voiding an election.

·8· · · · MR. BAUMANN:· Well, but the point is, Your

·9· ·Honor, that is the legal remedy here.· The Courts

10· ·are supposed to abstain from --

11· · · · THE COURT:· Wait.· Wait.· Wait.

12· · · · (Both speaking at once.)

13· · · · MR. BAUMANN:· -- in the middle of an election.

14· · · · THE COURT:· I'm not doing that.· I have sworn

15· ·affidavits that say all damaged ballots, which were

16· ·only about 650, and now I'm learning are thousands,

17· ·there are witnesses who say that this in-tandem

18· ·procedure was not occurring that but yet rather

19· ·unilateral decisions were being made by what I've

20· ·now learned is even temporary staff.

21· · · · So I am not voiding -- I am saying that a

22· ·Canvassing Board decision should have been made

23· ·about that pursuant to the statute and the rule and

24· ·it wasn't, and that is why yesterday I ordered that

25· ·the 650 that now has blossomed into a much larger

000132


·1· ·number be provided to the Canvassing Board.

·2· · · · MR. BAUMANN:· Correct, Your Honor.

·3· · · · THE COURT:· So --

·4· · · · MR. BAUMANN:· And when we were here yesterday,

·5· ·we were both operating due to my lack of knowledge

·6· ·as to where we were as to, one, the number of

·7· ·ballots we were talking about, and two, where we

·8· ·were in the process.

·9· · · · I was not aware that as we were in hearing

10· ·yesterday that the duplicate ballots had already

11· ·been tabulated and therefore had disappeared into

12· ·what I'm going to call the stream of ballots.

13· · · · I thought that was still something that we

14· ·could locate.· I told Your Honor that I wasn't sure,

15· ·but that we would do whatever it would take to get

16· ·it done.

17· · · · I returned to the supervisor's office after the

18· ·hearing and was told it's done, we can't get this

19· ·done by 10:00 tomorrow morning.· There's no way.

20· · · · And we filed a motion for reconsideration,

21· ·which is the proper thing to do when either the

22· ·Court does not have all the information or has been

23· ·acting upon inaccurate information.

24· · · · THE COURT:· Okay.· What I find troubling though

25· ·is what I firmly believe that from my ruling at

000133


·1· ·about 11:45 yesterday, it's my opinion that

·2· ·zip-a-dee-doo-dah has been done to comply with the

·3· ·order.

·4· · · · So that troubles me deeply that simply a motion

·5· ·for reconsideration was filed very late yesterday

·6· ·afternoon, and from what I'm hearing nobody did

·7· ·anything to come into compliance from the Supervisor

·8· ·of Elections office with regard to my order.

·9· · · · A motion for reconsideration is not a stay, and

10· ·I do not appreciate that here we are now two hours,

11· ·three hours -- two hours from the deadline -- one

12· ·hour from the deadline and nothing has been done in

13· ·my opinion from what I've heard to comply with the

14· ·order.

15· · · · So, Ms. Rodz, what I say to you is this is

16· ·simply here for a motion for reconsideration.

17· · · · MS. RODZ:· And it should be denied, Your Honor.

18· ·It should be denied because you've heard today that

19· ·she needed two days.· She could have started to run

20· ·over there, call their people --

21· · · · THE COURT:· Okay.· Anything further on the

22· ·motion for reconsideration?

23· · · · MR. BAUMANN:· Yes, Your Honor.· What you are

24· ·asking for and to clarify is the ballots that were

25· ·segregated, that remain segregated are the original

000134


·1· ·damaged ballots, the originals, the ones the voters

·2· ·filled out.· That is the only thing that we could --

·3· ·here's a box, here they are.

·4· · · · What you heard from the supervisor was that she

·5· ·had staff members determining how they would locate

·6· ·these things, what the process would be to follow

·7· ·it, and then determine how long it would take.

·8· · · · THE COURT:· Okay.· Ms. Bucher, did you testify

·9· ·earlier, ma'am, that the count is complete?


11· · · · THE COURT:· Okay.· All right.· So they

12· ·can't -- you've already got all the segregated

13· ·ballots in a particular location under seal,

14· ·correct?

15· · · · MR. BAUMANN:· The originals.

16· · · · THE COURT:· Correct.

17· · · · MR. BAUMANN:· Yes, Your Honor.

18· · · · THE COURT:· The damaged defective ballots have

19· ·been segregated and there is a process in place

20· ·whereby going through, although tedious, you can, in

21· ·fact, provide the plaintiff with the duplicate

22· ·ballots, correct?

23· · · · MR. BAUMANN:· There is a process, yes, Your

24· ·Honor.

25· · · · THE COURT:· So the motion for reconsideration

000135


·1· ·is denied.· However, I extend it to noon, and there

·2· ·must be substantial compliance with the order.

·3· · · · Listen, they're not going to meet it, but I

·4· ·want -- certainly they should have all damaged

·5· ·ballots by noon and there should be substantial

·6· ·compliance given the fact that these 30 or 40

·7· ·employees are now done, the count is complete, that

·8· ·they should start combing through these ballot boxes

·9· ·and pulling the duplicate ballots that were

10· ·completed by staff members.

11· · · · So there must be substantial compliance with

12· ·pulling out the duplicate ballots that were

13· ·completed by staff.

14· · · · MR. BAUMANN:· If I may, Your Honor, the issue

15· ·is that we are expecting that any moment now the

16· ·declaration of three statewide recounts and a --

17· · · · THE COURT:· So guess what?· You're going to

18· ·need to do it anyway.· If, in fact, there's a

19· ·recount, then that's going to have to be done

20· ·anyway.· So that's what I'm ordering, and I'm going

21· ·to extend it to 12:00.· The motion to stay is

22· ·denied.· Okay.· Anything further?

23· · · · MR. BAUMANN:· No, Your Honor.

24· · · · THE COURT:· Thank you.

25· · · · (Concluded at 9:13 a.m.)

000136


·1· · · · · · · · · · CERTIFICATE OF REPORTER

·2

·3

·4· ·STATE OF FLORIDA

·5· ·COUNTY OF PALM BEACH

·6

·7· · · · · · · ·I, AMANDA THOMAS, digital court reporter,

·8· ·certify that I was authorized to and did report the

·9· ·foregoing hearing; that the foregoing transcript is a

10· ·true and accurate record of the above-mentioned

11· ·proceedings; and that said record has been transcribed by

12· ·me or under my direction.

13

14· · · · · · · ·I further certify that I am not a relative,

15· ·employee, attorney, or counsel of any of the parties, nor

16· ·am I a relative or employee of any of the parties'

17· ·attorney or counsel connected with the action, nor am I

18· ·financially interested in the action.

19

20· · · · · · · ·Dated:· 11/11/2018.

21

22· · · · · · · · · · · · ·___________________________________· · · · · · · · · · · · · ·AMANDA THOMAS23· · · · · · · · · · · · ·Digital Court Reporter· · · · · · · · · · · · · ·Notary Public, State of Florida24

25

000137


,--,%k

ORANGE LEGAL --__.--z

000138


ORANGE LEGAL N....-..-

000139



000140



000141



000142



000143



000144


IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT


RICK SCOTT FOR SENATE, CASE NO.: 502018CA014075XXXXMB

Plaintiff, DIVISION: AA

v.





Defendant.

________________________________________/

ORDER SETTING HEARING

THIS MATTER came before the Court on Defendant’s Emergency Motion for

Reconsideration, Status Conference, and Emergency Stay filed November 9, 2018. Upon

consideration, it is hereby

ORDERED AND ADJUDGED that:

This motion is hereby set for a hearing on Saturday, November 10, 2018 at 8:30 am in

Courtroom 1 at the Criminal Justice Complex, 3228 Gun Club Road, West Palm Beach, FL

33406.

DONE AND ORDERED in Chambers, at West Palm Beach, Palm Beach County,

Florida this 9th day of November, 2018.

______________________________

KRISTA MARX, Circuit Judge


Aliette Rodz, Esq.



Miami, FL 33131


[email protected]

000145






[email protected]



301 E. Pine Street

Orlando, FL 32801


000146

Filing # 80643401 E-Filed 11/09/2018 09:37:57 PMFiling # 80643401 E-Filed 11/09/2018 09:37:57 PM



CASE NO. 50-2018-CA-014075RICK SCOTT FOR SENATE,

JUDGE Krista MarxPlaintiff,

v.

Verified Response in Opposition to

Defendant's Emergency Motion for

Reconsideration, Status Conference, and

Emergency Stay



County, Florida,

Defendant.

PLAINTIFF RICK SCOTT FOR SENATE'S VERIFIED RESPONSE IN OPPOSITION

TO DEFENDANT'S EMERGENCY MOTION FOR RECONSIDERATION, STATUS

CONFERENCE, AND EMERGENCY STAY

Plaintiff Rick Scott for Senate ("Plaintiff'), through its undersigned counsel, hereby files

its Verified Response in Opposition to the Emergency Motion for Reconsideration, Status

Conference, and Emergency Stay (the "Motion") of Defendant Susan Bucher, solely in her

capacity as Supervisor of Elections of Palm Beach County, Florida ("Defendant"). In support of

this Response in Opposition, Plaintiff states:

INTRODUCTION AND INCORPORATION OF SUPPORTING AFFIDAVITS

As the Court is aware, on November 8, 2018 Plaintiff filed a Verified Complaint1.

for Declaratory and Injunctive Relief (the "Verified Complaint") to enjoin Defendant's

shutts.com | FORT LAUDERDALE | JACKSONVILLE | MIAMI I ORLANDO I SARASOTA | TALLAHASSEE I TAMPA I WEST PALM BEACH

000147

CASE NO. 50-20 1 8-CA-0 14075

Plaintiff's Response in Opposition

See generally Verified Complaint.ongoing violations of § 101.5614(4)(a), Fla. Stat.

Through the filing of that document, Plaintiffs undersigned counsel swore, under penalty of

perjury, that the factual allegations in the Verified Complaint were "true and correct to the

best of [her] knowledge." Id. at p. 5.

Now, in the Motion, Defendant appears to take issue with the fact that—despite2.

filing a Verified Complaint—Plaintiff did not also submit affidavits of its representatives

attesting to the truth of the allegations in the Verified Complaint. See Motion at ^[ 6.

Defendant ignores the reality that Plaintiffs submission of any affidavits was3.

Nevertheless, in an abundance of caution, Plaintiff hereby submits (andunnecessary.

incorporates into this Response in Opposition) the Affidavits of Kevin D. Rosen, Esq. and

Jonathan P. Elart, Esq., the attorneys who have been present at Defendant's processing site.

Specifically, Mr. Rosen and Mr. Hart are partners at the West Palm Beach.4.

Florida office of Shutts & Bowen LLP, which law firm represents Plaintiff in this

proceeding, together with GrayRobinson, P.A.

On November 8, 2018, Mr. Rosen, in his capacity as Plaintiffs representative,5.

appeared at 7835 Central Industrial Drive, Riviera Beach, Florida 33404, where Defendant is

conducting the post-election ballot tabulation. Mr. Rosen attempted to monitor Defendant's

compliance with the Florida Election Code and, specifically, with § 101 ,5614(4)(a).

Mr. Rosen's Affidavit is attached as EXHIBIT A.

See Fla. R. Civ. P. 1.610(a)(1)(A) ("A temporary injunction may be granted . . . only if ... it

appears from the specific facts shown by affidavit or verified pleading that immediate and

irreparable injury, loss, or damage will result to the movant before the adverse party can be heard

in opposition[.]" (emphasis added)).

2

shutts.com | FORT LAUDERDALE I JACKSONVILLE I MIAMI I ORLANDO I SARASOTA I TALLAHASSEE I TAMPA I WEST PALM BEACH

000148

CASE NO. 50-201 8-CA-01 4075


Mr. Rosen personally spoke with Defendant, who confirmed to him that all6.

originals have been kept with regard to the duplicate ballots that have been made by her staff.

Exhibit A at f 14.

Mr. Rosen was excluded from entering the area where the tabulation and7.

processing of ballots was taking place and was in fact required to stay behind a rope, with the

exception of a very brief and partial "walk-through." Id. at 'If 9. A true and correct picture of

the area taken by Mr. Rosen is attached as Exhibit A to his Affidavit.

Defendant also personally advised Mr. Rosen that when the staff determined for8.

themselves that the voter's intent appeared clear on ballots, those ballots were not being

forwarded to the Palm Beach County Canvassing Board but instead were duplicated and

processed by Defendant's staff without the Board's involvement. Id. at Tf 11. At the

conclusion of the day on November 8, 2018, Mr. Rosen was advised by Defendant that of the

roughly 650 "overvoted" and "undervoted" ballots, only 50-60 were going to be presented to

the Palm Beach County Canvassing Board on November 9, 201 8. Id. at If 12.

Jonathan Hart was present on November 9, 2018 where Defendant is conducting9.

the post-election ballot tabulation and personally witnessed Defendant's failure to abide by

the Court's ruling and Temporary Injunction Order (the "Order") of today. Mr. Hart's

Affidavit is attached as Exhibit B.

1 0. Defendant acknowledged, on the record during a Canvassing Board Meeting, that

However, whenshe and her office know about the Court's Order. Exhibit B at If 8.

Mr. Hart discussed the issue of compliance with Defendant's counsel, he was told that

Defendant did not even have a plan for compliance. Id. at ^f 9. Mr. Hart sought clarification,

on at least two more occasions, regarding Defendant's compliance plan, but Defendant's

3

shutts.com | FORT LAUDERDALE | JACKSONVILLE I MIAMI ORLANDO I SARASOTA I TALLAHASSEE I TAMPA I WEST PALM BEACH

000149

CASE NO. 50-201 8-CA-014075

Plaintiffs Response in Opposition

counsel did not advise what, if anything, Defendant was doing to comply with the Court's

Order. Id. at ^ 10. As of 6 p.m. tonight, Defendant's counsel could not answer a direct

question regarding whether the Palm Beach County Canvassing Board intended to even start

its review of the affected ballots in compliance with the Court's Order. Id.

ARGUMENT: THE COURT SHOULD NOT EXCUSE DEFENDANT'S

COMPLIANCE WITH THE COURT'S NOVEMBER 9, 2018 TEMPORARY

INJUNCTION ORDER AND UNAMBIGUOUS FLORIDA ELECTION LAW

Defendant, in blatant disregard of the Court's Order, has failed and refused to11.

comply with the Order and instead has filed a Motion for Reconsideration in an attempt to

circumvent the Court's ruling requiring compliance with § 101 ,5614(4)(a). What Defendant

has failed to mention is that the statute requires that "[a]ll duplicate ballots shall be clearly

labeled 'duplicate', bear a serial number which shall be recorded on the defective ballot

and be counted in lieu of the defective ballot." § 101.5614(4)(a) (emphasis added). Thus,

instead of culling out all of the labeled "duplicate" ballots, which Defendant confirmed to

Mr. Rosen were with their originals, Defendant is failing and refusing to adhere to the

Court's Order by claiming that they are "intermixed." This argument is nothing other than a

red herring that should not be condoned by the Court.

12. Today, there have been at least 21 staff members from Defendant's office present

and instead of working on complying with the Court's Order, they have been separating

pages of ballots to make the recount easier. Exhibit B at ^ 1 1 . In fact, as of the filing of this

Response in Opposition, no one from Defendant's office has been able to confirm, to

Plaintiff, that Defendant is actually working to comply with the Court's Order. Id.

13. Defendant has simply failed to set forth any proper legal or factual basis for the

Court to alter its ruling. The filing of a motion for reconsideration does not stay the Court's

4

shutts.com | FORT LAUDERDALE I JACKSONVILLE I MIAMI I ORLANDO I SARASOTA I TALLAHASSEE I TAMPA I WEST PALM BEACH

000150

CASE NO. 50-201 8-CA-014075


Defendant is well apprised of the urgency of the deadline and is sitting idle onruling.

purpose, to the detriment of Florida voters and in disregard of the State's interest in

conducting a fair and honest election. All case law cited in Plaintiffs Verified Emergency

Motion for a Temporary Injunction and Supporting Memorandum of Law is incorporated

herein by specific reference.

WHEREFORE, Plaintiff Rick Scott for Senate respectfully requests that the Court deny

Defendant's Motion and compel Defendant to immediately comply with the Court's

November 9, 2018 Temporary Injunction Order and, should Defendant fail to so comply,

hold Defendant in contempt of Court for disregarding the Court's ruling.


/s/Aliette D. Rodz




Shutts & Bowen LLP


Miami, FL 33131

Office: (305) 347-7342

Facsimile: (305) 347-7742

-and-



Email: george. levesque@gray-robinson. com



Email: leslie. metz@gray-robinson. com




robinson.com

Jeff Aaron, Esq.


5

shutts.com | FORT LAUDERDALE | JACKSONVILLE I MIAMI I ORLANDO I SARASOTA I TALLAHASSEE I TAMPA I WEST PALM BEACH

000151

CASE NO. 50-20 18-CA-0 14075


Email: jeffaaron@gray-robinson. com

GrayRobinson, P.A.



Office: (561)268-5727

Facsimile: (561) 886-4101



I hereby certify that on this 9th day of November, 2018, I did cause a true and correct

copy of Plaintiffs Response in Opposition to Emergency Motion for Reconsideration, Status

Conference, and Emergency Stay, to be served via email upon:

Andrew J. Baumann




Rachel B. Santana




Natalie A. Kato







Telephone: (561) 640-0820

Facsimile: (561) 640-8202


/s/Aliette D. Rodz





Miami, FL 33131

Office: (305) 347-7342

Facsimile: (305) 347-7742

6

shutts.com | FORT LAUDERDALE I JACKSONVILLE I MIAMI | ORLANDO I SARASOTA I TALLAHASSEE I TAMPA I WEST PALM BEACH

000152

CASE NO. 50-201 8-CA-014075


-and-



Email: george. levesque@gray-robinson. com



Email: leslie. metz@gray-robinson. com




robinson.com

Jeff Aaron, Esq.


Email : jeffaaron@gray-robinson. com

GrayRobinson, P.A.



Office: (561)268-5727

Facsimile: (561) 886-4101

Attorneysfor Plaintiff

1

shutts.com | FORT LAUDERDALE | JACKSONVILLE I MIAMI | ORLANDO I SARASOTA I TALLAHASSEE I TAMPA I WEST PALM BEACH

000153

EXHIBIT A

000154



CASE NO. 50-201 8-CA-014075RICK SCOTT FOR SENATE,


v.

Affidavit of Kevin D. Rosen, Esq.SUSAN BUCHER, solely in her capacity as


County, Florida,

Defendant.

AFFIDAVIT OF KEVIN D. ROSEN. ESQ.

STATE OF FLORIDA )))COUNTY OF PALM BEACH

BEFORE the undersigned authority personally appeared Affiant, Kevin D. Rosen, who

after first being duly sworn, deposes and says:

My name is Kevin D. Rosen and I am over the age of eighteen (18) years old.1.

I am a partner at the West Palm Beach, Florida office of Shutts & Bowen LLP,2.

which law firm represents Plaintiff Rick Scott for Senate ("Plaintiff') in this proceeding and

in connection with legal matters arising after the 2018 general election.

I make this affidavit based on my personal knowledge. All statements contained3.

herein are true and correct.

1

000155

On November 8, 2018, I appeared at 7835 Central Industrial Drive, Riviera4.

Beach, Florida 33404, where Defendant Susan Bucher, solely in her capacity as Supervisor

of Elections of Palm Beach County, Florida ("Defendant"), is conducting the post-election

ballot tabulation.

I arrived at Defendant's processing site at 8:00 a.m. and departed at5.

approximately 6:00 p.m.

I remained at Defendant's processing site for a continuous period, with the6.

exception of a lunch break and, as such, I possess direct knowledge of the events outlined

below.

The purpose of my appearance was to monitor Defendant's (and her staffs)7.

compliance with the Florida Election Code, including by supervising Defendant's processing

and duplication ofphysically damaged, "overvoted," and "undervoted" absentee ballots.

First, Defendant prohibited me from properly observing her office's processing8.

and duplication ofphysically damaged absentee ballots.

Specifically, when I attempted to enter the area where Defendant was processing9.

and duplicating the damaged ballots, Defendant explained that I could not enter that location

to witness the events occurring there. I was excluded from entering the area where the

tabulation and processing of ballots was taking place and was required to stay behind a rope,

with the exception of a very brief and partial "walk-through" of the subject location. A true

and correct photo of this area, from November 8, 2018, is attached as Exhibit A.

10. Second, during my appearance at Defendant's processing site, Defendant advised

me that her office (rather than the Palm Beach County Canvassing Board) would undertake

the task of determining valid votes from "overvoted" and "undervoted" absentee ballots.

2

000156

1 1 . Defendant personally advised me that when her staff determined for themselves

that a voter's intent appeared clear on the ballots, those ballots would not be forwarded to the

Palm Beach County Canvassing Board, but would instead be processed and duplicated by her

staff without the Board's involvement.

At the end of the day on November 8, 2018, Defendant advised me that of the12.

roughly 650 "overvoted" and "undervoted" ballots reviewed by her staff, only 50-60 would

be presented to the Palm Beach County Canvassing Board on November 9, 201 8.

13. During my appearance at Defendant's processing site, despite my requests to be

allowed to witness the process to ensure that the duplications made were accurate, Defendant

would not allow me to do so. I also saw no one else witness the work of each individual staff

at all times. Instead, there were two staff members walking the floor while I viewed from

afar roughly 30-40 staff members.

I personally spoke with Defendant, who confirmed to me yesterday that all14.

originals have been kept with regard to the duplicate ballots that have been made by her staff.

15. I carefully reviewed Plaintiffs Verified Complaint for Declaratory and Injunctive

Relief (attached as Exhibit B) and certify that the factual allegations in that document are

true and correct.

FURTHER AFFIANT SAYETH NATJQHT;;

-KEVIN D. KOGEN

The foregoing Affidavit was acknowledged before me this 9th day of November,

2018, by Kevin D. Rosen who is personally knowiij to me or who has produced

as identification, and who, after being duly sworn,

3

000157

deposes and says that he has read the foregoing Affidavit and states the same to be true and

correct.

Dated this 9th day of November, 2018.

7-

/^TARY PUBLIC, State of Florida

mm m m

Aa A f\l T) A~ ^ 1 f'AMANDA ARCE

A wy Public - Wilt Of fkrtls

I'] CwwiMoniiGG 075451_ h: MyComm. expAresXin 13, 2021iV Uondc^ Uiioogti Njlkr^MolerjMin.

Type/Print Name of Notary Public

w

My Commission Expires: CU/U1/ ' '

4

000158

EXHIBIT A

000159

' •

V

«

*

mi

4,

s,

1

.

.

r— ::

\

u

Iff J

\'

000160

EXHIBIT B

000161

Filing # 80580741 E-Filed 11/08/2018 07:39:41 PM



CASE NO.RICK SCOTT FOR SENATE,

JUDGEPlaintiff,

v.



County, Florida,

Verified Complaint

Defendant.

VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Plaintiff, Rick Scott for Senate ("Plaintiff'), through undersigned counsel, sues Susan

Bucher, solely in her capacity as the Supervisor of Elections of Palm Beach County, Florida

("Defendant"), and alleges.

JURISDICTION AND VENUE

This is a lawsuit for declaratory and injunctive relief under § 86.01 1, Fla. Stat.1.

2. Venue is proper in Palm Beach County, Florida because Defendant maintains her

principal places of business in Palm Beach County and because all or part of the claim for relief

at issue in this litigation arose in Palm Beach County.

PARTIES

3. Plaintiff is a federal campaign committee authorized to conduct political activity

throughout the state of Florida.

4. Defendant is responsible for overseeing the conduct of elections in Palm Beach

1

000162

County, including but not limited to the conduct of election personnel throughout the county in

the post-election process.

5. Plaintiff is supporting candidates to be voted upon in the election in Palm Beach

County and throughout Florida. Plaintiffs interests in enforcement of the election laws and

ensuring a fair election are adversely affected by the conduct complained of below.

6. All conditions precedent to the filing of this lawsuit have been performed, have

been waived, or are otherwise excused.

COUNT I - REQUEST FOR DECLARATORY AND INJUNCTIVE RELIEF AGAINST

DEFENDANT'S VIOLATION OF § 101.5614(4)(a), FLA. STAT. REGARDING THE

PROCESSING OF PHYSICALLY DAMAGED, "OVERVOTED," AND

"UNDERVOTED" ABSENTEE BALLOTS

7. Plaintiff adopts and realleges the allegations of paragraphs 1-6 above.

Section 101.5614(4)(a), Fla. Stat., the provision of the Florida Election Code at8.

issue in this lawsuit, governs the processing of physically damaged, "overvoted," and

"undervoted" absentee ballots. That provision states, in relevant part (emphasis added):









by the division pursuant to s. 102.166(4)

The language of § 101.5614(4)(a) is uncomplicated and unambiguous.9.

Regarding the processing of physically damaged absentee ballots,10.

§ 101.5614(4)(a) requires the Supervisor of Elections to make true duplicate copies of all such

damaged ballots "in the presence of witnesses."

Regarding the processing of "overvoted" and "undervoted" absentee ballots,11.

2

000163

§ 101.5614(4)(a) provides that only the Canvassing Board—not the Supervisor of Elections, or

any other entity—is authorized to determine "all valid votes . . . based upon rules adopted by the

division . . No provision of the Florida Election Code (or any other legal authority) confers

upon the Supervisor of Elections (or any other entity) the power to determine which "overvoted"

or "undervoted" absentee ballots contain "valid votes," within the meaning of § 101.5614(4)(a).

That power belongs exclusively to the Canvassing Board.

1 2. Defendant is presently violating the mandates of § 101.561 4(4)(a) in two respects.

First, on November 8, 2018, Defendant refused to allow Plaintiff s representatives13.

(or the representatives of any other political party) to properly witness Defendant's processing

and duplication ofphysically damaged absentee ballots.

14. In fact, Plaintiffs representatives have only been allowed outside of the proximity

required to properly witness Defendant's staff s review and processing of the ballots. Defendant

has effectively precluded Plaintiffs representatives from making any substantive observation of

the activities of Defendant's staff, in direct violation of § 101.5614(4)(a).

The statute requires Defendant to make true duplicate copies of all physically15.

damaged absentee ballots "in the presence of witnesses." § 101.5614(4)(a). As of the filing of

this lawsuit, Plaintiffs representatives have been prohibited from witnessing and/or actually

overseeing the duplication of physically damaged absentee ballots. Plaintiffs representatives

have not even been allowed to confirm Defendant's compliance with the statute's procedure for

processing physically damaged absentee ballots.

Despite having thousands of ballots to review, Defendant provided Plaintiff s16.

representatives with a very quick partial walk-through of the area and then did not allow any

further access in reasonable proximity to Defendant's staff. Moreover, as of mid-afternoon,

3

000164

upon information and belief Plaintiff learned that there were roughly 1500 faxed-in military

ballots and to the extent that these need to be converted to a ballot, the same issues noted above

took place.

17. Second, and even more alarmingly, Defendant has failed to allow the Palm Beach

County Canvassing Board to execute its statutory duty to determine "all valid votes" from

"overvoted" and "undervoted" absentee ballots. Instead, Defendant—in violation of the express

language of § 1 0 1 .56 14(4)(a)—has made determinations regarding voter intent herself (through

her staff), and has withheld a portion of "overvoted" and "undervoted" absentee ballots from the

Palm Beach County Canvassing Board, which the Board will not be provided for review

tomorrow. As prescribed in § 101.5614(4)(a), only the Palm Beach County Canvassing Board-

not Defendant, or any other entity—is empowered by law to determine "all valid votes" from

"overvoted" and "undervoted" absentee ballots.

18. Plaintiff notified Defendant about the violations of § 101.5614(4)(a), but as of the

filing of this lawsuit, Defendant has failed to cure such violations.

There is a present, bona fide controversy over whether Defendant is presently19.

violating the mandates of § 101.5614(4)(a).

20. Plaintiffs, its candidates', and its voters' rights will be violated if the Election

Code is not followed, as Defendant's ongoing violations of § 101.5614(4)(a) jeopardizes the

integrity of, and may alter the outcome of, the 2018 general election.

2 1 . Plaintiff has no adequate remedy at law.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays for judgment as follows:

A declaratory judgment that Defendant's refusal to allow Plaintiffsa.

representatives to witness Defendant's processing and duplication of physically damaged

4

000165

absentee ballots violates § 101.561 4(4)(a), Fla. Stat.

A declaratory judgment that Defendant's, rather than the Palm Beach Countyb.

Canvassing Board's, determination of "all valid votes" from "overvoted" and "undervoted"


A temporary and permanent injunction ordering Defendant to cease violatingc.

§ 101.56 14(4)(a), Fla. Stat., and ordering Defendant (i) to have the Supervisor's staff review the

duplicate ballots together with the original damaged ballots in the presence of the Plaintiff and

any other witnesses, and if there is an objection by the witnesses, require the objected to

duplicate ballots in question to be set aside for immediate review by the Canvassing Board once

the review process is complete of all physically damaged absentee ballots and duplicate ballots,

consistent with the procedure codified in § 101.5614(4)(a); and (ii) to allow the Palm Beach

County Canvassing Board (and only that entity) to determine valid votes from "overvoted" and

"undervoted" absentee ballots, consistent with the procedure codified in § 101.5614(4)(a).

The costs of this lawsuit, together with reasonable attorney's fees to the extentd.

provided by law; and

Such further relief as the Court deems proper.e.

VERIFICATION

I hereby swear or affirm under penalty of perjury that the foregoing is true and correct to

the best of my knowledge.

/s/Aliette D. Rodz

Counsel for the Plaintiff

5

000166

Respectfully submitted,Dated: November 8, 2018

/s/Aliette D. Rodz




Shutts & Bowen LLP


Miami, FL 33131

Office: (305) 347-7342

Facsimile: (305) 347-7742

-and-






Email: leslie.metz@gray-robinson. com



Email : jason.zimmerman@gray-

robinson.com

JeffAaron, Esq.



GrayRobinson, P.A.

515N. Flagler Dr., Suite 1425


Office: (561) 268-5727

Facsimile: (561) 886-4101

Attorneysfor Plaintiff

6

000167

EXHIBIT B

000168



CASE NO. 50-201 8-CA-014075RICK SCOTT FOR SENATE,


v.

Affidavit of Jonathan P. Hart, Esq.SUSAN BUCHER, solely in her capacity as


County, Florida,

Defendant.

AFFIDAVIT OF JONATHAN P. HART. ESQ.

)STATE OF FLORIDA

)COUNTY OF PALM BEACH )

BEFORE the undersigned authority personally appeared Affiant, Jonathan P. Hart, who

after first being duly sworn, deposes and says:

My name is Jonathan P. Hart and I am over the age of eighteen (18) years old.1.

I am a partner at the West Palm Beach, Florida office of Shutts & Bowen LLP,2.

which law firm represents Plaintiff Rick Scott for Senate ("Plaintiff') in this proceeding and

in connection with legal matters arising after the 2018 general election.

I make this affidavit based on my personal knowledge. All of the statements3.

contained herein are true and correct.

1

000169

On November 9, 2018, 1, acting in my capacity as Plaintiffs representative,4.

appeared at 7835 Central Industrial Drive, Riviera Beach, Florida 33404, where Defendant

Susan Bucher, solely in her capacity as Supervisor of Elections of Palm Beach County,

Florida ("Defendant"), is conducting the post-election ballot tabulation.

I arrived at Defendant's processing site at approximately 8:15 a.m. and departed5.

at approximately 7:45 p.m.

Other than lunch, I remained at Defendant's processing site for a continuous6.

period and, as such, I possess direct knowledge of the events outlined below.

The purpose of my appearance was, in part, to monitor Defendant's (and her7.

staffs) compliance with the Court's November 9, 2018 Temporary Injunction Order (the

"Order"), and with the procedures codified in § 101.5614(4)(a), Fla. Stat, regarding the

processing and duplication of physically damaged, "overvoted," and "undervoted" absentee

ballots.

8. Defendant recognized on the record during a public Canvassing Board Meeting

that she and her office knew about the Court's Order.

When I initially discussed the issue of compliance with Defendant's counsel, I9.

was told that Defendant did not have a plan for compliance.

10. The above alarmed me, and I sought clarification from Defendant's counsel on at

least two more occasions throughout the day and into the evening regarding Defendant's

compliance plan with the Court Order, but Defendant's counsel did not advise what, if

anything, Defendant was planning to do to comply with the Court's Order. In fact, as late as

6:00 p.m., Defendants' counsel could not answer a direct question regarding whether or not

the Canvassing Board intended to start its review in compliance with the Court's Order.

2

000170

11. There have been staff members working since 8:30 am this morning and at 7:45

pm when I left, there were still approximately 21 staff members working. I was advised that

staff members were separating pages of ballots to make the recount easier, and I witnessed,

from behind the ropes, staff members removing ballot pages. At no time was anyone able to

confirm to me that any of the staff members were working on complying with the Court's

Order.

FURTHER AFFIANT SAYETH NAUGHT.

JONATHAN P. HART

The foregoing Affidavit was acknowledged before me this 9th day of November,

2018, by Jonathan P. Hart who is . personally knoyvn to me or who has produced

as identification, and who, after being duly sworn,

deposes and says that he has read the foregoing Affidavit and states the same to be true and

correct.

Dated this 9th day ofNovember, 2018.

£-/-\74

NOTARY PUBLIC, State7of Florida r r

tmAMANDA ARCE

Notary Public - State of FloridaCommission #GG 075451

My Comm. Expires Jun 1 3, 202 1nMArftlDfr" /Hc£:

Type/Print Name ofNotary PublicBonded through National Notary Assn.

My Commission Expires: OR j 1 3> / I

TLHDOCS 14066736 1

3

000171

IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUITIN AND FOR PALM BEACH COUNTY, FLORIDA

CIRCUIT CIVIL DIVISION AA

CASE NO. 50-2018-CA-014075-XXXX-MBRICK SCOTT FOR SENATE, Plaintiff/Petitionervs.PALM BEACH COUNTY SUPERVISOROF ELECTIONS, SUSAN BUCHER; in her official capacity as Palm BeachCounty Supervisor of Elections,Defendant.________________________________________/

ORDER ON DEFENDANT’S EMERGENCY MOTION FOR RECONSIDERATION,STATUS CONFERENCE AND EMERGENCY STAY

THIS MATTER came before the Court on November 10, 2018 on Defendant Susan

Bucher’s Emergency Mot ion For Reconsiderat ion, Status Conference and Emergency

Stay. The Court has considered the Mot ions and Plaint if f ’s Verif ied Response In

Opposit ion, the part ies’ arguments made at the November 10, 2018 hearing, the case

f ile, and the applicable law.

Defendant ’s Mot ions are Denied in Part and Granted in Part . Defendant ’s Mot ion for

Reconsiderat ion is Granted in part . The Defendant ’s 10:00 a.m. deadline for compliance

with the Court ’s Order on Plaint if f ’s Emergency Mot ion for Temporary Injunct ion dated

November 9th , is extended to noon, November 10, 2018. It is hereby ordered that there

must be substant ial compliance with providing the original and duplicate ballots that

were reviewed solely by the Defendant ’s staf f by this deadline. These ballots shall be

reviewed by the Canvassing Board. Defendant ’s Mot ion for Emergency Stay is Denied.

Page 1 of 3000172

ORDERED that Defendant SHALL substant ially provide to the County Canvassing

Board any duplicate ballots and any “overvoted” or “undervoted” ballots that have not

yet been provided to the Board for its review no later than noon, Saturday, November

10, 2018.

DONE AND ORDERED , in West Palm Beach, Palm Beach County, Florida this 10thday of November, 2018.

COPIES TO: ALIETTE D. RODZ 200 S BISCAYNE BLVD

SUITE 4100MIAMI, FL 33131

[email protected]@[email protected]

ANDREW J BAUMANN 515 N. Flagler Dr., Ste. 1500West Palm Beach, FL 33401

[email protected]@llw-law.com

BRYAN ANTHONYALMEIDA

No Address Available [email protected]@shutts.com

GEORGE TY LEVESQUE No Address Available [email protected]@[email protected]

JASON A ZIMMERMAN No Address Available [email protected]@[email protected]

JEFFREY AARON No Address Available [email protected]@gray-

Case No. 50-2018-CA-014075-XXXX-MB

Page 2 of 3000173

[email protected]

LESLIE A METZ No Address Available [email protected]@gray-robinson.com

MARILYN LOZADA No Address Available [email protected] KATO No Address Available [email protected] M. SANTANA No Address Available [email protected]

[email protected] BUCHER No Address Available


Page 3 of 3000174

RE

CE

IVE

D, 1

1/13

/201

8 8:

30 A

M, C

lerk

, Fou

rth

Dis

tric

t Cou

rt o

f A

ppea

l

Filing # 80644599 E-Filed 11/10/2018 10:22:10 AM




Plaintiff,

Case No.: 50201 8CA0 1 4075XXXXMBDivision: Krista Marxv.

SUSAN BUCHER, solely in her capacity

as Supervisor ofElections ofPalm BeachCounty, Florida,

13CDD-O-

<

o

t: Defendant.3

/o

U

NOTICE OF APPEAL•G15

QNOTICE IS GIVEN Pursuant to 9.130, Fla. R. App. P., that Defendant/Appellant,

SUSAN BUCHER, solely in her capacity as Supervisor of Elections of Palm Beach County,

-C

t:3O

Uh

t-H

Florida, appeals to the Fourth District Court of Appeal, the Order on Plaintiffs Verified

Emergency Motion for a Temporary Injunction, dated November 9, 201 8, as well as the Order on

Defendant's Emergency Motion for Reconsideration, Status Conference and Emergency Stay,

dated November 10, 2018, copies ofwhich are attached hereto.

u

oCO

00

00

oCI

COCERTIFICATE OF SERVICE


Florida Court's E-filing Portal on this 10th day ofNovember, 2018 to:QUJ

>w

AlietieD. Rodz, Esquire

Shutts & Bowen LLP

200 S. Biscayne Blvd, Suite 4100Miami, FL 33131(305) 347-7342


LeslieArsenaultMetz, EsquireJason Zimmerman, Esquire

JeffAaron, Esquire

GrayRobinson, P.A.


o

a

Email: [email protected] West Palm Beach, FL 33401

(561)268-5727

Email: [email protected]@grav-robinson.com

[email protected]@grav-robinson.com

OI06O22I'2

FILED: PALM BEACH COUNTY, FL, SHARON R. BOCK, CLERK, 11/10/2018 10:22:10 AM

000175

Rick Scottfor Senate v. Susan Bucher, et at.Case No. 502018CA014075XXXXMB

Notice of Appeal

/s/ Andrew J. BaumannAndrew J. Baumann

Florida Bar No. 0070610Primary Email: [email protected] Email: [email protected] Email: [email protected] B. SantanaFlorida Bar No. 107677Primary Email: [email protected] Email: [email protected], Longman & Walker, P.A.515 North Flagler Drive, Suite 1500West Palm Beach, Florida 33401Telephone: (561) 640-0820Facsimile: (561) 640-8202

NATALIE A. KATOFlorida Bar No. 87256

Primary email: [email protected] email: [email protected], Longman & Walker, P.A.315 South Calhoun Street, Suite 830Tallahassee, FL 32202Telephone: (850)222-5702

Counselfor Defendants

201060221*2

000176

IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUITIN AND FOR PALM BEACH COUNTY, FLORIDA


Plaintiff,

CASE NO.: 50201 8CAO 14075XXXXMB

DIVISION: AAv.





Defendant

ORDER ON PLAINTIFF'S VERIFIED EMERGENCY MOTION FOR A TEMPORARY

INJUNCTION


for Senate's ("Plaintiff') Verified Emergency Motion for a Temporary Injunction ("Motion").

The Court has considered the Motion, Plaintiffs Verified Complaint for Declaratory and

Injunctive Relief ("Complaint"), the parties' arguments made at the November 9, 2018 hearing,




the Supervisor of Elections processed physically damaged, "overvoted," and "undervoted"


Supervisor's staff review the duplicate ballot together with the original damaged ballot in the




Exhibit A

000177

Palm Beach County Canvassing Board to determine valid votes from "overvoted" and

"undervoted" absentee ballots.


hereby


duplicate ballots and any "overvoted" or "undervoted" ballots that have not yet been provided to


DONE AND ORDERED at West Palm Beach, Florida, this 9th day ofNovember 201 8.

Office Q/ Toe Couflt

KRISTAMARX

Circuit Judge


Aliette Rodz, Esq.



Miami, FL 33131


[email protected]






[email protected]



301 E. Pine Street

Orlando, FL 32801


000178



CIRCUIT CIVIL DIVISION AA

CASE NO. 50-20 18-CA-014075-XXXX-MB


Plaintiff/Petitioner

vs.





Defendant.

ORDER ON DEFENDANT'S EMERGENCY MOTION FOR RECONSIDERATION,STATUS CONFERENCE AND EMERGENCY STAY

THIS MATTER came before the Court on November 10, 2018 on Defendant Susan

Buchefs Emergency Motion For Reconsideration, Status Conference and Emergency

Stay. The Court has considered the Motions and Plaintiffs Verified Response In

Opposition, the parties' arguments made at the November 10, 2018 hearing, the case

file, and the applicable law.

Defendant's Motions are Denied in Part and Granted in Part. Defendant's Motion for

Reconsideration is Granted in part. The Defendant's 10:00 a.m. deadline for compliance

with the Court's Order on Plaintiffs Emergency Motion forTemporary Injunction dated

November 9th , is extended to noon, November 10, 2018. It is hereby ordered that there

must be substantial compliance with providing the original and duplicate ballots that

were reviewed solely by the Defendant's staff by this deadline. These ballots shall be

reviewed by the Canvassing Board. Defendant's Motion for Emergency Stay is Denied.

Page 1 of 3Exh bit B

000179


ORDERED that Defendant SHALL substantially provide to the County Canvassing

Board any duplicate ballots and any "overvoted" or "undervoted" ballots that have not

yet been provided to the Board for its review no later than noon, Saturday, November

10,2018.

DONE AND ORDERED, in West Palm Beach, Palm Beach County, Florida this 10thday of November, 2018.

.50 •2010-CA-014075;XXXX. V/J Crista MautZ Chief Juage

50-201B-CA-014075-XXXX-MB 11/10/2010Krisia Marx

Chief Judge

COPIES TO:

[email protected]

[email protected]

[email protected]

515 N. Flagler Dr., Ste. 1500 [email protected] Palm Beach, FL 33401 [email protected]

No Address Available [email protected]

[email protected]

No Address Available george.levesque@gray-robinsoacom

teresa.barreiro@gray-

robinsoacom

mari-jo .lewis-wilkinson@gray-robinsoacom

ALIETTE D. RODZ 200 S B1SCAYNE BLVD

SUITE 4100

MIAMI, FL 33131

ANDREW J BAUMANN

BRYAN ANTHONY

ALMEIDA

GEORGE TY LEVESQUE

JASON A ZIMMERMAN No Address Available jasoaz immerman@gray-

robinsoacom

cindi.gamer@gray-robinsoacom

kathy5avage@gray-

robinsoacom

No Address AvailableJEFFREY AARON [email protected]

donna,flynn@gray-

Page 2 of 3

000180

Case No. 50-20 18-CA-0 14075-XXXX-MB

robinsoacom

shawria.tucker@gray-robinsoacom

No Address Available LeslieJvletz@gray-LESLIE A METZ

robinsoacom

kathleeamchugh@gray-

robinsoacom

No Address Available



[email protected]

[email protected]

[email protected]

[email protected]

MARILYN LOZADA

NATALIE KATO

RACHAEL M. SANTANA

SUSAN BUCHER No Address Available

S'AIF OF FLORIDA PALM BEACH COUNTY

1 h^rebi ceft',y that thca P Uifire foregoing is a true copy-IS H|* of the record In my office

4 1 ' ay or 1^0 ^ ?nHARON R^&QCKERK & OOMFTROIIER

/£

%

1IS

IlEFljWFPF' '

Page 3 of 3

000181

Filing # 80695949 E-Filed 11/13/2018 10:16:01 AM

IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA


Plaintiff,

v.

SUSAN BUCHER, solely in her capacity as Supervisor of Elections of Palm Beach County, Florida,

Defendant. /

Case No.: 502018CA014075XXXXMB Division: Krista Marx

AMENDED NOTICE OF APPEAL

NOTICE IS GIVEN Pursuant to 9.130, Fla. R. App. P., that Defendant/Appellant,

SUSAN BUCHER, solely in her capacity as Supervisor of Elections of Palm Beach County,

Florida, appeals to the Fourth District Court of Appeal, the Order on Plaintiff's Verified

Emergency Motion for a Temporary Injunction, dated November 9, 2018, as well as the Order on

Defendant's Emergency Motion for Reconsideration, Status Conference and Emergency Stay,

dated November 10, 2018, copies of which are attached hereto.

01060422-1

000182



Amended Notice of Appeal

01060422-1 2




Aliette D. Rodz, Esquire

Shutts & Bowen LLP

200 S. Biscayne Blvd, Suite 4100

Miami, FL 33131

(305) 347-7342


Attorney for Plaintiff


Leslie Arsenault Metz, Esquire

Jason Zimmerman, Esquire

Jeff Aaron, Esquire

GrayRobinson, P.A.



(561) 268-5727


[email protected]

[email protected]

[email protected]

/s/ Andrew J. Baumann

Andrew J. Baumann





Rachael B. Santana






West Palm Beach, Florida 33401

Telephone: (561) 640-0820

Facsimile: (561) 640-8202

NATALIE A. KATO





315 South Calhoun Street, Suite 830

Tallahassee, FL 32202

Telephone: (850) 222-5702

Counsel for Defendants

000183













IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA

RICK SCOTT FOR SENATE, CASE NO.: 502018CA014075XXXXMB Plaintiff, DIVISION: AA

v.

PALM BEACH COUNTY SUPERVISOR OF ELECTIONS, SUSAN BUCHER; in her official capacity as Palm Beach County Supervisor of Elections,

Defendant. ________________________________________/

02&'2 0/ 1-$+/4+((:3 6'2+(+'& '.'2)'/%Y MOTION FOR A TEMPORARY INJUNCTION


Uâ GT]PcTkb $iE[PX]cXUUj% JTaXUXTS ;\TaVT]Rg B^cXon for a Temporary Injunction (iB^cX^]j%(

HWT 9^dac WPb R^]bXSTaTS cWT B^cX^]& E[PX]cXUUks Verified Complaint for Declaratory and

>]Yd]RcXeT FT[XTU $i9^\_[PX]cj%& cWT _PacXTbk PaVd\T]cb \PST Pc cWT CêT\QTa 3& ,*+2 WTPaX]V&




cWT Gd_TaeXbâ Û ;[TRcX^]b _a^RTbbTS _WgbXRP[[g SP\PVTS& iêTae^cTS&j P]S id]STae^cTSj


Gd_TaeXbâkb bcPUU aTeXTf cWT Sd_[XRPcT QP[[^c c^VTcWTa fXcW cWT âXVX]P[ SP\PVTS QP[[^c X] cWT




Exhibit A

000184

EP[\ 8TPRW 9^d]cg 9P]ePbbX]V 8^PaS c^ STcTa\X]T eP[XS e^cTb Ua^\ iêTae^cTSj P]S

id]STae^cTSj PQbT]cTT QP[[^cb(


hereby


Sd_[XRPcT QP[[^cb P]S P]g iêTae^cTSj â id]STae^cTSj QP[[^cb chat have not yet been provided to


DONE AND ORDERED at West Palm Beach, Florida, this 9th day of November 2018.

_____________________________ KRISTA MARX Circuit Judge


Aliette Rodz, Esq. (Counsel for Rick Scott For Senate) 200 South Biscayne Blvd., Suite 4100 Miami, FL 33131 Email: [email protected]

[email protected]

Andrew J. Baumann, Esq. (Counsel for Palm Beach County Supervisor of Elections) 515 N. Flagler Dr., Ste. 1500 West Palm Beach, FL 33401 Email: [email protected] [email protected]

Jason Zimmerman, Esq. (Counsel for Rick Scott for Senate) 301 E. Pine Street Orlando, FL 32801 Email: [email protected]

000185

"#$%&'$(")(*"%$(+*)%$+,$%&'$,",%''#%&$-*."("/0$(")(*"%

"#$/#.$,+)$1/02$3'/(&$(+*#%45$,0+)"./

$

(")(*"%$("6"0$."6"7"+#$//

(/7'$#+8$9:;<:=>;(/;:=?:@9;AAAA;23

)"(B$7(+%%$,+)$7'#/%'5

$$$$$$$$$1CDEFGEHHI1JGEGEKFJL

MN8

1/02$3'/(&$(+*#%4$7*1')6"7+)

+,$'0'(%"+#75$7*7/#$3*(&')O$$$$$$$$$$$$$$$$$$$

EF$PJL$KHHEQEDC$QDRDQEGS$DN$1DCT$3JDQP

(KUFGS$7URJLMENKL$KH$'CJQGEKFN5

.JHJFVDFG8

WWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWI

$"#$%#&"'&$%(%'$)'*+,&%-%#.%'/0&-"*1"'&("#&#%/"',1$%#)*1"'2

,*)*3,&/"'(%#%'/%&)'$&%-%#.%'/0&,*)0

*41,&-)**%#"#$%&"'&()*&"+,&"-).*+")/"0)1&%'&*"234"5326")/"7&(&/8$/+"9.:$/

;.#,&*<:""=%&*>&/#?"@)+ A)/"B)*"C&#)/:A8&*$+ A)/4"9+$+.:"-)/(&*&/#&"$/8"=%&*>&/#?

9+$?D""E,&"-).*+",$:"#)/:A8&*&8"+,&"@)+ A)/:"$/8"FG$A/+ A( ( <:"H&*A( A&8"C&:I)/:&"J/

KII):A+ A)/4"+,&"I$*+ A&:<"$*>.%&/+:"%$8&"$+"+,&"0)1&%'&*"234"5326",&$*A/>4"+,&"#$:&

(AG&4"$/8"+,&"$IIGA#$'G&"G$LD"

7&(&/8$/+<:"@)+A)/:"$*&"7&/A&8"A/"F$*+ "$/8"M*$/+&8"A/"F$*+ D"7&(&/8$/+ <:"@)+ A)/"()*

C&#)/:A8&*$+ A)/"A:"M*$/+&8"A/"I$*+D"E,&"7&(&/8$/+<:"23N33"$D%D"8&$8GA/&"()*"#)%IGA$/#&

LA+,"+,&"-).*+ <:"K*8&*")/"FG$A/+ A( ( <:"=%&*>&/#?"@)+ A)/"()*"E&%I)*$*?"J/O./#+ A)/"8$+&8

0)1&%'&*"P+,"4"A:"&Q+&/8&8"+)"/))/4"0)1&%'&*"234"5326D"J+ "A:",&*&'?")*8&*&8"+,$+ "+,&*&

%.:+"'&":.':+$/+A$G"#)%IGA$/#&"LA+,"I*)1A8A/>"+,&")*A>A/$G"$/8"8.IGA#$+&"'$GG)+:"+,$+

L&*&"*&1A&L&8":)G&G?"'?"+,&"7&(&/8$/+<:":+$( ( "'?"+,A:"8&$8GA/&D"E,&:&"'$GG)+:":,$GG"'&

*&1A&L&8"'?"+,&"-$/1$::A/>";)$*8D"7&(&/8$/+ <:"@)+ A)/"()*"=%&*>&/#?"9+$?"A:"7&/A&8D"

1DXJ$"$KH$#Exhibit B

000186

"#$%#%$"+,$+"7&(&/8$/+",4)55":.':+$/+ A$GG?"I*)1A8&"+)"+,&"-)./+?"-$/1$::A/>

;)$*8"$/?"8.IGA#$+&"'$GG)+:"$/8"$/?"R)1&*1)+&8S")*"R./8&*1)+&8S"'$GG)+:"+,$+",$1&"/)+

?&+ "'&&/"I*)1A8&8"+)"+,&";)$*8"()*"A+:"*&1A&L"/)"G$+&*"+,$/"/))/4"9$+.*8$?4"0)1&%'&*

234"5326D""

$

$

$%&'()&$(%*$'*'$ 5$ EF$YJNG$1DCT$3JDQP5$1DCT$3JDQP$(KUFGS5$,CKLEVD$ GPEN$=:GP

VDS$KH$#KMJTZJL5$<:=>8

$

$

+%,-'.(/%0

$

/0"'%%'$.8$)+.[ <::$7$3"7(/4#'$306.

7*"%'$?=::

2"/2"5$,0$\\=\=

/)+.[]7&*%%78(+2

CZUXCEDLK]NPUGGN8QKT

VLKN]NPUGGN8QKT

/#.)'Y$-$3/*2/## 9=9$#8$,CDXCJL$.L85$7GJ8$=9::

YJNG$1DCT$3JDQP5$,0$\\?:=

DZDUTDFF]CC^;CD^8QKT

_VJNLKQPJN]CC^;CD^8QKT

3)4/#$/#%&+#4

/02'"./

#K$/VVLJNN$/MDECDZCJ ZDCTJEVD]NPUGGN8QKT

RZLUXXJL]NPUGGN8QKT

`'+)`'$%4$0'6'7a*' #K$/VVLJNN$/MDECDZCJ XJKLXJ8CJMJNbUJ]XLDS;

LKZEFNKF8QKT

GJLJND8ZDLLJELK]XLDS;

LKZEFNKF8QKT

TDLE;cK8CJÊN;ÊC_EFNKF]XLDS;

LKZEFNKF8QKT

-/7+#$/$["22')2/# #K$/VVLJNN$/MDECDZCJ cDNKF8dETTJLTDF]XLDS;

LKZEFNKF8QKT

QEFVE8XDLFJL]XLDS;

LKZEFNKF8QKT

_DGPS8NDMDXJ]XLDS;

LKZEFNKF8QKT

-',,)'4$//)+# #K$/VVLJNN$/MDECDZCJ -JHH8/DLKF]XLDS;LKZEFNKF8QKT

VKFFD8HCSFF]XLDS;

(DNJ$#K8$9:;<:=>;(/;:=?:@9;AAAA;23

1DXJ$1$KH$#

000187

LKZEFNKF8QKT

NPD^FD8GUQ_JL]XLDS;

LKZEFNKF8QKT

0'70"'$/$2'%[ #K$/VVLJNN$/MDECDZCJ 0JNCEJ82JGd]XLDS;

LKZEFNKF8QKT

_DGPCJJF8TQPUXP]XLDS;

LKZEFNKF8QKT

2/)"04#$0+[/./ #K$/VVLJNN$/MDECDZCJ TCKdDVD]CC^;CD^8QKT

#/%/0"'$B/%+ #K$/VVLJNN$/MDECDZCJ F_DGK]CC^;CD^8QKT

)/(&/'0$28$7/#%/#/ #K$/VVLJNN$/MDECDZCJ LNDFGDFD]CC^;CD^8QKT

ZRJFFEFXGKF]CC^;CD^8QKT

7*7/#$3*(&') #K$/VVLJNN$/MDECDZCJ $

(DNJ$#K8$9:;<:=>;(/;:=?:@9;AAAA;23

1DXJ$#$KH$#

000188

01063171-1

1S-2.027 Standards for Determining Voter’s Choice on a Ballot.

(1) Application. The standards in this rule apply to determine whether the voter has clearly indicated a definite choice for

purposes of counting a vote cast on a ballot in a manual recount as provided specifically by section 102.166, F.S.

(2) Direct recording electronic voting system.

(a) A vote cast on this voting system is valid for a particular candidate, issue choice, or judicial retention choice when the voter

marks the ballot electronically as specified in the ballot instructions.

(b) A vote cast on this voting system is valid for a particular write-in candidate when the voter types on the touch screen the

name of a write-in candidate in accordance with the ballot instructions.

(3) Optical scan voting system.

(a) A vote cast on this voting system is valid for a particular candidate, issue choice, or judicial retention choice when the voter

marks the ballot as specified in the ballot instructions.

(b) A vote cast on this voting system is valid for a particular write-in candidate when the voter writes in the name of a candidate

in the designated write-in space and fills in the oval or arrow next to the write-in candidate’s name.

(4) Manual review and tabulation.

(a) The standards under this subsection apply in all instances where a contest is not marked as specified in the ballot instructions

under subsection (2) or (3), and a manual review of the voter’s markings on a ballot is required to determine whether there is a clear

indication that the voter has made a definite choice in a contest.

(b) The canvassing board must first look at the entire ballot for consistency. Then the provisions of paragraph (c) apply to

determine whether the voter has made a definite choice in a contest, provided the voter has not marked any other contest on the

ballot, or if the voter has marked other contests, he or she has marked them in the same manner, subject to the exceptions in

subparagraphs 7., 10., and 15. The following are examples of valid votes after review for consistency:

000189

01063171-1

Ballot Situation 1: Recount in race of State Representative. The two

ovals in the first two races are filled in properly, but the voter has

circled the candidate’s name in the state representative race. Since

the voter did not mark the state representative race in the same

manner as in the other races, it cannot be determined whether the

voter has clearly indicated a definite choice for Don Nichols.

000190

01063171-1

Ballot Situation 2: Recount in race of State Representative. All

races on this ballot are marked in the same manner. Since the

ballot is consistently marked as in paragraph (c), the vote cast for

Michael Ross in the state representative race is a valid vote.

000191

01063171-1

Ballot Situation 3: Recount in State Representative race. Each race is

marked differently so that no consistency in marking exists. It cannot be

determined which marking, if any, is clearly indicative of the voter’s

choice. Therefore, the vote cast for Bernie West is not valid.

000192

01063171-1

(c) Subject to the provisions of paragraph (4)(b), the following marks constitute a valid vote as indicated for a particular

candidate, issue choice, or judicial retention choice:

1. The voter circles or underlines either the oval or arrow next to a candidate’s name, issue choice, or judicial retention choice.

Valid Vote for Ball Valid Vote for Ball


2. The voter circles or underlines the name of a candidate, issue choice, or judicial retention choice.

Valid Vote for Arnaz Valid Vote for Arnaz

000193

01063171-1

3. The voter circles or underlines the party abbreviation associated with a candidate’s name.

Valid Vote for Benny Valid Vote for Benny

4. The voter marks an “X,” a check mark, a cross, a plus sign, an asterisk or a star, any portion of which is contained in a single

oval or within the blank space between the head and tail of a single arrow. The marking must not enter into another oval or the space

between the head and tail of another arrow.


Invalid Vote Invalid Vote

000194

01063171-1

5. The voter draws a diagonal, horizontal, or vertical line, any portion of which intersects two points on the oval and which does

not intersect another oval at any two points. If it is a horizontal line, the line must not strike through the name of the candidate.



6. The voter draws a diagonal or vertical line that intersects an imaginary line extending from the center of the head of a single

arrow to the center of the tail of the same arrow, provided the diagonal or vertical line does not intersect the imaginary line joining

the head and tail of another arrow.

Valid Vote for Ball Invalid Vote

000195

01063171-1

7. The voter marks all the choices for a race but further clarifies a choice for a particular candidate, issue choice or judicial

retention choice by placing an additional mark or marks showing support solely for that particular candidate, issue or judicial

retention choice.

Valid Vote for Arnaz Valid Vote for Ball

Valid Vote to Keep Justice in Office

8. The voter strikes through all the choices for candidates, issue, or judicial retention except for one and also leaves the write-in

candidate space blank.

Valid Vote for Bruce

000196

01063171-1

9. The voter writes words such as “Vote for [candidate’s name],” “Count this vote” or “Vote no on amendment or referendum,”

or “I want this one,” provided there are no other markings in the race that would constitute a valid vote for a different candidate,

issue choice, or judicial retention choice pursuant to rule.

Valid Vote for Arnaz Invalid Vote

Valid “No” vote

000197

01063171-1

10. The voter fills in the majority of an oval, or the majority of the distance between the head and the tail of an arrow

designating a particular candidate, issue choice, or judicial retention choice, regardless of how other races on the ballot are marked.

Valid Vote for Arnaz Valid Vote for Arnaz

11. If a voter marks fewer candidates than there are positions to be elected for those offices, then the votes for all of those

marked candidates shall count. For example, if the voter is allowed to vote for 5 candidates in a special district election (“Vote for

5”) and the voter marks 2 candidates, the votes for those two marked candidates shall count.

Valid Votes for Arnaz and Bruce Valid Vote for Benny

000198

01063171-1

12. The voter draws an arrow from the arrow head to a particular candidate, issue choice or judicial retention choice or draws an

arrow head on the tail end of the arrow in lieu of filling in the void between the arrow head and the tail for the particular candidate,

issue choice or judicial retention choice.

Valid Vote for Arnaz Valid Vote for Bruce

13. The voter darkens or bolds the arrow head and the arrow tail but does not fill in the void between the arrow head and the

tail.

Valid Vote for Ball

000199

01063171-1

14. The voter punches the oval or the void between the arrow head and tail.

Valid Vote for Ball Valid Vote for Benny

15. The voter marks two or more choices similarly in one of the ways indicated in paragraphs 1.-14. and additionally writes in

comments such as “not this,” “ignore this,” “don’t want,” or “wrong,” or “Vote for [candidate’s name]” such that voter’s definite

choice is clearly indicated.

Valid Vote for Ball Valid Vote for Arnaz

000200

01063171-1

(5) Write-in Voting.

(a) A voter is determined to have made a definite choice for a write-in vote for the joint office of President/Vice-President if the

voter writes in either the last name of the candidate for President or the last name of the candidate for Vice-President. This standard

similarly applies to constitute a valid write-in vote for the joint office of Governor/Lieutenant Governor if the voter writes in either

the last name of the candidate for Governor or the last name of the candidate for Lieutenant Governor.

Valid Vote for Joint Qualified Write-in President and Vice President Candidates, Lenny Bruce and Sally Marr

(b) A voter is determined to have made a definite choice for a named candidate if the voter indicates a vote for a candidate named on

the ballot and also writes-in the name of that same candidate in the blank space for ‘write-in candidate’.

Valid Vote for Benny

000201

01063171-1

(c) A voter is determined to have made a definite choice for a particular candidate if the voter either writes in the name of a

qualified write-in candidate or the name of a candidate who is named on the ballot in that race, whether or not the oval or arrow

designating the selection of a write-in candidate has been marked.

Valid Vote for Smith, if Smith

is a qualified write-in candidate Valid Vote for Bruce

(d) If a voter abbreviates, misspells or varies the form of the name of a candidate in the write-in candidate space, it shall not

affect the determination of whether the voter has made a definite choice.

(e) If a voter indicates a vote for a candidate named on the ballot and also writes in a name of a different person in the write-in

candidate space, it shall be considered an overvote and none of the votes are valid for that race.


000202

01063171-1

(6) Overvotes. Except as otherwise provided in subsections (4) and (5), if the voter marks more choices than there are positions

or choices for that office or issue, it shall be considered an overvote and none of the votes are valid for that race.


(7) Valid Vote.

(a) A vote shall not count for any particular candidate, issue choice, or judicial retention choice at issue unless determined to be a

valid vote pursuant to this rule.

(b) If a voter does not mark a candidate, judicial retention choice, or issue choice in a contest, the valid votes for other candidates or

issues on the same ballot shall still be counted.

Rulemaking Authority 20.10(3), 97.021, 102.166(4) FS. Law Implemented 101.5614(5), 102.166(4), FS. History–New 6-6-02, Amended 10-6-08.

000203

Documents

AMENDED APPENDIX TO APPELLANT’S INITIAL BRIEF