Sarasota Alliance for Fair Elections, Inc. v. Browning

28 So. 3d 880, 35 Fla. L. Weekly Supp. 101, 2010 Fla. LEXIS 218, 2010 WL 455276
CourtSupreme Court of Florida
DecidedFebruary 11, 2010
DocketSC07-2074
StatusPublished
Cited by29 cases

This text of 28 So. 3d 880 (Sarasota Alliance for Fair Elections, Inc. v. Browning) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sarasota Alliance for Fair Elections, Inc. v. Browning, 28 So. 3d 880, 35 Fla. L. Weekly Supp. 101, 2010 Fla. LEXIS 218, 2010 WL 455276 (Fla. 2010).

Opinions

QUINCE, C.J.

This case is before the Court for review of the decision of the Second District Court of Appeal in Browning v. Sarasota Alliance for Fair Elections, Inc., 968 So.2d 637 (Fla.2d DCA 2007). In its decision the district court ruled upon the following question, which the court certified to be of great public importance:

IS THE LEGISLATIVE SCHEME OF THE FLORIDA ELECTION CODE SUFFICIENTLY PERVASIVE, AND ARE THE PUBLIC POLICY REASONS SUFFICIENTLY STRONG, TO FIND THAT THE FIELD OF ELECTIONS LAW HAS BEEN PREEMPTED, PRECLUDING LOCAL LAWS REGARDING THE COUNTING, RECOUNTING, AUDITING, CANVASSING, AND CERTIFICATION OF VOTES?

Id. at 654. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

For the reasons set forth below, we conclude that the Florida Election Code does not preempt the field of elections law and answer the certified question in the negative. As explained below, we quash that portion of the Second District’s decision that finds preemption, but approve [884]*884the court’s conclusion that portions of the proposed amendment conflict with the Election Code.

FACTS AND PROCEDURAL HISTORY

The Sarasota Alliance for Fair Elections (SAFE), a political action committee, sponsored an amendment to the Sarasota County charter. SAFE gathered 12,060 certified signatures of Sarasota County voters on petitions calling for a referendum on the proposed amendment. The amendment set forth detailed election requirements to be implemented in Sarasota County effective January 1, 2008. The proposed amendment provides:

Section 6.2A. Voter Verified Paper Ballot.
(1) No voting system shall be used in Sarasota County that does not provide a voter verified paper ballot. The voter verified paper ballots shall be the true and correct record of the votes cast and shall be the official record for purposes of any audit conducted with respect to any election in which the voting system is used. While votes may be tallied electronically, subject to audit, no electronic record shall be deemed a ballot.
(2) Any electronic voting machine shall allow the voter to correct his or her ballot by rejecting overvoted ballots at the time of voting, when voting in person at the polling place.
6.2B. Mandatory Audits. In addition to Voting System Audits allowed in F.S. 101.591, the Sarasota County Supervisor of Elections shall provide for mandatory, independent, random audits of the voting system in Sarasota County. These audits shall consist of publicly observable hand counts of the voter verified paper ballots in comparison to the machine counts. The audits shall be conducted on Election Day or within 24 hours after the closing of the polls, in clear public view, by a reputable, independent and nonpartisan auditing firm. These audits shall be conducted for a minimum of 5% of Sarasota County precincts, for 100% of the ballot issues in the selected precincts; and for a minimum of 5% of the total ballots cast in Early Voting periods, 5% of the total Absentee ballots, and 100% of any precinct where there are highly unusual results or events. In addition, audits of 5% of Provisional ballots shall be completed by the 3rd day following the election, and audits of 5% of Military and Overseas (UOCAVA) ballots shall be completed within 24 hours of a primary election and within 10 days following a general election. The random selection of precincts to be audited shall be made in a physical, non-electronic, public drawing at the Supervisor of Elections Office only AFTER machine tallies from the precincts have been made public. This public drawing shall be made on an entirely random basis using a uniform distribution in which all precincts in the County have an equal chance of being selected. If machine counts are unavailable for any reason, the voter verified paper ballots shall be counted by hand by the independent auditors and recorded as the vote count for that precinct. Immediately upon completion of the audit, the persons conducting the audit shall furnish a copy of an audit to the Supervisor of Elections and the Board of County Commissioners and post the results for public view and copying at the Supervisor of Elections Office. The audit shall be considered a Florida public record pursuant to Florida Statute 119.
6.2C. Certification of Election Results. No election shall be certified until the mandatory audits are complete and any cause for concern about accura[885]*885cy of results has been resolved. Any discrepancies between machine counts and hand counts greater than 1% or, if less than 1% but sufficient to change the outcome of any measure, shall initiate a comprehensive manual audit of the voter verified paper ballots in all precincts and of all Absentee, Provisional, and Military and Overseas (UOCAVA) ballots. Such comprehensive manual audit shall be completed within 5 days after the election, with the exception of comprehensive audits of Military and Overseas ballots, which shall be completed within 5 days after a primary election, and within 10 days after a general election. Audits shall be completed by a reputable, independent and non-partisan auditing firm as in 6.2B above. A copy of these audits shall be retained for public view and copying at the Supervisor of Elections Office in addition to being given the County Commissioners. These audits shall be considered Florida public records pursuant to Florida Statute 119.

In August 2006, the Board of County Commissioners of Sarasota County filed a complaint in circuit court seeking a declaration of the constitutionality of the proposed amendment. The complaint named SAFE and Sarasota Supervisor of Elections Kathy Dent as defendants. The Board was concerned that the amendment was preempted by the state election laws or was in conflict with those laws. In turn, SAFE filed a petition for an emergency writ of mandamus, seeking an order compelling the Board and Supervisor Dent to include the amendment on the November 2006 election ballot. The two cases were consolidated based on the Board’s motion. The Board subsequently amended its complaint to include Florida Secretary of State Kurt Browning as a defendant.

Following an evidentiary hearing on the matter, the circuit court found that the proposed amendment was neither preempted by nor in conflict with Florida law. Thus, the circuit court concluded that the amendment was not unconstitutional in its entirety and ordered that it be submit-, ted to the electorate. The Board did not seek a stay of the circuit court’s final judgment. The amendment was placed on the November 2006 ballot and approved by a majority of the Sarasota County electorate. Secretary Browning and Supervisor Dent joined the Board in appealing the final judgment to the Second District Court of Appeal.

On appeal, a majority of the Second District panel found that the Florida Election Code impliedly preempted the charter amendment in its entirety and that the provisions of the charter amendment also directly conflicted with the Florida Election Code. Thus, the majority of the district court found the charter amendment to be unconstitutional. The district court also certified the question quoted above as being of great public importance and this Court granted review on this basis.

ISSUES AND ANALYSIS

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Bluebook (online)
28 So. 3d 880, 35 Fla. L. Weekly Supp. 101, 2010 Fla. LEXIS 218, 2010 WL 455276, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sarasota-alliance-for-fair-elections-inc-v-browning-fla-2010.