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IN THE CIRCUIT COURT
SEVENTH JUDICIAL CIRCUIT OF FLORIDA
IN AND FOR VOLUSIA COUNTY, FLORIDA
SUSAN ROSE PYNCHON, }
Plaintiff }
}
Vs. } CASE NO. 2004 11437 CIDL
}DIV. 10
VOLUSIA COUNTY CANVASSING BOARD }
And ANN McFALL, }
Defendants }
}
I.
AMENDED COMPLAINT TO CONTEST ELECTION
Plaintiff, Susan Rose Pynchon, sues the Volusia County Canvassing Board and Ann McFall, Defendants, and alleges:
1. This is an action brought under §102.168, Fla. Stats. (2004) to contest the certification that Ann McFall received more votes in the November 2 General Election in Volusia County, Florida, than did Patricia Northey.
2. Under §102.151, Fla. Stats. (2004), Defendant Volusia County Canvassing Board was required to immediately file its certification and results with the Department of State. Plaintiff has learned that not only did the purported certification fail to comply with law, but also that the transmittal of the purported certification results to the Department of State took place via fax on November 13, 2004, the effective date of the purported certification. Plaintiff filed its complaint on November 23, 2004, clearly within the 10 day period prescribed by 102.168(2), Fla. Stats. (2004). The complaint was timely filed and this court has jurisdiction.
3. Plaintiff is informed and believes that the only public notice for all meetings of the Volusia County Canvassing Board from October 29, 2004, through November 13, 2004, was published one time in the Daytona Beach News Journal on October 10, 2004, a copy of the proof of publication of which is attached hereto as Exhibit 1.
4. Exhibit 1 failed to provide reasonable notice to the public of the times and places at which the Volusia County Canvassing Board would meet during that period to canvass the absentee ballots cast in the November 2, 2004 General Election; §102.141(2), Fla. Stats. (2004); §286.011, Fla. Stats. (2004).
5. No public notice of the meeting of Defendant Volusia County Canvassing Board on November 12, 2004 was given in Exhibit 1, even though overseas military absentee ballots were to be canvassed on that date. See: Rule 1S-2.013(7), F.A.C.; Harris v. Florida Elections Canvassing Commission, 122 F. Supp. 2000 (U.S.D.C.N.D.FL 2000); aff’d 235 F.2d 528, cert den. 531 U.S. 106.
6. Because overseas military absentee ballots were in fact canvassed on November 12, 2004, without public notice of that meeting as required by §102.141(2) Fla. Stats. (2004), all actions taken at that meeting on November 12, 2004, are not binding, and are invalid.
7. No reasonable notice of the meeting at which the results of the November 2, 2004 General Election were to be certified by Defendant Volusia County Canvassing Board was given in Exhibit 1, even though such notice was required by Article I, §24(b), Fla. Const. and §286.011, Fla. Stats. (2004). Any action taken at that meeting, therefore, is invalid and not binding.
8. Plaintiff is aware of only one newspaper article that referred to a date on which the Volusia County Canvassing Board planned to meet to canvass overseas ballots and to certify the results of the November 2, 2004 General Election. That article was published on November 6, 2004, in The News-Journal. The article stated “They also have to count write-in ballots and process remaining overseas military ballots before certifying the results on Nov. 13.” The article gave no time or place or date for the review of overseas military absentee ballots, and a date for the certification meeting different from when it actually occurred.
9. Because the actions of Defendant Volusia County Canvassing Board on November 12, 2004 were not binding and were invalid, having been taken at a meeting held in violation of Article 1, Section 24(b) Fla. Const., and §286.011 and §102.141(3), Fla. Stats. (2004), Plaintiff’s complaint was timely filed, and this court has jurisdiction.
10. At the time that Defendant Volusia County Canvassing Board purportedly certified the results of the November 2, 2004 General Election, essential portions of the paper records of the votes cast in 59 out of a total of 179 precincts were missing, according to records provided to Plaintiff by the Supervisor of Elections. Defendant Volusia County Canvassing Board’s purported certification of election results in the absence of those records violated §102.141(3), Fla. Stats. (2004), and is accordingly invalid.
11. Section 102.168(2), Fla. Stats. (2004) requires a complaint to contest an election to be filed “with the clerk of the circuit court within 10 days after midnight of the date the last county canvassing board empowered to canvass the returns certifies the results of the election being contested.” (Emphasis supplied).
12. Even if the Defendant had validly certified the results of the November 2, 2004, General Election on November 12, 2004, that statute permits a complaint contesting that certification to be filed with the clerk of the circuit court at any time before midnight on November 22, 2004.
13. Interpreting §102.168(2), Fla. Stats. (2004) to require such a complaint to be filed before 4:30 PM on November 22, 2004, when the circuit court clerk’s office closes for the day, instead of at any time before midnight on November 22, 2004, would be to require that complaint to be filed in less than ten days after midnight of the certification date.
14. Interpreting §102.168(2), Fla. Stats. (2004) to require such a complaint to be filed when the clerk’s office is closed would be to require the impossible.
15. It necessarily follows that an election contest complaint filed on the next day on which the clerk’s office is open - as was the instant complaint - must be deemed to be timely. See: Rule 1.090(e) Fla. R. Civ. P.; Cassas v. Lazan, 488 So.2d 671 (Fla. 4th DCA 1986) (“We hold that when a court designates a holiday, the day so designated shall be considered a legal holiday in computation of any times pursuant to the Florida Rules of Civil Procedure”).
16. The Supervisor of Elections, as a member and agent of Defendant Volusia County Canvassing Board, or her agents or employees, unreasonably delayed or failed to provide complete information about election irregularities and procedures, voting machine malfunctions, and election results, not only in response to legitimate public records requests, but also to the Department of State as part of Defendant Canvassing Board’s statutorily required Report on Conduct of Election.
17. The Supervisor of Elections, as a member and agent of Defendant Volusia County Canvassing Board, or her agents or employees, attempted to discard and destroy some of the public records requested, after the requests thereof had been made, all in an attempt to wrongfully deprive Plaintiff of the information required to prepare and file this complaint in a timely manner. The Supervisor of Elections still has not provided much of the information requested. The Canvassing Board is accordingly estopped from asserting the untimely filing of this complaint.
18. Plaintiff is an elector, resident and qualified to vote in Volusia County, Florida, residing at 32 Park Avenue, DeLeon Springs, FL 32130.
19. Defendant Volusia County Canvassing Board is a public board of the County of Volusia comprised of Joie Alexander, as a Member of the Volusia County Council, the Honorable Steven de Laroche, as a County Judge, and Deanie Lowe, as Supervisor of Elections. See: §102.141(1), Fla. Stats. (2004)
20. Defendant Ann McFall, 1401 Clipper Terrace, Deltona, FL 32725, is the candidate certified by the Defendant Canvassing Board to have won the November 2, 2004 General Election for Volusia County Supervisor of Elections.
21. An election may be set aside for “misconduct, fraud, or corruption on the part of any election official or any member of the canvassing board. . . sufficient to change or place in doubt the result of the election “ or “eceipt of a number of illegal votes or rejection of a number of legal votes sufficient to change or place in doubt the result of the election.” §120.168(3)(a) and (c), Fla. Stats. (2004).
22. In Beckstrom v. Volusia County Canvassing Board, et al, 707 So.2d 720 (Fla. 1998), the Florida Supreme Court said: “. . . if a court finds substantial noncompliance with statutory election procedures and also makes a factual determination that reasonable doubt exists as to whether a certified election expressed the will of the voters, then the court in an election contest brought pursuant to section 102.168, Florida Statutes (1997), is to void the contested election even in the absence of fraud or intentional wrongdoing.”
23. The following facts demonstrate misconduct “. . . sufficient to . . . place in doubt the result of the election” or “receipt of a number of illegal votes or rejection of a number of legal votes sufficient to change or place in doubt the result of the election,” or “substantial noncompliance with statutory election procedures . . . ” such that “a reasonable doubt exists as to whether a certified election expressed the will of the voters, . . . ”:
a. The polls were opened early and closed late during the early voting period without notice to the general public, which gave special treatment to a few voters.
b. Ballots completed during early voting were not secured using the same safeguards statutorily required on election day, bringing into question the chain of custody for said ballots. For example, early voting ballots were kept in a vault frequently accessed by various elections office personnel; they were transported from the early voting sites to the elections office by members of the same political party instead of by members of two different political parties as required on election day. The ballots were carried and stored, not in the special poly-mesh carrying cases with numbered seals that are used on election day, but in scotch-taped manila envelopes.
c. Private citizens, who were not poll workers or employees of the elections office, had keys, and therefore unrestricted 24-hour access to the areas where voting machines and memory cards were stored during the entire 14 days of Early Voting.
d. On the last day of Early Voting, in a heavily Democratic, heavily African American voting site, a total of 13,244 votes were “lost,” allegedly due to a memory card failure. The paper ballots reflecting those 13,244 “lost” votes were returned to the elections office nightly by two Republicans. Those 13,244 paper ballots were inadequately secured at the elections office during the Early Voting period. Also, Plaintiff is informed and believes that the affected machine may have failed after ONE week of voting as well as after two weeks of voting, during the Early Voting period.
e. Complete records of those voters who had voted early were not provided to poll workers or poll watchers in sufficient time to allow poll workers to detect and prevent voters from voting more than once, nor to allow poll watchers to challenge voters.
f. The lists provided to precinct poll workers of eligible voters did not include the names of many early and absentee ballot voters creating an opportunity for voters to vote more than once.
g. A list of all voters for the November 2, 2004 General Election was reportedly not available until December 1, 2004, well after the purported certification date for the results of that election.
h. Information provided in response to records requests was incomplete and inaccurate.
i. Absentee ballot summaries found in the elections office trash showed numbers different both from the official results and from those results provided to Plaintiff.
j. On December 2, 2004, the elections office provided an electronic list of 44,150 absentee votes. The official Statement of Votes Cast (SOVC), however, reports that only 43,934 absentee ballots were cast.
k. The official total of votes cast was changed following the purported certification of the election. The SOVC published on the Volusia County elections office website on November 15, 2004, stated that 229,580 votes were cast in the November 2, 2004 General Election. The purported certification of the results of the November 2, 2004 General Election states that either 229,291, or 229,193 (on different pages of the certification) votes were cast in that General Election.
l. Plaintiff is informed and believes that at least six precinct voting machines failed to report their totals after the polls closed. Paper ballots allegedly associated with those machines were then re-scanned by elections office personnel in the elections office without public notice or independent observation.
m. Many public records, including original voting machine results tapes, and at least one signed voting machine results tape were found in the elections office trash. These discarded items are statutorily required to be kept for 22 months following the election.
n. Many of the records requested from, but not yet furnished by, the elections office were found in the elections office trash.
o. Results from some of the voting machine tapes found in the elections office trash did not match the results of the copies of voting machine tapes from the same precincts that were furnished by elections officials. In some cases, the inconsistencies were in the hundreds of votes. In particular, Precincts 201 and 716 showed significant discrepancies.
p. In at least seven precincts there were significantly more votes reported than voters listed as having voted according to the electronic list of voters supplied by the elections office. In one precinct, for example, with only 486 persons listed as having voted, a total of 540 votes were cast; ten percent more votes cast than voters listed. Plaintiff is informed and believes that perhaps as many as 750 more votes were cast at the precincts on election day than there were voters listed as having voted at the precincts on election day.
q. Three different memory cards were used for Precinct 716. Two of the voting machine results tapes, from two different memory cards, had voting totals different from each other. A portion of the original voting machine tape that was printed at Precinct 716 after the poll closed, which is part of the record of the problems that occurred in Precinct 716, was found in the elections office trash. Problems with the voting machine results from Precinct 716 were not publicly reported nor included in the required elections office official report to the Department of State.
r. The Volusia County elections office website listed an unofficial total of only 422 votes for Precinct 215 as of November 4, two days after the election. The official total given on November 15, 2004, was 880 total votes. Computer logs recovered from the elections office trash reveal that the results from the Precinct 215 voting machine were not uploaded until November 15, 2004, three days after the purported certification of the results of all precincts.
s. Since voting machine results tapes should be run only once after the election is closed, there should be no discrepancies between copies of tapes from the same precinct. Memory cards are locked when the election is closed, and become “read only.” The only way to obtain a different result from a given voting machine is to change the memory card and re-scan ballots.
t. Volusia County had more voting machine memory card failures than all of its supplier’s other Florida customers combined.
u. The Volusia County elections office reported 17 voting machine memory card failures on November 3. The number of reported memory card failures increased to 25 prior to the purported certification date of November 12, 2004. Memory card failures can radically alter vote counts. In 2000, for example, an alleged memory card failure resulted in one Volusia County precinct registering a minus 16,000 votes for one candidate.
v. Information on 32 additional pre-election memory card failures, found in the elections office trash, was neither publicly reported nor included in the required Report on Conduct of Election filed with the Department of State.
w. Computer logs show evidence of at least two attempts to remotely access the Global Election Management System (GEMS) central tabulator during the November 2, 2004 General Election.
x. A computer screenshot printout made on November 17, 2004 (and found in the elections office trash) demonstrated that the GEMS computer at that time had two networked hard drives, despite assertions by the Supervisor of Elections and requirements that this computer was a stand alone, secure computer, i.e., not part of a network.
y. There were other significant irregularities in procedures and/or other required procedures that were not followed during the November 2, 2004 General Election.
24. The election results for 59 of Volusia County’s 179 precincts can not be verified using the information provided by the elections office. The votes from these 59 precincts, most of them in heavily Democratic, heavily African American precincts, constitute more than enough votes to change the outcome of the election in the Supervisor of Elections race.
25. There was ample opportunity for private citizens to tamper with voting machines and memory cards, due to their unrestricted 24-hour access to those machines and memory cards throughout the Early Voting period.
26. There was ample motive and opportunity to tamper with paper ballots, due to the partisan affiliation of elections office personnel, and the inadequate security and storage of all ballots that permitted 24-hour access to those ballots by said personnel.
27. Plaintiff is reasonably concerned because access to the memory cards, election computers and servers, voting machine result tapes and paper ballots is not presently restricted, creating ample opportunity for tampering with that critical evidence. Plaintiff accordingly requests that This Honorable Court immediately order the Supervisor of Elections to seal and sequester all voting machine memory cards, voting machine results tapes, all paper ballots, and all computers and servers pertaining to or used for vote tabulation during the November 2, 2004 General Election in Volusia County, until further order of the court.
WHEREFORE, Plaintiff respectfully requests that this court order the immediate sealing of all voting machine memory cards, voting machine results tapes, and all computers and servers pertaining to or used for vote tabulation during the November 2, 2004 General Election in Volusia County, until further order of the court, and after hearing the evidence in this cause, that it void and set aside the election for Supervisor of Elections held on November 2, 2004, and order that a new election be held for that office.
II.
COMPLAINT TO INVALIDATE ACTIONS OF THE
VOLUSIA COUNTY CANVASSING BOARD
Plaintiff, Susan Rose Pynchon, sues the Volusia County Canvassing Board and alleges:
28. This is a complaint to invalidate all actions of the Volusia County Canvassing Board taken on November 12, and 13, 2004 on the ground that such actions were taken at a meeting held without reasonable notice to the public as required by Article 1, §24(b), Fla. Const., §286.011, Fla. Stats. (2004), and §102.141(2) Fla. Stats. (2004).
29. The allegations of paragraphs 18-19, 3-8, and 23 a. through l., inclusive, of Count I hereof are re-alleged and hereby incorporated herein by reference.
30. Defendant Volusia County Canvassing Board is subject to the requirements of Article I, Section 24(b), Fla. Const., §286.011, Fla. Stats. (2004), and §102.141(2), Fla. Stats. (2004), including the requirement to give the public “reasonable notice” of its meetings, and in particular of any meeting the purpose of which is to canvass absentee ballots.
31. Reasonable notice means notice sufficient to “apprise the public of the pendency of matters that might affect their rights, afford them the opportunity to appear and present their views, and afford them a reasonable time to make an appearance if they wished to.” Op. Atty. Gen., 73-170. Rhea v. City of Gainesville, 574 So.2d 221 (Fla 1st DCA 1991).
32. Specifically, reasonable public notice means notice of the date, time and place of said public meetings. Law and Information Services, Inc. v. City of Riviera Beach, 670 So.2d 1014, 1016 (Fla. 4th Dist. Ct. App. 1996); TSI Southeast, Inc. v. Royals, 588 So.2d 309, 310 (Fla. 1st Dist. Ct. App. 1991).
33. The meeting of the Volusia County Canvassing Board on November 12, 2004, was held without reasonable notice to the public as required by Article I, § 24(b), Fla. Const., and §286.011, Fla. Stats. (2004).
34. §102.141(2), Fla. Stats. (2004) also specifically provides: “. . . Public notice of the time and place at which the county canvassing board shall meet to canvass the absentee electors' ballots and provisional ballots shall be given at least 48 hours prior thereto by publication once in one or more newspapers of general circulation in the county, . . .”
35. Exhibit 1 did not specify a time or place for counting the absentee ballots for military overseas voters, it did not accurately inform voters of the opportunity to vote before or after official hours, or of the re-count of the early voting ballots after the machine failures, or give a time for all meetings, or continued meetings, or adjourned and re-convened meetings, of Defendant Volusia County Canvassing Board. The failure to provide adequate notice of these meetings and activities constitutes a material breach of all cited public notice requirements.
36. All actions taken at the Volusia County Canvassing Board meeting on November 12, 2004, are accordingly void ab initio. Town of Palm Beach v. Gradison, 296 So. 2d 473 (Fla. 1974); Blackford v. School Board of Orange County, 375 So. 2d 578 (Fla. 5th DCA 1979; Silver Express Company v. District Board of Lower Tribunal Trustees, 691 So. 2d 1099 (Fla. 3d DCA 1997); and TSI Southeast, Inc. v. Royals, 588 So. 2d 309 (Fla. 1st DCA 1991).
37. Plaintiff was required to and did employ an attorney to represent her in these proceedings, and is entitled to recover a reasonable fee for her attorney under the provisions of §286.011(4), Fla. Stats. (2004).
WHEREFORE, Plaintiff respectfully requests that this court enter an order invalidating all actions of the Volusia County Canvassing Board taken on November 12, 2004, and assessing a reasonable attorney’s fee for her attorney against Defendant Volusia County Canvassing Board.
III.
PETITION FOR A WRIT OF MANDAMUS
Plaintiff, Susan Rose Pynchon, sues the Volusia County Canvassing Board and alleges:
38. This is a petition for a Writ of Mandamus to require the Volusia County Canvassing Board to de-certify the Volusia County results of the 2004 General Election, and to conduct a manual inspection and recount of the paper ballots cast in the race for Volusia County Supervisor of Elections during the 2004 General Election.
39. This court has jurisdiction over this matter under Art. V, §5(b), Fla. Const.
40. The allegations of paragraphs 18-19, 3-8, and 23 a. through z., inclusive, of Count I hereof are re-alleged and hereby incorporated herein by reference.
41. §102.141(3), Fla. Stats. (2004) provides:
The canvass, except the canvass of absentee electors' returns and the canvass of provisional ballots, shall be made from the returns and certificates of the inspectors as signed and filed by them with the county court judge and supervisor, respectively, and the county canvassing board shall not change the number of votes cast for a candidate, nominee, constitutional amendment, or other measure submitted to the electorate of the county, respectively, in any polling place, as shown by the returns. All returns shall be made to the board on or before 2 a.m. of the day following any primary, general, special, or other election. If the returns from any precinct are missing, if there are any omissions on the returns from any precinct, or if there is an obvious error on any such returns, the canvassing board shall order a recount of the returns from such precinct. Before canvassing such returns, the canvassing board shall examine the tabulation of the ballots cast in such precinct and determine whether the returns correctly reflect the votes cast. If there is a discrepancy between the returns and the tabulation of the ballots cast, the tabulation of the ballots cast shall be presumed correct and such votes shall be canvassed accordingly.
42. Defendant Volusia County Canvassing Board’s purported certification of the results of the 2004 General Election failed to comply with the requirements of §102.141(3), Fla. Stats. (2004), in that their purported certification was made without signed certificates of the inspectors, and despite missing and inaccurate returns.
43. Defendant Volusia County Canvassing Board has failed and refused, and continues to refuse to comply with their mandatory statutory duty to order an inspection and recount of the returns from all precincts with missing and inaccurate returns. See: State v. Smith, 107 Fla. 134, 144 So. 333 (1932):
The court must find a legal basis for ordering a recount before doing so, and ‘if the facts in evidence which impeach the reliability of such returns and certificates as evidence, because of some substantial failure on the part of the election officers to proceed according to law in making or arriving at their returns and certificate, the ballots themselves then become the best evidence of how the electors voted, and such ballots may be examined by the court as original evidence, when necessary to verify the accuracy of the returns.’
44. By reason of these acts and failures to act, Plaintiff has been wrongfully deprived of a fair election for the office of Volusia County Supervisor of Elections.
45. Plaintiff has no plain, speedy, and adequate remedy in the ordinary course of the law other than the issuance by this court of a writ of mandamus.
WHEREFORE, Plaintiff respectfully requests that this court issue an alternative writ of mandamus to the Defendant Volusia County Canvassing Board, commanding them to appear before this court and show cause, if any they have, why they refuse and neglect to order a manual recount of the paper ballots from all precincts with missing and inaccurate returns, and why a writ of mandamus should not issue from this court commanding Defendant Volusia County Canvassing Board to order a recount of the paper ballots from all precincts with missing or inaccurate returns.
SUSAN ROSE PYNCHON
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing amended complaint has been furnished to Daniel D. Eckert, County Attorney, 123 W. Indiana Avenue, DeLand, FL 32720, and to Theodore R. Doran, P.O. Drawer 15110, Daytona Beach, FL 32115, by U.S. Mail, this 13th day of December, 2004.
DANIEL R. VAUGHEN, P.A.
Attorney for Plaintiff
P.O. Box 364
DeLand, FL 32721-0364
(386) 734-8914
Fla. Bar No. 083486
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