Robert C. TOUCHSTON, Deborah Shepperd                    )
and Diana L. TOUCHSTON,                                             )
                                                                                      )
                                           Plaintiffs,                           )
    v.                                                                               ) CIVIL ACTION NO. 600CV-
                                                                                      )                  1510-ORL-28-C
Michael McDERMOTT, Ann McFALL, Pat                          )
NORTHY, Theresa LePORE, Charles E.                            )
BURTON, Carol ROBERTS, Jane CARROLL,                      )
Suzanne GUNZBURGER, Robert LEE, David                     )
LEAHY, Lawrence KING, Jr., and Miriam LEHR,             ) Plaintiffs’ Verified Complaint for
in their official capacities as members of the County    ) Declaratory& Injunctive Relief
Canvassing Boards of Volusia, Palm Beach,                   )
Broward and Miami-Dade Counties, respectively;          )
and Katherine HARRIS, in her official capacities           )
as Secretary of the Department of State and as a          )
member of the Elections Canvassing Commission,         )
and Clay ROBERTS and Bob CRAWFORD, in                    )
their official capacity as members of the Elections        )
Canvassing Commission,                                                )
                                                                                     )
                           Defendants.                                        )

Plaintiffs, by counsel, seeking declaratory and injunctive relief against Defendants, state the following:

This is a civil action for declaratory and injunctive relief arising under the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States. This action challenges the constitutionality of Fla. Stat. § 102.166, which allows a candidate in a statewide election to seek a manual recount of ballots in selected precincts of selected counties with the intent and expectation of favorably affecting the margin of votes separating the candidate and his or her opponent. Under Fla. Stat. § 102.166, these plaintiffs, and others similarly situated, are denied the equal protection of the laws accorded them by the Fourteenth Amendment to the Constitution of the United States by virtue of the debasement of their votes.

In this case, a statewide election was held on Tuesday, November 7, 2000, to select electors for the office of the President of the United States of America, pursuant to Art. II, sec 1., cl. (4) of the Constitution of the United States. See also 3 U.S.C. § 1. The Democratic candidate, Vice President Albert Gore, Jr., who lost the popular vote in Florida on election night and who lost the automated recount of the votes conducted thereafter, has now requested a manual recount in only four counties where the ratio of votes in his favor greatly exceeded the votes for his principal opponent, Governor George W. Bush, the Republican candidate. One of the purposes of conducting a manual recount under Florida law is to visually examine the ballot in order to count legal votes that were not tabulated by machine. The only established objective standard under Florida law for determining the voter’s intent, however, is for the voter to complete the casting of his or her vote by punching out the chad on the ballot for the candidate of the voter’s choice. In the vast majority of instances, these votes are counted by automated tabulation. Occasionally, punching through a ballot results in a "hanging chad," which is separated from the ballot on three sides and which is not counted in the automated tabulation of the vote. This is a valid vote that is properly cast. However, under a manual recount, county canvassing boards have gone way beyond "hanging chads" to count votes using vague, subjective, arbitrary and capricious tests, developed on an ad hoc basis and which are applied inconsistently. Thus, the county canvassing boards have adopted different standards that are used when the ballots are counted in a manual recount than when the votes are counted by automatic tabulation. As a result, when a manual recount is confined to the counties selected by Vice President Gore alone, in which he had the preponderance of the vote, and that utilizes vague, subjective, arbitrary and capricious tests to determine who the voter voted for, the result will be a net addition of votes for that candidate, as has occurred in this case.

Furthermore, opposing candidates are statutorily prevented from protecting the integrity of the vote from manipulation by candidates and election officials conducting selective manual recounts of votes. Under Fla. Stat. § 102.166, opposing candidates are not afforded notice and an opportunity to be heard before a request for a manual recount is authorized, actual notice of an authorized manual recount is not given to an opposing candidate, an opposing candidate is prohibited from requesting that additional precincts be manually counted, after the canvassing board has certified the results or after 72 hours from midnight of the date of the election, even though the county canvassing board may authorize additional manual recounts of votes after that time, and, in any event, county canvassing boards have the absolute discretion to authorize or deny manual recounts of votes, without guiding standards or criteria, even when requested by a candidate. In any event, the interests of a candidate and a citizen attempting to protect his right to vote may not be identical.

By allowing the manual recount to be conducted only in selected precincts and counties at the instance of only one candidate or the canvassing board, by using different standards for counting votes by automation and by manual counts, by employing vague, subjective, arbitrary and capricious standards to count votes when a voter has not completed the casting of his or her vote by punching out the chad on the ballot, and by precluding opposing candidates from protecting the integrity of the vote from this manipulation, Florida election law unconstitutionally establishes an election recount procedure that will debase the vote of plaintiff voters, and others similarly situated, who cast their ballots for Governor Bush. Fla. Stat. § 102.166, therefore, violates plaintiff voters’ right to equal protection of the laws. Notions of fundamental fairness, one person one vote, and equal protection command that this statute be declared unconstitutional on its face and as applied, and that the county defendants be enjoined from conducting the manual recount requested by Vice President Gore and/or authorized by the county canvassing boards pursuant to the statute, or, in the alternative, that defendants be enjoined from certifying the results of the election for President which contains the results of any manual recounts.

This is a civil action for declaratory and injunctive relief under Section 1 of the Civil Rights Act of 1871, 17 Stat. 13, 42 U.S.C. § 1983, and the Fourteenth Amendment to the United States Constitution.

The jurisdiction of this Court over the claims arising under 42 U.S.C. § 1983 is founded on 28 U.S.C. § 1343 (a). The jurisdiction of the Court over the claims arising under the Fourteenth Amendment is founded on 28 U.S.C. §§ 1331 and 1343(a).

Venue is proper because Plaintiff voters and Defendants McDermott, McFall and Northy reside within the Middle District of Florida. 28 U.S.C. § 1391(b).

Plaintiffs Robert C. Touchston, Deborah Shepperd, and Diana L. Touchston are residents of Brevard County, Florida, where a manual recount of the vote has not occurred in this election, and are registered voters in Florida (herein "Plaintiff voters"). In the general election on Tuesday, November 7, 2000, Plaintiffs Touchston, Shepperd, and Touchston cast their ballots for Governor George W. Bush for President of the United States.

Defendants Michael McDermott, Ann McFall, Pat Northy, Theresa LePore, Charles E. Burton, Carol Roberts, Jane Carroll, Suzanne Gunzburger, Robert Lee, David Leahy, Lawrence King, Jr. and Miriam Lehr are members of the Volusia, Palm Beach, Broward and Miami-Dade County Canvassing Boards, respectively (herein "county Defendants"). Defendants Katherine Harris is Secretary of State and she, Clay Roberts and Bob Crawford are members of the Elections Canvassing Commission (herein "state Defendants"). Defendants are sued in their official capacities.

IV. FACTS

Fla. Stat. § 102.141 provides that, on election night, a county canvassing board shall canvass the returns and certify said returns to the Department of State.

However, if, as is the case here, the returns reflect that a candidate was defeated by one-half of a percent or less of the votes cast for such office, the board responsible for certifying the results of that race shall order a recount of the votes cast for that office.

In the general election of November 7, 2000, the vote counts for the electors for Vice President Gore were defeated by less than one-half of a percent and, therefore, the Elections Canvassing Commission ordered a recount of that vote.

Upon the automatic tabulation of the votes in all 67 counties in Florida in this recount, the electors for Governor Bush received a plurality of the vote.

Fla. Stat. § 102.166(4)(a), however, also provides that prior to the time the canvassing board certifies the results or within 72 hours after midnight of the date the election was held, whichever occurs later, a candidate may request a manual recount of votes in certain precincts in the county, which results in a third recount of the affected precincts. Exhibit A.

The statutory purpose of the manual recount is to determine if there was "an error in the vote tabulation," Fla. Stat. § 102.166(5), based upon which a ballot may be cast for a candidate which had not been tabulated during the automated tabulation, even though the voter did not complete his or her casting of the ballot by punching out the chad on the ballot for the candidate of the voter’s choice.

Vice President Gore requested a manual recount in certain precincts in Volusia, Palm Beach, Broward, and Miami-Dade Counties, pursuant to Fla. Stat. § 102.166(4). Governor Bush has not requested a manual recount of any precincts.

A request for a manual recount is justified where the number of ballots cast does not equal the number of ballots recorded by the vote tabulation system, that is, where the number of ballots cast and the number recorded by the tabulation system cannot be reconciled. See Fla. Stat. § 102.166(5). Upon information and belief, there have been no allegations of an inability in Volusia, Palm Beach, Broward and Miami-Dade Counties to reconcile the number of ballots cast with the number of ballots recorded by the vote tabulation system.

Upon information and belief, Vice President Gore requested manual recounts because of higher than expected vote totals by a minor party candidate. Therefore, the reasons provided by Vice President Gore in support of his requests for manual recounts do not justify his requests for manual recounts. See Fla. Stat. § 102.166(5).

As a result of the request by Vice President Gore, manual recounts were ordered in certain precincts in Volusia, Palm Beach, and Broward Counties and, upon information and belief, in Miami-Dade. Exhibit B. Some or all of these manual recounts were authorized after the time period under Fla. Stat. § 102.166(4)(b) had expired for Governor Bush to request a manual recount of votes.

The registered voters in Volusia, Palm Beach, Broward, and Miami-Dade Counties are predominantly registered in the Democratic Party and the voters in these counties voted overwhelmingly for Vice President Gore on election day.

Furthermore, Volusia, Palm Beach, Broward, and Miami-Dade Counties are among the most heavily populated counties in the State of Florida.

Any manual recount in Volusia, Palm Beach, Broward, and Miami-Dade could be expected to produce a greater number of additional votes cast for Vice President Gore than for Governor Bush when ballots are cast for a candidate by the county canvassing board using vague, subjective, arbitrary and capricious tests described below, even though the voter did not complete the casting of his or her ballot by punching through the ballot card.

The result of these manual recounts has been a net increase in votes for Vice President Gore. Exhibit B.

Furthermore, voters in Brevard County are predominately registered in the Republican Party and voted overwhelmingly for Governor Bush in the 2000 general election. Any manual recount in Brevard County could be expected to produce a greater number of additional votes cast for Governor Bush than for Vice President Gore. In addition, a properly conducted manual recount, using proper standards, can ensure that validly cast ballots are counted which are occasionally mistakenly not counted by automated tabulation. In the absence of a manual recount in Brevard County and throughout the state of Florida, the validly cast ballots by Plaintiffs and others similarly situated may not be counted.

During the manual recount of votes in Palm Beach County, the county canvassing board counted ballots where the voter did not complete the casting of his or her vote by punching out the chad on the ballot for the candidate of the voter’s choice. These votes were not tabulated during the automated tabulation.

Neither Florida statutes nor Florida case law authorize a canvassing board to cast a ballot other than when the voter does completes the casting of his or her vote by punching out the chad on the ballot.

During the Palm Beach manual recount, the canvassing board authorized the casting of ballots not counted by automated tabulation. At the beginning of the manual count, they authorized the counting of ballots with only one of the four corners of the chad detached. Later, the board decided to use the "sunlight" test – if the sun came thought the indentation, it would be counted. However, during the final counting of the votes, the board rejected the "sunlight" test in favor of returning to the "one corner" test. Exhibit B.

Upon information and belief, the manual recounts in other counties conducting manual recounts have employed similar "tests" to cast ballots not counted in the automatic tabulations.

However, when a voter does not complete the casting of his ballot by punching out the chad on the ballot, for instance, by only dislodging one corner, there are two equally valid inferences of the intent of the voter: (1) the voter was so frail and/or clumsy that they were not able to punch through the ballot, even though the voter intended to do so, or (2) the voter had second thoughts or reconsidered his vote, after putting the stylus in the hole, or mistakenly put the stylus in the wrong hole and then withdrew the stylus before punching through the ballot, with the result that the voter never intended to vote for the candidate at all. It is arbitrary and capricious for the county Defendants to adopt the first inference over the second.

The tests employed by the county Defendants to cast ballots not counted by automated tabulation were vague, subjective, arbitrary and capricious.

Under Florida law, counties are required to forward certification of election results to the Department of State by 5:00 p.m. on Tuesday, November 14, 2000. Fla. Stat. § 102.111(1). Based on these compiled certified results, the Florida Elections Canvassing Commission is required to certify the returns of the election and determine and declare who has been elected. Fla. Stat. § 102.111(1). The Department of State shall then give to any person the election of whom is certified by the Elections Canvassing Commission a certificate of the person’s election, which constitutes prima facie evidence of the election of such person. Fla. Stat. § 102.155. If the total number of votes certified by the county defendants includes votes from the manual recounts, Plaintiffs will suffer irreparable harm because the electors for the loser of the election will be certified and will vote for President and Vice President on December 18, 2000. 3 U.S.C. § 7 (2000). There is no procedure available under Florida law to contest this result that will be resolved by December 18, 2000.

Plaintiff voters will be irreparably harmed if the manual recounts requested by Vice President Gore and authorized by the county Defendants are allowed to be conducted and included in any certification of the vote, and plaintiff voters have no adequate remedy at law.

Plaintiffs reallege the preceding paragraphs.

"The right to vote in a democracy is among the most precious of all individuals’ rights. . . . The moment an individual’s vote becomes subject to an error in the vote tabulation process, the easier it is for one’s vote to be diluted." In Re the General Election of November 5, 1991 For the Office of Township Committee of the Township of Maplewood, 605 A.2d 1164 (N.J. 1992).

Fla. Stat. 102.166(4) allows a partisan political candidate to selectively seek, and for a county canvassing board to selectively authorize, a manual recount only in heavily populated, predominantly Democratic counties, which will skew the election result toward the Democratic candidate through the addition of a proportionately higher number of votes which were not tabulated through the automated tabulation.

By failing to require a manual recount of all votes throughout the state if any votes are manually recounted, the statute allows a partisan political candidate to mine for a disproportionately high number of uncounted ballots that were cast for the candidate, while failing to require the manual recounting of uncounted ballots in counties that would offset the partisan advantage the candidate holds in the selected counties.

By allowing partisan selection of counties in which manual recounts are conducted, the statute dilutes the votes of all of the those voters who cast their ballots for the candidate’s opponent. See Baker v. Carr, 369 U.S. 186 (1962).

Conducting manual recounts only in Volusia, Palm Beach, Broward, and Miami-Dade Counties, therefore, will dilute plaintiffs’ votes, denying them equal protection of the laws under the Fourteenth Amendment to the United States Constitution. As a result, Fla. Stat. § 102.166(4) is unconstitutional on its face and as applied.

Plaintiffs reallege the foregoing paragraphs.

"Inherent in the recount procedure is the concept of fairness to all interested candidates in an election." Miller v. County Commission of Boone County, West Virginia, No. 28199, 2000 W. Va. LEXIS 107, at *18 (W. Va. Oct. 2, 2000).

Fla. Stat. § 102.166(4)(c) provides in pertinent part that a "county canvassing board may authorize a manual recount." The Florida Statutes provide no standards to guide the county canvassing board in its absolute discretion of whether to grant or deny a request for a manual recount from any candidate.

Vice President Gore has requested, and been granted, manual recounts in counties and precincts that are heavily composed of Democrat voters, with the intent and purpose of enhancing his vote.

Fla. Stat. § 102.166(4)(c), which grants county canvassing boards absolute discretionary authority as to whether to grant a manual recount, fails to provide procedural due process because it fails to establish standards for a county canvassing board that are sufficient to guard against the arbitrary and capricious decisions to conduct manual recounts, City of Chicago v. Morales, 527 U.S. 41, 52 (1999) (citing Kolender v. Lawson, 461 U.S. 352, 358 (1983)); see also Dickinson v. Florida, 227 So. 2d 36, 37 (Fla. 1969) ("[W]hen statutes delegate power [with] inadequate protection against unfairness or favoritism, and when such protection could easily have been provided, the reviewing court should invalidate the legislation."), with the effect that the Plaintiffs’ votes are diluted in violation of the Plaintiffs’ right to equal protection of the laws as guaranteed by the Fourteenth Amendment to the United States Constitution.

Plaintiffs reallege the foregoing paragraphs.

The only established objective standard under Florida law for determining the voter’s intent is for the voter to complete the casting of his or her vote by punching out the chad on the ballot for the candidate of the voter’s choice, which votes are almost always counted in the automated tabulation of the vote.

However, under a manual recount authorized by Fla. Stat. § 102,166(4), county canvassing boards have adopted vague, subjective, arbitrary and capricious standards, developed on an ad hoc basis and which are applied inconsistently, to count votes when the voter has not completed the casting of his or her vote by punching out the chad on the ballot. Thus, different standards are used when the ballots are counted in a manual recount than when the votes are counted by automatic tabulation.

Specifically, the county Defendants, in trying to determine a voter’s intent when the voter did not punch through the ballot during the manual recount, infer that the voter was intending to vote for the candidate. However, since an equally plausible inference is that the voter did not intend to vote for the candidate, by withdrawing the stylus before it punched through the ballot, the standards used by the county Defendants are arbitrary and capricious. See Murchie v. Clifford, 79 A. 901 (N.H. 1911).

When a manual recount is confined to the counties selected by Vice President Gore alone, in which he had the preponderance of the vote, and that utilizes vague, subjective, arbitrary and capricious standards to determine who the voter voted for, the result will be a net addition of votes for that candidate, as has occurred in this case. As a result, the Plaintiffs’ votes are diluted in violation of the Plaintiffs’ right to equal protection of the laws as guaranteed by the Fourteenth Amendment to the United States Constitution.

Procedural due process in election procedures "reflects a fundamental value in our American constitutional system," Boddie v. Connecticut, 401 U.S. 371, 374 (1971), and is intended to secure the individual from the arbitrary exercise of the powers of government. Daniels v. Williams, 474 U.S. 327, 331 (1986); see also Hurtado v. California, 110 U.S. 516, 527 (1884).

"[D]ue process requires that a state afford notice and opportunity for hearing appropriate to the nature of the case." Regents of State Colleges v. Roth, 408 U.S. 564, 576, 570 n.7 (1972).

Fla. Stat. § 102.166(4), however, does not provide notice and an opportunity to be heard to an opposing candidate when a manual recount has been proposed by a candidate or is being considered by a canvassing board.

Furthermore, a candidate is prohibited from requesting that additional precincts be manually counted, after the canvassing board has certified the results or after 72 hours from midnight of the date of the election, even though the county canvassing board has authorized additional manual recounts of votes after that time.

Thus, an opposing candidate is statutorily prevented from protecting the integrity of the vote from manipulation, with the result that the Plaintiffs’ votes can be and have been diluted, in violation of the equal protection guarantees of the Fourteenth Amendment to the United States Constitution.

Plaintiffs reallege the preceding paragraphs.

The Equal Protection Clause of the Fourteenth Amendment safeguards the rights of voters to have the valid votes counted along with the valid votes of other electors. United States v. Saylor, 322 U.S. 385, 388-89 (1944).

Section 102.166, however, allows a candidate in a statewide election to selectively cause the votes in some counties to be counted while ignoring valid votes in other counties, based on partisan political advantage. Therefore, Fla. Stat. § 102.166 is unconstitutional in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

WHEREFORE, Plaintiffs respectfully pray the Court to:

(1) Declare Fla. Stat. § 102.166(4) to be unconstitutional on its face in violation of the equal protection guarantees of the Fourteenth Amendment.

(2) Declare Fla. Stat. § 102.166(4) to be unconstitutional as applied to the 2000 general election for Electors for President of the United States.

(3) Temporarily, preliminarily, and permanently enjoin the county Defendants from conducting the manual recount in Volusia, Palm Beach, Broward, and Miami-Dade Counties.

(4) Temporarily, preliminarily, and permanently enjoin the county Defendants from certifying any vote tallies that include the results of any manual recount in Volusia, Palm Beach, Broward, and Miami-Dade Counties.

(5) Temporarily, preliminarily, and permanently enjoin the state Defendants from receiving the vote tally from Volusia, Palm Beach, Broward, and Miami-Dade which includes any results of any manual recount.

(6) Temporarily, preliminarily, and permanently enjoin the state Defendants from certifying the results in the election for electors for the office of the President of the United States of America based, in whole or in part, on the results of any manual recount.

(7) Enjoin the state defendants to certify the results of the election on November 17, 2000, based on the county-certified results which do not include any manual recounts. See Roe v Alabama, 68 F.3d 404 (11th Cir. 1995)(enjoining election officials to certify the election results without counting certain absentee ballots).

(8) Grant Plaintiffs such other relief as may be just and equitable, including attorney fees and costs.

I affirm under the penalties for perjury that the foregoing statements in the Verified Complaint are true.

DATED:_____________________              ___________________________
                                                                      Robert C. Touchston

Respectfully Submitted,

_________________________
Matt Staver
Fla. Bar No. 0701092
Liberty Counsel
210 East Palmetto Avenue
Longwood, FL 32750
Telephone: 407-875-0077
Telecopier: 407-875-0770
Local Counsel for Plaintiffs

James Madison Center For Free Speech

_________________________
James Bopp, Jr., Trial Counsel
Heidi K. Meyer
James R. Mason, Jr.
Eric C. Bohnet
Justin David Bristol
J. Aaron Kirkpatrick
Bopp, Coleson & Bostrom
1 South 6th Street
Terre Haute, IN 47807
Telephone: 812-232-2434
Facsimile 812-235-3685
Lead Counsel for Plaintiffs

VERIFIED COMPLAINT