Term Limits -- County Commissioners
In February 2010 a citizen of Broward County filed suit against the Supervisor of Elections, seeking declaratory relief that the term limits for county commissioners in the Broward County charter were unconstitutional. Mr. Telli argues that the term limit is an unlawful disqualification from election to office for a class of constitutional officers, in violation of Article VI, section 4 of the Florida Constitution. This argument is based on the Florida Supreme Court's decision in Cook v. City of Jacksonville, 823 So. 2d 86 (Fla. 2022), in which the Court concluded that Jacksonville and Pinellas County's term limit provisions were unconstitutional prohibitions on election to office, finding that Article VI, section 4, Florida Constitution, preempted the field for imposing disqualifications for classes of constitutional officers. The complaint can be viewed here.
Elections Code - Preemption
Browning v. Sarasota Alliance for Fair Elections (“SAFE") – Elections Code
Case No. SC07-2074, Supreme Court of Florida
On February 11, 2010, the Supreme Court issued its long awaited opinion in Sarasota Alliance for Fair Elections, Inc. v. Browning, Case No. SC07-2074 (Fla. Feb 11, 2010), addressing the following certified question 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?
The Court concluded that the Florida Election Code does not preempt the field of elections law and answered the certified question, “no.” The Court further concluded that while it was quashing that portion of the Second DCA’s decision that found preemption, the Court would approve the Second DCA’s conclusion that portions of the proposed amendment conflict with the Florida Election Code.
Facts of the Case
The Sarasota Alliance for Fair Elections (SAFE), a political action committee, sponsored an amendment to the Sarasota County charter. The amendment set forth detailed election requirements to be implemented in Sarasota County effective January 1, 2008, including requirements that no voting system could be used in Sarasota County that did not provide a voter verified paper ballot; requirements for audits -- in addition to Voting System Audits allowed in sec. 101.591, Florida Statutes, the Sarasota County Supervisor of Elections would be required to conduct mandatory, independent, random audits of the voting system in Sarasota County (as detailed in the proposal); and requirements for the certification of election results -- no election could be certified until the mandatory audits were complete and until any cause for concern about the accuracy of results had been resolved (in accordance with the proposal’s detailed language).
Before the election in 2006, upon filings by both the county and SAFE, 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 submitted to the electorate. The county did not seek a stay of the 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 county 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
On the issue of preemption, the Court found no express preemption of local elections regulations in the Florida Elections Code. Because a local government can be preempted, impliedly, the Court examined that issue but concluded that “[w]hile we agree that Florida’s Election Code is a detailed and extensive statutory scheme, we conclude that the Legislature’s grant of power to local authorities in regard to many aspects of the election process does not evince an intent to preempt the field of election laws.”
Finding no express or implied preemption, the Court then conducted a conflict analysis, to see if any general or special law conflicted with the proposed charter amendments. The Court examined each part of the proposed charter amendments to determine if conflict existed.
Paper Trail
Section 6.2A of the amendment provides that no voting system can be used in Sarasota County elections that does not provide a voter verified paper ballot. It also provides that the voter verified paper ballots shall be the official record of the votes cast and while votes may be tallied electronically the electronic record is not deemed a ballot. When the SAFE amendment was promulgated, touch-screen voting machines without a paper record were one of the voting systems that had been approved by the Department of State and were thus one of the systems that counties were authorized to choose. The SAFE amendment was intended to prohibit the use of touch-screen machines in Sarasota elections. The Court concluded that the Election Code provided, at the time, minimum requirements for voting machines and that the Sarasota County Commission could follow the additional standards of the proposed charter amendment without being in conflict with the minimum statutory requirements established by the Legislature. However, even if there were a conflict, the issue would be moot. The Legislature has subsequently amended the Election Code effective July 1, 2008, to provide that all voting in Florida (with the exception of persons with disabilities) must be “by marksense ballot utilizing a marking device for the purpose of designating ballot selections.” Thus, touch-screen voting machines will no longer be permitted in Florida. The Legislature has spoken on the exact issue on which the SAFE amendment sought to legislate and thereby rendered any potential conflict moot.
Additional Audits
Section 6.2B of the amendment requires “mandatory, independent, and random audits” of the Sarasota voting system. These audits must be “publicly observable hand counts of the voter verified paper ballots in comparison to the machine counts.” Under the 2006 Election Code, the Legislature had the authority to determine whether to order an independent audit of a county’s voting system. The statute did not establish any procedures for such audits nor preclude a county from conducting its own audit of its voting system. Thus, at the time when the trial court and the district court considered the constitutionality of the amendment, there was no direct conflict with any audit provisions in the state Election Code. However, the Court noted that state law was amended, in 2008, to require county canvassing boards to conduct a manual audit of the voting systems used in randomly selected precincts. T Section 101.591, Florida Statutes, requires the audit to take place immediately following the certification of each election, sets forth the procedures to be used in the audit, establishes a timeline for completion of the audit, and specifies the information to be included in the report that must be submitted to the Department of State. Further, the Legislature gave the Department of State authority to adopt rules relating to this audit procedure. These statutes took effect on July 1, 2008 and to the extent that section 6.2B of the SAFE amendment conflicts with these provisions, the state statutes would prevail.
Certification of Results
The Court concluded that the procedure set forth in section 6.2C conflicts with the statutory provisions in the Election Code in several ways. For the specific conflicts, take a look at the opinion – this one covers several pages of analysis.
Severability
The proposed charter amendment contained a severability clause. According to the Supreme Court, “the determinative question is whether the other two sections of the SAFE amendment are necessarily dependent for their operation upon section 6.2C. We conclude that they are not. Section 6.2A merely specifies that the voting system used in Sarasota County must provide a verified paper ballot and allow a voter to correct his or her ballot by rejecting overvoted ballots at the time of voting. Section 6.2B provides for mandatory audits of the voting system. These provisions are completely operational without the certification requirements in section 6.2C. Thus, we conclude that section 6.2C can and should be severed from the rest of the amendment. “
While Justice Canady recused himself, there are separate opinions worth reading by both Justices Lewis and Polston, on the issue of conflict. Each of them concurred in part and dissented in part from the majority, written by Chief Justice Quince.
You can link to the opinion here.