CopyCited 24 times | Published | District Court, M.D. Florida | 2003 U.S. Dist. LEXIS 19826, 2003 WL 22025923
...by Article VI, Section 1; and (3) contemporary societal needs and structure; to support their assertion that the Court erred when it held that the "direct and secret vote" provision of Article VI, Section 1 is satisfied by the assistance provided in Section 101.051, Florida Statutes....
...arris' public comments. Thus, Harris' public comments are not entitled to great weight. Under the rubric "evils sought to be prevented," Plaintiffs rely upon evidence that they assert illustrates that the assistance provided to disabled voters under Section 101.051, Florida Statutes, fails to adequately protect one's vote from others' influence. Specifically, Plaintiffs rely upon the testimony of Assistant State Attorney Kracht, given before the Task Force, that, when he used the assistance provided under Section 101.051 to vote in the November 2000, election, the witness he was entitled to failed to remain in the voting booth while he voted....
...In addition, Kracht stated that upon requesting a witness, a poll worker shouted across a crowded room that Kracht did not trust him and wanted a witness. Kracht also recounted a colleague's experience, in which his colleague was initially prohibited from using his own sighted assistant as permitted by Section 101.051....
...nd his colleague's experiences were not uncommon. *1344 While Kracht's statements may indicate a deficiency in training and/or supervision, they are not sufficient to indicate that Article VI, Section 1 is not satisfied by the assistance provided by Section 101.051 or to warrant the Court's reconsideration of its previous Order....
...h was the framers' and/or the adopters' intent. In addition, the Court did not so interpret the provision, relying, in part, upon over thirty-years of tacit legislative interpretation of the provision as being satisfied by the assistance provided in Section 101.051....
...[8] While during a significant part of that thirty-year period technology that would allow disabled voters to vote without assistance was likely not available, it is not clear that such technology was not available in 1995 or 1999, the last two times that the Florida Legislature amended Section
101.051. Perhaps the most compelling evidence that the Florida Legislature has tacitly interpreted Article VI, Section 1 to permit the assistance provided by Section
101.051 is the fact that the Legislature passed Section
101.56062....
CopyCited 3 times | Published | District Court, M.D. Florida
...Also, these touchscreen systems were only to be located at voting headquarters. Plaintiffs filed suit alleging that Defendants violated the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132, and Section 504 of the Rehabilitation Act of 1973 (Rehabilitation Act), 29 U.S.C. § 794, and that Sections
101.051,101.28, and
101.5606, Florida Statutes, violate Article VI, Section 1 of the Florida Constitution....
...Plaintiffs allege that Defendants Stafford and the Council violated the ADA, the Rehabilitation Act, and Article VI, Section 1 of the Florida Constitution by deciding to purchase voting equipment that would not allow visually and *1280 manually impaired voters to vote unassisted. In addition, Plaintiffs allege that Sections
101.051,
101.5606, 101.28, Florida Statutes, violate Article VI, Section 1 of the Florida Constitution....
...In addition, Defendants Stafford and Council assert that Plaintiffs fail to state a claim under the Rehabilitation Act because they do not adequately allege that they receive federal financial assistance. Defendants Stafford and Council also assert that Sections
101.051,
101.5606, and 101.28 do not violate Article VI, Section 1 of the Florida Constitution....
...fford and the Council violated Article VI, Section 1 of the Florida Constitution by purchasing *1283 a voting system that does not permit visually and manually impaired persons to vote without assistance. In addition, Plaintiffs assert that Sections
101.051,
101.5606, and 101.28, Florida Statutes, violate Article VI, Section 1 because they do not specifically provide for "direct and secret" voting such that visually and manually impaired voters are able to vote without assistance....
...visually and manually impaired voters may vote without assistance so as to avoid anyone but the voter knowing how the vote was cast. However, a Florida Court could also interpret the language at issue as being satisfied by the assistance provided by Section 101.051, Florida Statutes....
...While the term "direct" could be read to support Plaintiffs' interpretation (absolute directness), it also could be construed as contemplating a more flexible interpretation which gives emphasis to the element "free from extraneous influence." If a Florida court were to choose the latter definition, the provisions of Section 101.051, which provides that the person(s) providing the assistance must read the ballot to the voter "without suggestion or interference" and that "after the [voter] requests the aid of the [person(s) providing assistance], they shall retire...
...Similarly, the term "secret" could be construed to support both Plaintiffs' and Defendants' positions. While the term may be read to mean absolute secrecy, it also may be construed less restrictively so as to contemplate information known only by a few or information not publicly known. The assistance provided by Section
101.051 would not appear to violate the latter meaning because only one or two people aside from the voter would know for whom the person voted, and Section
104.23, Florida Statutes, makes it a third degree felony for someone assisting a voter to disclose how the voter voted....
...Thus, it appears that both the current Florida Constitutional right to secrecy and its predecessor are premised, at least in part, upon a concern that one's vote not be influenced by others. This premise supports the interpretation that Article VI, Section 1 is satisfied by the assistance provided in Section
101.051 because Sections
101.051 and
104.23 (making it a third degree felony for someone assisting a voter to disclose how the voter voted) go to significant lengths to prevent someone providing assistance to voters from influencing their voting. Similarly, the Legislature has, at least tacitly, interpreted the "direct and secret" language as having been satisfied by the assistance provided by Section
101.051....
...lature's interpretation is persuasive if not controlling. See Greater Loretta Imp. Ass'n,
234 So.2d at 669. At the time the Legislature passed the joint resolution placing the "direct and secret" language on the ballot in 1968, a previous version of Section
101.051 provided assistance to illiterate and disabled voters. [10] Section *1287
101.051 was subsequently amended by the Legislature in 1977, see 1977 Fla....
...77-175 § 13; in 1979, see 1979 Fla. Laws ch. 79-366 § 2; in 1984, see 1984 Fla. Laws ch. 84-302 § 31; in 1985, see 1985 Fla. Laws ch. 85-226 § 12; in 1995, see 1995 Fla. Laws ch. 95-147 § 553; and in 1999, see 1999 Fla. Laws ch. 99-6 § 8. Under all versions of Section 101.051, assistance was provided to disabled and illiterate voters....
...Since legislators are sworn to uphold the constitution, see Williams v. Smith,
360 So.2d 417, 421 n. 9 (Fla.1978), and when possible statutes are to be construed as constitutional, see In re T.W.,
551 So.2d 1186, 1201 (Fla.1989), there is a presumption that, in allowing an earlier version of Section
101.051 to remain in effect when the "direct and secret" language was added to the Constitution and in amending Section
101.051 over the years, the Legislature interpreted the "direct and secret" language as being satisfied by the assistance provided to disabled and illiterate voters....
...the Legislature, and the presumption in favor of the validity of statutes, this Court holds that the Florida Supreme Court would interpret the "direct and secret" language of the Florida Constitution as being satisfied by the assistance provided in Section 101.051....
...ADA (Count One) and Rehabilitation Act (Count Three) As discussed above in Section C hereof, Article VI, Section 1 of the Florida Constitution provides for a program, activity, or service of direct and secret voting that is properly interpreted to permit the kind of assistance provided in Section 101.051, Florida Statutes....
...: a. Count One and Count Three are DISMISSED with prejudice to the extent Plaintiffs assert that they have been excluded from or denied the benefits of a program of direct and secret voting that does not permit the type of assistance provided for in Section 101.051....
...Count One and Count Three are DISMISSED with prejudice as to Defendant Stafford to the extent Plaintiffs *1298 assert that they have been excluded from or denied the benefits of a program of direct and secret voting that does not permit the type of assistance provided for in Section 101.051....
...[8] E.g., Burford abstention under Burford v. Sun Oil Co.,
319 U.S. 315,
63 S.Ct. 1098,
87 L.Ed. 1424 (1943), and Colorado River abstention under Colorado River Water Conservation District v. U.S.,
424 U.S. 800,
96 S.Ct. 1236,
47 L.Ed.2d 483 (1976). [9] Section
101.051 provides: (1) Any elector applying to vote in any election who requires assistance to vote by reason of blindness, disability, or inability to read or write may request the assistance of two election officials or some other person of...
...re me this ____ day of ____, (year). (Signature of Official Administering Oath) (5) The supervisor of elections shall deliver a sufficient number of these forms to each precinct, along with other election paraphernalia. [10] This previous version of Section 101.051 provided: (1) Any elector applying to vote in any election who is unable to read or write or who, because of some physical disability, needs assistance in voting may request assistance of two election officials or some other person of...
...Sworn and subscribed to before me this ..... day of ....., 19..... ..... (Signature of Official Administering Oath) ..... (5) The supervisor of elections shall deliver a sufficient number of these forms to each precinct, along with other election paraphernalia. Fla. Stat. § 101.051 (1967)....
...ually impaired voters to vote without assistance, Section
101.56062 does not alter the presumption (previously referred to herein) that the Legislature has interpreted the "direct and secret" language as being satisfied by the assistance provided by Section
101.051....
...t the construction rightly interprets the intention. Id. For over thirty years, the Florida Legislature has at least tacitly interpreted the "direct and secret" requirement of the Florida Constitution as being satisfied by the assistance provided in Section 101.051. As noted above, at the time the language at issue was added to the Constitution, a previous version of Section 101.051 provided assistance to disabled voters....
CopyCited 1 times | Published | District Court, M.D. Florida | 2002 U.S. Dist. LEXIS 21373, 2002 WL 31375631
...Also, these touchscreen systems were only to be located at voting headquarters. Plaintiffs filed suit alleging that Defendants violated the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132 , and Section 504 of the Rehabilitation Act of 1973 (Rehabilitation Act), 29 U.S.C. § 794 , and that Sections
101.051,101.28, and
101.5606, Florida Statutes, violate Article VI, Section 1 of the Florida Constitution....
...Plaintiffs allege that Defendants Stafford and the Council violated the ADA, the Rehabilitation Act, and Article VI, Section 1 of the Florida Constitution by deciding to purchase voting equipment that would not allow visually and *1280 manually impaired voters to vote unassisted. In addition, Plaintiffs allege that Sections
101.051,
101.5606, 101.28, Florida Statutes, violate Article VI, Section 1 of the Florida Constitution....
...In addition, Defendants Stafford and Council assert that Plaintiffs fail to state a claim under the Rehabilitation Act because they do not adequately allege that they receive federal financial assistance. Defendants Stafford and Council also assert that Sections
101.051,
101.5606, and 101.28 do not violate Article VI, Section 1 of the Florida Constitution....
...ford and the Council violated Article VI, Section 1 of the Florida Constitution by pur *1283 chasing a voting system that does not permit visually and manually impaired persons to vote without assistance. In addition, Plaintiffs assert that Sections
101.051,
101.5606, and 101.28, Florida Statutes, violate Article VI, Section 1 because they do not specifically provide for “direct and secret” voting such that visually and manually impaired voters are able to vote without assistance....
...visually and manually impaired voters may vote without assistance so as to avoid anyone but the voter knowing how the vote was cast. However, a Florida Court could also interpret the language at issue as being satisfied by the assistance provided by Section 101.051, Florida Statutes....
...on (absolute directness), it also could be construed as contemplating a more flexible interpretation which gives emphasis to the element “free from extraneous influence.” If a Florida court were to choose the latter definition, the provisions of Section 101.051, which provides that the person(s) providing the assistance must read the ballot to the voter “without suggestion or interference” and that “after the [voter] requests the aid of the [person(s) providing assistance], they shall...
...Similarly, the term “secret” could be construed to support both Plaintiffs’ and Defendants’ positions. While the term may be read to mean absolute secrecy, it also may be construed less restrictively so as to contemplate information known only by a few or information not publicly known. The assistance provided by Section
101.051 would not appear to violate the latter meaning because only one or two people aside from the voter would know for whom the person voted, and Section
104.23, Florida Statutes, makes it a third degree felony for someone assisting a voter to disclose how the voter voted....
...Thus, it appears that both the current Florida Constitutional right to secrecy and its predecessor are premised, at least in part, upon a concern that one’s vote not be influenced by others. This premise supports the interpretation that Article VI, Section 1 is satisfied by the assistance provided in Section
101.051 because Sections
101.051 and
104.23 (making it a third degree felony for someone assisting a voter to disclose how the voter voted) go to significant lengths to prevent someone providing assistance to voters from influencing their voting. Similarly, the Legislature has, at least tacitly, interpreted the “direct and secret” language as having been satisfied by the assistance provided by Section
101.051....
...s interpretation is persuasive if not controlling. See Greater Loretta Imp. Ass’n,
234 So.2d at 669 . At the time the Legislature passed the joint resolution placing the “direct and secret” language on the ballot in 1968, a previous version of Section
101.051 provided assistance to illiterate and disabled voters. 10 Section *1287
101.051 was subsequently amended by the Legislature in 1977, see 1977 Fla....
...77-175 § 13; in 1979, see 1979 Fla. Laws ch. 79-366 § 2; in 1984, see 1984 Fla. Laws ch. 84-302 § 31; in 1985, see 1985 Fla. Laws ch. 85-226 § 12; in 1995, see 1995 Fla. Laws ch. 95-147 § 553; and in 1999, see 1999 Fla. Laws ch. 99-6 § 8. Under all versions of Section 101.051, assistance was provided to disabled and illiterate voters....
...Since legislators are sworn to uphold the constitution, see Williams v. Smith,
360 So.2d 417 , 421 n. 9 (Fla.1978), and when possible statutes are to be construed as constitutional, see In re T.W.,
551 So.2d 1186, 1201 (Fla.1989), there is 'a presumption that, in allowing an earlier version of Section
101.051 to remain in effect when the “direct and secret” language was added to the Constitution and in amending Section
101.051 over the years, the Legislature interpreted the “direct and secret” language as being satisfied by the assistance provided to disabled and illiterate voters....
...Legislature, and the presumption in favor of the validity of statutes, this Court holds that the Florida Supreme Court would interpret the “direct and secret” language of the Florida Constitution as being satisfied by the assistance provided in Section 101.051....
...ADA (Count One) and Rehabilitation Act (Count Three) As discussed above in Section C hereof, Article VI, Section 1 of the Florida Constitution provides for a program, activity, or service of direct and secret voting that is properly interpreted to permit the kind of assistance provided in Section 101.051, Florida Statutes....
...: a. Count One and Count Three are DISMISSED with prejudice to the extent Plaintiffs assert that they have been excluded from or denied the benefits of a program of direct and secret voting that does not permit the type of assistance provided for in Section 101.051....
...Count One and Count Three are DISMISSED with prejudice as to Defendant Stafford to the extent Plaintiffs *1298 assert that they have been excluded from or denied the benefits of a program of direct and secret voting that does not permit the type of assistance provided for in Section 101.051....
...E.g., Burford abstention under Burford v. Sun Oil Co.,
319 U.S. 315 ,
63 S.Ct. 1098 ,
87 L.Ed. 1424 (1943), and Colorado River abstention under Colorado River Water Conservation District v. U.S.,
424 U.S. 800 ,
96 S.Ct. 1236 ,
47 L.Ed.2d 483 (1976). . Section
101.051 provides: (1) Any elector applying to vote in any election who requires assistance to vote by reason of blindness, disability, or inability to read or write may request the assistance of two election officials or some other person of...
...ibed to before me this _day of_, (year). (Signature of Official Administering Oath) (5)The supervisor of elections shall deliver a sufficient number of these forms to each precinct, along with other election paraphernalia. . This previous version of Section 101.051 provided: (1) Any elector applying to vote in any election who is unable to read or write or *1287 who, because of some physical disability, needs assistance in voting may request assistance of two election officials or some other per...
...Sworn and subscribed to before me this .day of.,19. . (Signature of Official Administering Oath). (5) The supervisor of elections shall deliver a sufficient number of these forms to each precinct, along with other election paraphernalia. Fla. Stat. § 101.051 (1967)....
...ually impaired voters to vote without assistance, Section
101.56062 does not alter the presumption (previously referred to herein) that the Legislature has interpreted the "direct and secret" language as being satisfied by the assistance provided by Section
101.051....
...t the construction rightly interprets the intention. Id. For over thirty years, the Florida Legislature has at least tacitly interpreted the "direct and secret" requirement of the Florida Constitution as being satisfied by the assistance provided in Section 101.051. As noted above, at the time the language at issue was added to the Constitution, a previous version of Section 101.051 provided assistance to disabled voters....
CopyPublished | Florida 1st District Court of Appeal | 1982 Fla. App. LEXIS 21051
...Frances Smith supported the defendant and there was no evidence to the contrary. Those voters listed in 14. above were all illiterate to the extent that they would not have known had their ballots been marked contrary to their instructions. The controlling statutory language is that appearing in § 101.051, Florida Statutes, as follows: 101.051 Electors seeking assistance in casting ballots; form to be executed; forms to be furnished .......
...uest assistance from _ (Print name) _ in voting at the (name of election) held on (date of election) for the following reason -[e.s.] Contrary to the apparent assumption of the trial court 1 and the parties to this cause, we conclude from a study of § 101.051, in the context of its history and the remainder of the election code, that subsection (3) is directéd to all electors who seek assistance in voting absentee....
...nd in the general doctrine that specific statutory authority must exist for voter assistance because, absent such authority, the acts involved in voting are of such personal character that they *1127 may not be delegated. 6 A substantial revision of §
101.051 in 1977 7 removed its former references to special registration cards under §
97.061, Florida Statutes, and removed from the subsections on both absentee and poll assistance the language on “examination required by this section,” leav...
...nor make provision for assistance to absentee voters not casting their ballots in the office of the supervisor, but if they did the legislature would surely have provided for the regulation of that assistance in a manner similar to that set forth in Section 101.051; i.e., the execution of a Declaration to Secure Assistance and a limitation on the number of voters assisted by any one person.” ....
...“The word ‘cast’ means ‘deposit (a ballot) formally or officially .... ” Port of Palm Beach District v. State,
156 Fla. 99 ,
22 So.2d 581, 582 (1945). . Other sections are specific as to requirements “[i]f an elector appears in person to cast an absentee ballot ...which could easily have been done in §
101.051(3) if that distinction had been intended....
