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....
...bilitation 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....
...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....
...Similarly, Defendants Stafford and the Council did not violate Article VI, Section 1, Florida Constitution, by purchasing voting equipment that does not permit visually and manually impaired voters to vote without assistance. In addition, Sections 101.5606 [12] and 101.28, [13] Florida Statutes, do not violate *1289 Article VI, Section 1, Florida Constitution....
...Thus, Defendants Smith and Kast are not instrumentalities of local government. Since Plaintiffs made no other allegations regarding the receipt of federal financial assistance, Count Three is due to be dismissed with leave to amend as to Defendants Smith and Kast. 1. Recent Amendment of Florida Election Code, Creating Section 101.56062 Notwithstanding the above discussion, the Court notes that, although not brought to the Court's attention by the parties, the 2002 Florida Legislature has recently enacted new legislation concerning voting and voting systems. See 2002 Fla. Sess. Laws Serv. ch. 2002-281 (West). It is not clear whether this new legislation, Florida Laws 2002-281, which, inter alia, created Section 101.56062, [23] would satisfy or ameliorate the Plaintiffs' concerns which *1295 prompted the assertion of their ADA and Rehabilitation Act claims....
...(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). [11] See Section D.1., infra, (particularly at footnotes 23 and 24), for discussion of recent legislation enacted by the 2002 Florida Legislature. [12] Section
101.5606 provides: No electronic or electromechanical voting system shall be approved by the Department of State unless it is so constructed that: (1) It permits and requires voting in secrecy....
...ederal financial assistance. As discussed above, in light of the definition of a "program or activity" set forth in Section 794(b), Plaintiff has adequately alleged that Defendants Stafford and the Council received federal financial assistance. [23] Section 101.56062 provides: (1) Notwithstanding anything in this chapter to the contrary, each voting system certified by the Department of State for use in local, state, and federal elections must include the capability to install accessible voter i...
...2002-281 (West) ( notations reflecting added and removed language omitted). [24] The Court notes that the new Florida legislation would not affect the Court's ruling as to Count Two (the Florida constitutional claim). Assuming that the standards for the interface devices set forth in Section
101.56062 will allow visually and manually 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....
...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. In addition, legislative enactments more contemporaneous with the adoption of the "direct and secret" language than Section
101.56062 provided assistance to disabled voters without also providing a method for disabled voters to vote without assistance. Consequently, the interpretation of Article VI, Section 1 indicated by these previous, more contemporaneous legislative enactments are presumed to be correct, and Section
101.56062 cannot reasonably be interpreted as changing the meaning of Article VI, Section 1....
...was enacted as Florida Laws 2002-281, to Article VI, Section 1 or to the requirement that elections be by "direct and secret" vote. See Senate Staff Analysis and Economic Impact Statement, S.B. 1350, 2002 Leg., Reg. Sess. (Fla.2002). It appears that Section 101.56062 simply provides broader rights than those required by Article VI, Section 1....
...228, 231 (1926) (holding that legislative authority is only limited by the state and federal constitutions). This interpretation is supported by the fact that the Legislature has not required that all voting systems used meet the standards provided in Section 101.56062....
...have taken action to more fully provide for this right. If, however, the Legislature is merely providing a broader right by statute than is required by the Constitution, then only requiring newly certified voting systems to meet the requirements of Section 101.56062 would not be an inappropriate way to provide for this right.
