 Prime Minister's question time at 9 Eastern and Pacific. This week, the Florida Supreme Court heard arguments in a case dealing with provisional ballots. They were created after the 2000 election to guarantee that voters whose names aren't on voting rolls could still cast their votes on election day. In this case, the AFL-CIO contends that provisional ballots should be counted regardless of which precinct the vote is cast in. It's 45 minutes. Please rise. The Supreme Court of the Great State of Florida is now in session. All who have cause to plea, draw near, give attention, and you shall be heard. God save these United States, the Great State of Florida, and this honorable court. Good morning, ladies and gentlemen, and welcome to the Florida Supreme Court. The first and only case on this morning's docket is the case of AFL versus Glenda Hood, or the party's ready. All right, and Mr. Weiss-Glass, you may proceed. Thank you, Chief Justice Periente, and may it please the court. My name is Jonathan Weiss-Glass, and I represent appellants in this matter. By far the most important consideration in any election is that every vote be counted. We're going to let you give your argument, but understand that there's limited time, and so you should stick to just the legal, discrete legal issues that are before us. Thank you. And if you could specifically state the state or federal constitutional provisions that you are asserting may be violated by this statute. Yes, Justice Hanstead, there are two provisions of the Florida Constitution. We do not bring any federal claims whatsoever. Article 6, Section 2 of the Florida Constitution makes voters electors of the county. And Article 6, Section 2, together with Article 1, Section 1, provides that there's a fundamental right to vote. Those are the two constitutional claims in this case. Now, after the 2000 election, the state legislature enacted a provisional ballot statute. And the reason they did so was because it was undisputed that countless people had appeared at the polls, and their names weren't on the list. I take it prior to the enactment of this statute. There was no provision in the election laws of Florida for a provisional ballot. That is correct. And there wasn't any constitutional problem with that. Well, what actually the Constitution requires that there be... Well, was there a constitutional problem? Yes, the Constitution requires... Has this court ever been... Had it ever been raised with this court that there was a constitutional problem with not having a provisional ballot? It had not been raised. This is the first case that I know of that raises the issue of the problem when someone appears at a precinct to which they were not assigned and is not allowed to vote even though they are under the Constitution, an elector of the county, and under the Constitution, they have a fundamental right to vote. It's very important to understand that Article 6, Section 2, sets forth the exclusive qualifications for voting. So, is your position that this is a qualification, not a reasonable time, place, manner, restriction? Is that correct? Our position is that actually yes, but it's irrelevant. Okay, if it's a qualification then, would it not only apply to provisional ballots, but to every ballot? That is correct. That's why it's unconstitutional to not allow voters to vote based on the precinct at which they show up, because voters are electors of the county. Okay, but let me go back to where I started from. Is it your position that there is a constitutional right to have a provisional ballot? Yes. Our position... So we've been, up until the year 2000, all of the elections were unconstitutional because there was no provision in the election law for a provisional ballot. Is that your position? Yes, there must be a provisional ballot or some similar mechanism to ensure that voters have their votes counted as electors of the county. Would you agree, though, that the very reason that the state enacted this statute after the Federal Help America Vote Act was to solve a very discreet problem that appeared in the 2000 election? Yes, and what was that problem? The problem was that voters... It was undisputed, as I said, that voters showed up at precincts, their names were not on the list. People... The poll workers, in some instances, when they tried to call into the central canvassing board, couldn't get through. It was unclear where voters were supposed to vote, and countless people were disenfranchised. Mistakenly, right? Mistakenly. That is that they were actually registered at the particular precinct, but through the confusion or negligence or whatever that those registered at those precincts were mistakenly not allowed to have their ballots cast. Is that correct? Exactly. That was sort of the background for... At least on its face, this statute really has expanded voting rights. Has it not? Because it's provided for something. Now, could you go directly to address the regulatory nature of the response that is given? And so... And let's do it in the context, for instance, of Miami-Dade County, which I'm not sure what the population is today, but let's say it's 2 million people and maybe 750,000 voters. I don't know. Okay, but... And perhaps you do. But wouldn't it create a potential chaos and actually negatively impact the right of all to vote if there was simply an unregulated free right to show up at any polling place and vote? And that is that... And of course, the worst-case scenario is if all 750,000 showed up at one precinct and obviously they would not, under the other regulations we have, which allow voting from 7 a.m. to 7 p.m. or whatever. So would you address that head-on? That is that certainly there is even an express constitutional provision in Florida's Constitution that mandates regulation. So would you address that head-on under the scenario that I gave you? Yes, there is... It absolutely is not going to create chaos. Virtually no one is going to purposefully vote a provisional ballot when they are given the correct information, sometimes it doesn't happen, when they haven't been dislocated by a hurricane as has happened, when they know where they're supposed to vote and everything runs as the election officials are supposed to make it run, people aren't going to willy-nilly run out and cast provisional ballot for the sake of doing so. You say they won't do it willy-nilly, but in fact why should a person who doesn't know either through the neglect of the elections officials or for whatever reason maybe they moved and the notice didn't catch up with them, why should they have an opportunity that someone else does not have who's casting a vote? We all know that on election day you have to go to your precinct and you're not arguing that that's anything wrong with that, are you? There's nothing wrong with someone showing up at their precinct, that's how most people are going to do it because that's what they're used to because if you don't show up at the place you run a risk of not having your vote counted. But you are arguing that there is something wrong with that, that the legislature cannot limit voting to particular precincts. There's nothing wrong with setting it up as a matter of convenience for all concern. There has to be a safety valve in case there are problems that are not the fault of the voter but are the fault of election officials, everyone's human? Well, in this day of computers is it possible to go to a precinct and they tell you you're not on the roll and for the precinct workers to then through computer or whatever determine what precinct you're supposed to go to? It is possible, but what the record shows is that some poll workers will not do that and that even if they do, they won't be able in some cases to get through to the people who can tell them based on the computer rolls. This is a facial challenge to the statute, correct? We're not in an as applied mode. That is correct. All right, because you mentioned the record and really we're here because the judge dismissed the complaint after finding as a matter of law there was no constitutional issue. Is that right? That is correct. We also submitted evidence in support of a temporary injunction and when I refer to the record, that's what I'm talking about. Well, but there was no transcript that we have to look at. There is affidavits in the record that we submitted to the court. But there's no, we have no record, written transcript. There is no hearing transcript but there is a compilation of the evidence we submitted in support. My question that follows what we're talking about here, which is let's just assume that there is a problem with the statute vis-a-vis the Florida Constitution. You mentioned that there is no federal constitutional problem with what the state of Florida has done, which is essentially since its beginning has based the rights of vote on a precinct-based concept as opposed to just showing up anywhere. We do not bring a federal claim. All right, but with that, and it's looming there, it's mentioned in a footnote in your brief, is that if the legislature passes this, and this you say is a qualifications for electors rather than a reasonable time, place, restriction, if we were to declare this statute unconstitutional under the Florida Constitution, wouldn't we come right up against a Bush v. Gore situation that is that the legislature has been given plenary power to determine the type of election that we will have in the state for president? No, first of all, Bush v. Gore, the Article II section, the Article II issue that was raised was a three-judge plurality opinion. It is not binding on this court, and this court needs to decide for itself the scope of Article II. What this court recently said in the Nader case was that Article II has to deal with courts that when they construe statutes, this is not a statutory construction case. The statute is ambiguous. This is a case about constitutional limitations on what the legislature does. However, in Gore v. Harris, the United States Supreme Court made it clear in sending back to this court the fact that the legislature had plenary power in setting up the method by which electors are voted upon for the United States presidency. Isn't that correct? What that case said is that they sent it back to this court, but they did not say what would happen in the event that this court held a statute that the legislature passed unconstitutional. That's the situation here, and what McPherson says, McPherson v. Blacker, which is an old case, expressly says that the legislative power is limited by the state constitution. That's the situation here. It would be a ridiculous situation if the legislature was not so bound. For instance, they wouldn't be bound by the single-subject constitutional provision of this state when they passed generally applicable election laws. How do you distinguish this regulation from, say, a time regulation that does exist, and that is that in realizing, obviously, that it's factually different in terms of qualifications, but nevertheless, in terms of acknowledging that the legislature has authority, plenary authority, for regulation of some kind, how is it any different, really, in saying we're going to provide this limited 12-hour period, which obviously is an impairment of this very, very fundamental right to vote and right to have your vote counted. How is it really any different from saying, uh-uh, if you show up after 7 o'clock in the evening, even though you got all, and you're at the right precinct, we are not going to count and allow you to vote and count your vote. How is it really any different? This is very important. There are two reasons, one for each of the constitutional claims we bring. The first, with respect to the qualifications clause, it's very important. The residency requirement is set forth in the Constitution, and that means that the legislature can't modify it. It would be the same thing if the Constitution said that polls must close at 7, and the legislature passed the statute that said polls will close at 6, it would be exactly the same situation we have here, even though that is a time, place, or man, or restriction, seemingly, the legislature can't do it because it's in the Constitution. With respect to the second claim dealing with the fundamental right to vote, this is very different than a poll closing statute, because what this is going to do is it is going to actually disenfranchise voters who are given incorrect information or who, through circumstances beyond their control, such as a hurricane, go to the polls and the polling place has moved. Let me ask you. How do we distinguish, then, those people who go to the incorrect poll through no thought of their own that the elections people did not send them the proper information versus those who, for reasons personal to themselves, go to the wrong polls? For purposes of this challenge, I don't think the court should get into making that distinction. That is a classic distinction that the legislature perhaps could make after this case is decided. So what are you asking us to do, then? What is the remedy? Even if we thought there was some problem with the statute, what is the remedy? No provisional voting? The remedy is to keep most of the provisional ballot statute, which is perfectly fine in place, but to make sure that the problem is the provisional ballot statute to make sure that voters who show up are given a provisional ballot if their name is not on the list and then the county... Which ballot? They are given the ballot at the precinct they show up and the county canvassing board then decides if that voter is eligible to vote then that voter should have his or her vote counted. But Mr. Cowles makes the point which seems to me to be an abundance of common sense that in where we are voting now, if I go to the courthouse to early vote it takes about five minutes to get my correct ballot because I've got the town that I live in, they've got people on the ballot. I've got a single district member of the House of Representatives on my ballot, which is not true if I go to a precinct across Orange County over at Union Park. The way it works is as it happens in Georgia which runs a perfectly constitutional system the way it works is you don't count the votes for any race for which the voter was not eligible. I'd like to reserve the balance of my time. Thank you. All right. Mr. Kies, now I understand that you're the 20 minutes you've graciously... You're taking 10. Mr. Lebarski is... Lebarski. Lebarski is taking five and then Mr. Byrne is taking five. So I just ask you all, you'll see the red light go on to be mindful of your time. Yes, Your Honor, graciously. May I please the Court? Christopher Kies, Solicitor General on behalf of Secretary Hood. The right to vote is not the right to vote at any time, any place, in any manner that you wish. It is the right to participate in a process necessarily structured to protect the integrity of the system. And that's not what I say. That's what the United States Supreme Court says and that's what this Court has recognized. And voters have to take certain actions to exercise their franchise. But let me ask you... Go ahead. My problem with this is we've had numerous hurricanes in this state. We have 1,000, I believe, more precincts than we used to have. A lot of people have left their homes because of these hurricanes and may or may not get their mail forwarded. And so those are the kinds of problems that I see might come up during this election. So how do we address those? And does this provisional ballot do anything to help those people? Your Honor, I think the provisional ballot does something to help those people. And I think you have to look at... And it's really the problem with their cases a whole. They want to take the 048 section and just look at that in isolation. You have to look at the statute 101 as a whole. In 001, there are provisions for providing notice and providing maps to people. And specific instructions that the legislature has given to the supervisors and to the secretary about how we notify people. In 0071, there is a notice of address change of polling place. In 00733 and 0074, there are emergency provisions. I understand that. But in this short period of time, would a voter who goes to the wrong precinct be able to get information at that precinct that says you should be a block away at the other church or the other school? That's certainly the intent of the statute. That's the intent of the legislature. And that is the way the system is supposed to work. Can we guarantee it works in every single isolated circumstance? I don't know that any system can do that. Because in fact, the system that they raise that they point to, California and Georgia, what they ignore is that California and Georgia actually disenfranchise people on the down ballot races. Because if you look at what California and Georgia do, they give you a provisional ballot when you show up. They don't really make much of an attempt. It appears to give someone instruction as to where to go. They say, well, you're not on the list here, so let's give you a provisional ballot. And then those folks vote, and the canvassing board in those states goes back through that ballot and determines, well, if the individual was eligible in that precinct, then we count all the votes. But if they're not eligible in that precinct, then we count only the votes to which they were entitled to, sort of the top of the ballot votes. And then those people are disenfranchised under their scenario. But the two problems, and again, I think we go from one extreme, which is to say that this whole election statute is based on the concept of voting in a precinct. Yet we know we're in a computer age where we would think that every precinct would have a computer and tell you exactly where you're supposed to go. The two situations, and I just want to make sure, there really isn't a way that a voter who did not get noticed because, again, of the hurricane and shows up at the wrong precinct in good faith, if a poll worker gives that voter a provisional ballot, that vote would not be counted. I mean, that's the way the statute works, right? It's only if they show up and they know they're at that precinct but they're not on the list for some reason that the provisional ballot statute applies. If they show up in the correct precinct and aren't on the list, if their name isn't on the list, for whatever reason. So it's a very narrow, it's a narrow but important situation. The legislature has not addressed the situation where a poll worker mistakenly gives a ballot to somebody who should be in another precinct or somebody just through no fault of their own does not know where their precinct is. Just so we understand the scope of this law, correct? Well, I think you're right, Your Honor, but I think what the legislature has done is they have made a policy decision and that's what this court's analysis is based on and we're looking at the reasonable relationship to what they've done, not on a strict scrutiny basis, but on just looking at whether this is a reasonable time, place, and manner restriction and they've made the decision that the interest of avoiding problems, keeping order, prohibiting fraud, et cetera, that made the policy decisions. I understand that issue, but what I'm asking, you're representing pursuant to this and knowing what's happened already in the primary where a lot of the provisional ballots were not counted and where there were people that, and again, some county canvassing boards apparently counted votes and others didn't, has the Secretary of State done anything between the primary and today to ensure that those types of errors on poll poll workers will to the extent humanly possible not occur? In other words, as they're now knowing there's a problem, has there been some action that the Secretary of State has taken? I'm quite certain as in all circumstances of elections as we learn from problems that took place just like as we learned in 2000 from the problems that took place and the federal government and the state legislature addressed that by passing the provisional ballot statute, I'm certain the Secretary is making every effort both in terms of responding to the emergency and working with the supervisors as well as responding to the issues that are raised. Let me ask the question I ask your opponent and I'd like you to speak to at the outset is the question here of the difference between whether this is a matter of legislative prerogative in regulating elections or is the provision of a provisional ballot, the providing of provisional ballot a matter of constitutional magnitude? Is it a constitutional right to have a provisional ballot? Has any court addressed that issue or held that? No, Your Honor, and although the appellant responds to your question in the affirmative, they don't cite any provision that says that this is constitutionally required, the provisional ballot is not constitutionally required. Isn't it required by federal law? It is required by public. I don't understand why nobody in any of the briefs have said that, and again, that the legislature just didn't act on this out of a sense that they wanted to help what occurred after the 2000 lecture, but the federal government mandated that the stat should be passed. That's correct, and all states have responded to that mandate, but there is in addressing Justice Wells' question there is no constitutional requirement and it points out the fallacy if you will of the appellant's argument. They want to separate in their brief the issue of the precinct system in general from the precinct based system and the provisional ballot, and you just can't do it. I mean, there's no way to pull those apart because as Justice Quintz recognized in your question there's no way to differentiate between people who show up at the precinct honestly mistaken or between those people and people who deliberately go to a precinct because it's easier. It's certainly easier for me to vote downtown somewhere here right next to my office than it is for me to vote out at Southwood, but it's certainly easier for those who would intend to interfere with the election process to bring a busload of people to Southwood in a little tiny precinct with very few poll workers and inundate them at 7 o'clock in the morning with 500 people and make it impossible for folks in that community to exercise the franchise. And we need only look back to the 40s, 50s, and 60s in the 40s in the Talmadge election in Georgia where you've seen that. You've seen people doing deliberate things like that and the legislature has made the determination that it's not worth that risk that the policy determination is there. Well, I think that in fairness, the precinct system came about in the 1800s, and there really isn't any reason that in this day of computers that if the decision was made to say that there is an easier way to vote that again, and we do this with early voting. We allow people to go downtown because it's easier. We should be encouraging everyone to vote in the easiest way that they're not implying that there's some sinister motive that the appellants have brought here to try to create chaos on election day. I don't think there's any sinister motive. I think their motive is irrelevant. But I do think that a ruling by this court three weeks before an election that declares this statute unconstitutional which I think is the limit of where you can go that declares this statute unconstitutional and creates just that. It portends chaos because we will now be if you declare the provisional ballot statute unconstitutional we will now be in violation of federal law there will be no time in the next three weeks to fix all of these problems that are created and there's no way that this court can grant the remedy requested. I mean the relief that they seek in pages 39 to 42 of their brief is essentially this court act as a super legislature. They want you to instruct the supervisors to do this. They want you to instruct the secretary to do this. You want you to instruct the canvassing board to do this to pick and choose different pieces of the policy that's established by the legislature. You're saying an official challenge. If we were dealing with an as-applied challenge there might be some leeway. I'm not sure about it but an official challenge you're saying it's either all in or out. Definitely an official challenge but I think even in an as-applied challenge there's very little room because as this court recognizes just a few weeks ago in reform party B black there's a direct grant of authority to the legislature in the manner of choosing presidential electors and the federal constitution limits what the court can do as this court recognized and interfering with that. Why don't you share with us and enlighten us to some extent on that concept does the legislature exist I assume because of the constitution the state of Florida does it not? And that constitution tells us what the legislature is how it's composed, what it can do and what it can't do. Would you enlighten us how the document that actually creates the legislature is of no concern to the legislature and they need not look to the Florida constitution? Honestly I'm not being clear I'm not suggesting that it is not within this court's purview to determine whether the legislature has acted constitutionally nor am I saying that the legislature must not act constitutionally whether it be under the Florida or federal constitution. What I'm saying is is that within the limits of the judiciary is authority under the federal constitution what the court can do is declare the statute constitutional or unconstitutional but it cannot grant the specific remedy requested by the appellants because that would be putting the court in the position of the super legislature and I see my red light as well. Thank you very much. Mr. Loboski, now you represent all the supervisors of election. Yes Your Honor. We were an intervener below Bill Cowles is the supervisor of elections in Orange County. He's also the president of the state association of supervisors of elections and I think we intervened not only for the legal questions that were presented but I think really to respond to some perhaps questions like Judge Quince has presented with respect to what happens to an individual when they go to a polling place on election day and there's some question concerning their registration and location at that precinct. Do you tell us what is happening then? As we indicated in our brief very quickly there are rules adopted by the secretary of state and the polling place manual particularly is one of it in this consideration and as the court would see upon reviewing rule 1 S2.034 Florida administrative code there are a series of progressive actions that the poll workers will take when an individual is in question and the very first one is contact with central location. Now each county has a different process by which they go through whether it be laptop computers to get to the central registration supervisor's office, telephones some other mechanism because obviously Liberty County and Miami-Dade are a lot of different animals when you're trying to do this. But I thought the very reason that there was the problem in the 2000 election is because poll workers couldn't get through to the central location and that's why they came up with this at least that's what the congress recognized in passing this act so has that been improved since 2000? Well yes certainly Your Honor and I think it's been improved in number one we created provisional ballot to deal with people who are legitimately where they are and through administrative problems can't be determined to be there and they get to cast their ballot just like they normally would and their ballot will be counted. But I guess that if someone shows up and thinks they're supposed to be there and the poll worker can't get through to the central area how do they know then to give them a provisional ballot properly in other words and there was some again this is unfortunate we have to rely on newspapers but some instances in the primary poll workers giving people provisional ballots when really they should have been in a different precinct. Well number one Your Honor if they do that they're not acting administratively correctly the way they've been trained they're supposed to go through that checklist and determine whether they are and send them to the correct precinct. What is the training that's given the poll workers is there a statewide standard or does it depend on each of the 67 counties? No Your Honor there is a specific directive in the statutes that provide that the secretary of state will adopt a program for training of the poll workers and in fact what the legislature did at the same time they were doing this they specifically require that that training be done immediately preceding the election so that in other words it's not somebody who working at the polling place had their training two years ago we've had legislative changes we've had changes in the procedures that they don't have anything to be aware of. So those trainings which are statewide and implemented immediately before the election hopefully will have the poll workers adequately informed as to what they're supposed to do. Aren't we being naive I mean aren't we being naive in thinking that we are going to have a very uneven system in place that by the very nature of the beast of having 67 different county supervisors of elections. Oh Your Honor you know that we're that this is going to be a very uneven process out there. Well hopefully Your Honor will be as consistent as we possibly can within human nature so I would have to concede your immediate point that obviously when you're dealing with humans you have scenarios where they're going to act differently under the circumstances. In response to this federal mandate your proponents have pointed out for instance our neighbor to the north has taken a different way. Now why isn't that more consistent with this very fundamental I mean this is not only fundamental to voting in Florida this for a long time is what separated us from the rest of the world. The whole foundation of this country deals with the idea that we grant the franchise to our citizens. So shouldn't we be construing these constitutional provisions in Florida here very very very liberally in favor of the right to vote and to have a vote counted and then on the other hand really construing any statutory limitations on this very very very narrowly help me with that if we do this in terms of the precise argument made that that an elector has been provided for in the constitution on a county wide basis and that seemingly on the surface this precinct arrangement here now reduces that qualification to the precinct level another a different geographic provision than is set out in the constitution. Well your honor I would we would submit that pursuant to article 6 section 1 the legislature act properly the decision was made to require the individuals being their precincts like everyone else who early votes absentee votes or votes on election day and under article 6 section 1 in conjunction with section 2 of article 6 the legislature acted properly because the net result of this is convenience voting and I think your question concerning what would happen in Miami Dade County if everyone elected to go to the same precinct or just a number of precincts would be chaos on election day particularly in this election right now because the ballots are all printed there will not be enough to do what the plaintiffs would ask in a reasonable fashion without creating chaotic results much less count the votes in time under the statutes and I see my time is up thank you very much Mr. Byrne thank you your honor I'm Andrew Byrne I represent the intervenor Cecilia Rush Miss Rush is a voter yes ma'am no other status I mean not that she can't intervene I just wanted to know if you she's a voter in Leon County directing my remarks to exactly the question that Justice Anstead and Justice Quince raised and Justice Perente there is no question that when you're dealing with a facial challenge to a statute that there very well might be fact specific problems in the administration of that statute but this challenge is to on its face whether precinct voting is per se unconstitutional and the problem with the concerns being raised is certainly the legislature should consider what could happen in fashioning a time, manner and means of voting to take into account things that we can anticipate such as hurricanes such as voters who show up and are told incorrect information but since we haven't this statute certainly doesn't address that it seems to me that we're going to find ourselves with a number of people who have been disenfranchised because of the hurricane or having to move out of their houses and not getting information timely and poll workers not being able to give them the correct information as to where they should be. And I would submit Your Honor that if we changed the system we would have a different set of factual problems such as if we did away with precinct voting we might very well find ourselves with voters showing up and not being able to vote simply because logistically you can't accommodate 750,000 people. But how do you I guess I want to go back to the constitutional provision that's at issue which is article 6 section 2 which does refer to electors being in the county of their registration so just going back to the sort of the basic question that we're having to deal with isn't the precinct requirement an alteration of article 6 section 2 which only requires that electors be in the county that they're registered in. Well one deals with what are the characteristics of the voter that allows them to participate in the process and another one is a time manner and means of voting. It's not unconstitutional to say to a voter you have the right to vote in this county somewhere but we are going to make it an orderly process and we're going to divide the voters up so that we have some voting in this precinct, some voting else but we will provide you a place to vote in the county just like the constitution provides. We're not talking about a situation where a voter from Leon county is told you have to go to Palm Beach to vote. But are there some situations where we really have gotten to where and again you're saying we can't look as applied where the precinct could be right next door or in the same building and the person doesn't know that and then mistakenly those so what we're talking about now with this number of precincts that we have that we're not talking about going from one end of the county to the other it may be just an era in going from one block to another. Well your Honor I suppose that there's a million things that we could come up with. Well those are I think actual situations and we're not looking at the things that happen actually excuse me. In this record there's not such situations because we're dealing with a facial challenge but you're right there are a myriad of situations that could come up and that's why the legislature has the plenary power to devise the best system giving all considerations. Is precinct voting perfect? No. Neither would be non-precinct voting and we would have a different set of problems. The problem is under the federal constitution this is exactly what the relief they seek is exactly what this court has ruled it cannot do which is take out its blue pencil and come up with a better system that comports with what the appellants would argue is a better way to do it that is what the legislature I see my time is up thank you. Thank you very much alright rebuttal. Thank you I have five points I want to make. The first is there's no... Five points in five minutes I'll see if you get there. I'll make it. Good luck. Thank you. The first is that there's no question that a substantial number of voters are going to show up outside their assigned precinct due to hurricanes, due to election official error or whatever. Those votes if they're allowed to be cast are going to be sent to the county canvassing board and they are going to be found if they're eligible voters that although they're eligible those votes won't be counted. I think you have before you get to point two the first concern with this idea that you've raised a facial challenge and in a facial challenge the remedy is unless there's something severable is to declare the statute unconstitutional. What you're asking this court to do is really would be rewriting legislation which we are unable to do in a situation where it would be clearly different than what is now on the books. Is that one of your five points about how we can do that? Let me make it point two. The court has when paced with a temporary injunction request which is one of the two issues that's before the court, temporary injunction the court has the equitable discretion to fashion a remedy that makes sense in the context of the situation that's presented. The only thing that's equitable here is to ensure that every vote is counted. You can do that make this equitable decision without declaring the statute unconstitutional? No I think the statute will have to be declared unconstitutional and the equitable remedy which is very easy is to require that if someone shows up at a polling place and their names not on the list they get a ballot a provisional ballot. Then the county canvassing board will determine if that voter was an eligible voter and if so that vote is counted. It's very simple it's very close to what they do now. Aren't we coming back though to the sort of chaos issue again. Headlines tomorrow after we rule the way that you say the Florida Supreme Court rules voters can vote at any precinct within their county and that's the message that is sent out and so now we have people that say well I know that there's a polling place over at the courthouse in downtown and before I head home and try to make it to the little Catholic church out there or the school or the community center I'm just going to go over here and tell them and bring the headline and tell them I'm entitled to vote here because the Florida Supreme Court told me I was and aren't we wouldn't we then be issuing free passes that would invite confusion and chaos and therefore impair the right of others to vote in a negative way. There's not going to be chaos here in the real world outside this court people are not going to purposefully count a provisional ballot forcing them to go through the hassle of filling out an affidavit forcing them to deal with the fact that some of their their votes may not be counted for the down ballot races. But aren't we coming now to the issue about as applied that is that what you're really saying is that if people aren't going to do that they're only going to do it and truly they didn't know the right place to go and it was because the hurricane changed the location and now they in good faith and based on everything they knew showed up at the right place and isn't that really an as applied challenge to the application of the statute. No, because what we're talking about is ensuring that voters are treated as the electors of the county and that's a facial issue a facial problem with this statute now what's going to happen in the real world is if the court were to grant the remedy we requested is this state will function exactly like Georgia. People aren't running around in Georgia purposefully voting in the wrong precinct. Well isn't it part of the problem is maybe answer this question why did you wait until August to bring this proceeding to this court when the statute's been on the books for over three years so that you could go through the normal process of a facial as applied challenge have a trial court have evidence presented etc. Why did you wait to the last minute and seek at this court in the end of August With respect Justice Bell if anything we brought this case before we had to bring it I mean the problem that we're facing is that there may be an outcome Why didn't you bring it before the end of August? We brought it as soon as we were able given the fact that what we're seeing is a substantial number of votes that may be sitting in county canvassing boards uncounted that may be outcome determinative in an election Why didn't we see that after the 2002 election? What we saw was we saw hurricanes coming from the state we saw a lot of problems that presented themselves. Let me get to one other point If it's number three it may have to be your last point somebody has a question here you're in your time Thank you Chief Justice Perante I really do have one other point I wanted to make which is that the early voting law in the state which allows electors to vote at a central place in the county that's not their precinct shows that you really don't have to vote at your precinct What the Constitution requires is that you vote in your county because you're an elector of the county There's nothing magical about the precinct What's magical is that every vote be counted Thank you In which the court will be a recess Please try American Perspective Saturday the art of selling a candidate a panel discussion with Mark McKinnon, Donna Brazil Donnie Deutsch and Frank Luntz Howard Dean and Dick Gephardt went negative went very, very strongly negative In the last