IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLORIDA

MICHAEL C. VOELTZ,

) ) Plaintiff, ) ) vs. ) ) BARACK HUSSEIN OBAMA, et. al. ) ) ) Defendants. ) ) ____________________________________________ )

Case No.: 2012CA00467

PLAINTIFF'S REPLY TO DEFENDANT SECRETARY OF STATE'S ADDITIONAL BRIEF

The Florida contest of election statute clearly allows Plaintiff to challenge the eligibility of any person elected or nominated. Plaintiffs have clearly set forth that Florida Law establishes that an election or nomination has taken place.

Section 103.101(1)(b), Florida Statutes, specifically sets forth that: "Each political party other than a minor political party shall, on the date selected by the Presidential Preference Primary Date Selection Committee in each year the number of which is a multiple of 4, elect one person to be the candidate for nomination of such party for President of the United States or select delegates to the national convention, as provided by party rule. Any party rule directing the vote of delegates at a national nominating convention shall reasonably reflect the results of the presidential primary, if one is held."

Section 103.101(1)(b), Florida Statutes (2011) (Emphasis added). Pursuant to section 103.101(b), the winner of the Presidential Primary is "elected" on the date of the Presidential

Primary, which was held this year on January 31, 2012. Whether that person runs unopposed or not is irrelevant. Since there was no opposition, Barack Obama is the winner as of January 31, 2012. The winner of the Presidential Primary is "elect[ed]" and that the nomination "shall" reflect the presidential primary. Since there is no presidential primary, and Barack Obama's name was the only one presented, he is automatically elected, and will be the nominee. In short, there is no dispute, nor any question, that Barack Obama is the nominee for the Democratic Party of Florida. Moreover, as set forth in Plaintiff's Opposition to Defendant's Motion to Dismiss, no less than the Supreme Court of Florida in Graham held, unequivocally, that "if there is only one candidate at the close of qualification, that candidate is automatically nominated for office." Republican State Exec. Comm. v. Graham, 388 So.2d 556, 557(1980). This decision was meant to do away with specious arguments such as the one Defendant Secretary of State has set forth. This decision simply mandates what everybody knows is fact: if there is only one person then that one person is the nominee. Deciding otherwise would create a loophole within the contest of election statute. As the Supreme Court of Florida has consistently held "a statute should not be interpreted in a manner that would deem legislative action useless." Alexdex Corp. v. Nachon Enters., 641 So. 2d 858, 861 (Fla. 1994), citing State v. Sullivan, 95 Fla. 191, 116 So. 255 (1928). The state of Florida clearly enacted a significant number of election law, all of which work together as one legislation, specifically to protect the integrity of the election process. To create such a loophole would essentially nullify a challenge to any unopposed Presidential Primary. The election for President of the United States is arguably the most important of all elections, and should not be excluded.

Moreover, Defendant's claim of section 101.252's inapplicability is incorrect and nonmeritorious. Section 101.252 exists in Chapter 101 of the Florida States, entitled "Voting Methods and Procedures." This ominous election law chapter covers all general provisions of elections within Florida. There is no specific provision excluding section 101.252 from applying to the Presidential Primary, and this chapter was enacted to cover all elections, generally. If, as Defendants indicate, the courts must not "color" an unambiguous statute "by the addition of words...", then this Court must not, respectfully, add an exemption to the statute where one does not exist. Since the two provisions do not conflict, they must be read in tandem as complementary. Morton v. Mancari, 417 U.S. 535,(1974). As the Supreme Court held in Morton, "Where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment." Id. at 550-551. The Supreme Court went further and explained "when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective. When there are two acts upon the same subject, the rule is to give effect to both if possible . . . The intention of the legislature to repeal `must be clear and manifest." Id. (citing United States v. Borden Co., 308 U.S. 188, 198 (1939)). There is no "clear and manifest" intention by the legislature to exempt the Presidential Primary from this statute, and it must apply to all elections, including the Presidential Primary. Thus, Defendant Obama was automatically declared the nominee for the Democratic Party. Plaintiff's claim is also ripe because this harm is "capable of repetition, yet evading review." Roe v. Wade, 410 U.S. 113, 125 (1973). In Roe, the injury to the petitioner concerned her rights with regard to pregnancy. The Roe respondent raised the issue of standing because the petitioner was no longer pregnant by the time her claims were adjudicated. The Supreme Court

noted that when "pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete." The Court thus held that "it truly could be 'capable of repetition, yet evading review.'" Id. (citing Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911)). If it is declared that there is no standing until after the Democratic National Convention in September, 2012, then Plaintiff, or any voter, will have a short span of one month to initiate an action and seek a decision before the 2012 general election occurs. It is highly unlikely, if not impossible, for any court to make the determination of eligibility in such a short amount of time. The result will be uncertainty for months after the election. This outcome is to be avoided at all costs. Even in the unlikely event the court does not rule in Plaintiff's favor now, the matter will clearly be ripe for review after the 2012 Democratic National Convention. It is at this time even Defendants concede that Defendant Obama will be the nominee for the Democratic Party. Nevertheless, as a matter of the law and common sense it makes "legal sense" to reach this matter now to avoid the potential for fraud on the people of Florida with regard to eligibility. It would be in everyone's interests not to put off this contest until after the Democratic National Convention or the general election, with the prospect that Defendant Obama, if he wins, might have his election nullified. For all these reasons, Plaintiff requests that Defendant's Motion to Dismiss, or alternative Motion for Summary Judgment be denied.

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// Dated: June 14, 2012

Respectfully submitted, /s/ Larry Klayman Larry Klayman, Esq. F.L. Bar No. 246220 Klayman Law Firm 2020 Pennsylvania Ave. NW, Suite 800 Washington, DC 20006 Tel: (310) 595-0800 Email: leklayman@gmail.com

CERTIFICATION I HEREBY CERTIFY that a true copy of the foregoing Reply to Defendant Secretary of State's Supplemental Brief has been served by email and by U.S. mail on June 14, 2012:

Daniel Nordy Ashley E. Davis Florida Department of State R.A. Gray Building 500 South Bronough Street Tallahassee, FL 32399 Mark Herron Joseph Brennan Donnelly Robert J. Telfer, III Messer, Caparello & Self, P.A. 2618 Centennial Place Tallahassee, Florida 32308

Stephen F. Rosenthal Podhurst Orseck, P.A. 25 West Flagler Street, Suite 800 Miami, FL 33130-1720 Richard B. Rosenthal The Law Offices of Richard B. Rosenthal, P.A. 169 East Flagler Street, Suite 1422 Miami FL 33131 James A. Peters Office of the Attorney General FL-01, The Capital Tallahassee, FL 32399-105

Counsel for Defendants

With a courtesy copy to be served by hand on June 15, 2012 to:

Hon. Terry P. Lewis Circuit Judge Leon County Courthouse Room 301-C 301 S. Monroe Street Tallahassee, FL 32301

Respectfully submitted,

/s/ Larry Klayman Larry Klayman, Esq. F.L. Bar No. 246220 Klayman Law Firm 2020 Pennsylvania Ave. NW, Suite 800 Washington, DC 20006 Tel: (310) 595-0800 Email: leklayman@gmail.com