US Supreme Court Briefs

In the Supreme Court of the United States

BUSH, George W.
v.
PALM BEACH COUNTY CANVASSING BOARD, ET AL
No. 00-836

Brief Amicus Curiae on
Behalf of
DISENFRANCHISED VOTERS IN THE USA
Brief in Support of Neither Party
Affirming in Part the Opinion of the Florida Supreme Court and
Seeking Equitable Relief

Filed Under Rule 37.6 of the United States Supreme CourtNov. 28, 2000EXPEDITED BRIEF ON 81/2 by 11 paper, white cover (Final version to be delivered to theClerk of the US Supreme Court with appropriate colored cover on or before 4p.m. TuesdayDecember 5, 2000)

Attorney for Amicus Curiae
Ilise L. Feitshans JD and ScM
Counsel of Record
Adjunct Faculty Cornell University ILR and
The George Washington University School of Public Health
Post Office Box 2233 Haddonfield NJ USA 08033
856 428 0605 fax 856 428 4198
ilise@prodigy.net

NOTE: THIS BRIEF WAS INITIALLY FILED ON BEHALF OF CHARLES WEILER,MARYANN HUNSBURGER AND PATRICK McFADDEN, citizens who voted in theNovember 2000 Election for the 43rd President of the United States. By leave of these Amiciand of the Clerk of the Supreme Court of the United States, this brief is herebyConsolidated with Petitions Pro Se by two voters who were unaware of the Rules ofProcedure of the US Supreme Court of the United States and would have otherwise beenwithout representation in this matter even though they have spent time and effort writingbriefs for this case on their own. Those two voters, Gregory Apelain and Justin A. Frank,have joined the original Amici. Their comments essentially parallel the view of the originalAmici and therefore will appear as Exhibit 1 and Exhibit 2 of the final version of this brief.

Brief Amicus Curiae on
Behalf of DISENFRANCHISED VOTERS IN THE USA
Brief in Support of Neither Party
Affirming in Part the Opinion of the Florida Supreme Court
and Seeking Equitable Relief

Table of Contents

Table of Authorities and Cases Cited

STATEMENT OF INTEREST BY AMICUS

SUMMARY OF THE ARGUMENT

  1. RULE 37.6 NOTIFICATION

  2. QUESTIONS PRESENTED BY THIS COURT

  3. STATEMENT OF THE CASE

    1. POTENTIAL UNCONSTITUTIONAL PRACTICES IN FLORIDA IMPACTTHE ENTIRE NATION

    2. STRICT SCRUTINY IS WARRANTED TO PRESERVE THE FRANCHISE

  4. QUESTIONS PRESENTED TO THE COURT

    QUESTION 1. Whether post-election judicial limitations on the discretion granted by thelegislature to state executive officials to certify election results, and/or post-electionjudicially created standards for the determination of controversies concerning theappointment of presidential electors, violate the Due Process Clause or 3 U.S.C. s 5, whichrequires that a State resolve controversies relating to the appointment of electors under"laws enacted prior to" election day.

    1. JUDICAL REVIEW, ALTHOUGH RETROSPECTIVE IS NOT ARETROACTIVE USE OF THE LAW.

    2. THE FLORIDA COURT RULED NARROWLY, CONSISTENT WITHTHE UNITED STATES CONSTITUTION AND THE VOTING RIGHTSACT OF 1965 AND THE OBLIGATION OF COURTS TO RESOLVE POST-ELECTIONDISPUTES.

    3. VOTING RIGHTS OF ALL VOTERS ARE IMPACTED BY THESECIRCUMSTANCES REQUIRING A COMPLETE RECOUNT OF ALL BALLOTSOR A NEW ELECTION:

    QUESTION 2: Whether the state court's decision, which cannot be reconciled with statestatutes enacted before the election was held, is inconsistent with Article II, Section 1,clause 2 of the Constitution, which provides that electors shall be appointed by each State"in such Manner as the Legislature thereof may direct."

    1. THE UNITED STATES CONSTITUTION ALLOWS LEEWEAY TO THESTATES BUT DOES NOT ALLOW OR ENCOURAGE LEGISLATORS TOSUBSTITUTE THEIR WISHES OR DESIRES FOR THE WILL OF THE PEOPLE

    2. THE WILL OF THE PEOPLE OF FLORIDA IS PRESENTLY UNKNOWN

    Question 3. What would be the consequences of this Court's finding that the decision of theSupreme Court of Florida does not comply with 3U.S.C Sec. 5?

    UNCONSTITUTIONAL ELECTION LAWS REQUIRE REMEDIES SUCH ASRECOUNT OR A NEW ELECTION

CONCLUSION:
UNCONSTITUTIONAL LAWS CANNOT BE SUPPLANTED BY THEARBITRARY SELECTION OF ELECTORS BY LEGISLATORS AND REQUIRE AFULL RECOUNT OF ALL BALLOTS OR A NEW ELECTION

EXHIBITS:
1 and 2 AWAITING COPY FROM AUTHORS

Brief Amicus Curiae on
Behalf of DISENFRANCHISED VOTERS IN THE USA
Brief in Support of Neither Party
Affirming in Part the Opinion of the Florida Supreme Court
and Seeking Equitable Relief

Table of Authorities and Cases Cited

CASES CITED:

Anderson v. Celebrezze, 460 U.S. 780 (1983),

FLADELL and ALBERTA MCCARTHY and LILLIAN GAINES, Plaintiffs. vs. PALMBEACH COUNTY CANVASSING BOARD, as constituted by County Court Judge CharlesBurton; Supervisor of Elections Theresa LePore; and County Commissioner Carol Roberts;GEORGE W. BUSH, DICK CHENEY, AL GORE and JOE LIEBERMAN, Defendants.CASE NO. CL '00 10965 Florida Circuit Court, Fifteenth Judicial Circuit, Palm BeachCounty. November 8, 2000

Kramer v Union Free School District No. 125 395 US 621 (1969).

League of United Latin American Citizens (LULAC) v. North East Independent SchoolDist., W.D.Tex.1995, 903 F.Supp. 1071.)

Marbury v. Madison 1 Cranch 137, 2 L.Ed. 60 (1803)

McCulloch v Maryland 17 US (4 Wheat.) 316, 421 (1819)

McDERMOTT, et al , CANVASSING BOARD OF VOLUSIA COUNTY, FLORIDA,Plaintiffs, v. HONORABLE KATHERINE HARRIS,

MILLER, a registered voter of the State of Florida Plaintiff, v. KATHERINE HARRIS,Secretary of State, et. Al. DOCKET-NUMBER: 00-9004-CIV United States District Court,S.D. Florida. November 8, 2000) (withdrawn)

National Ass'n for Advancement of Colored People, Inc. (NAACP) v. City of Niagara Falls,N.Y., W.D.N.Y.1994, 913 F.Supp. 722, affirmed 65 F.3d 1002.)

SIEGEL, et al., Florida REGISTERED VOTERS, PLAINTIFFS/APPELLANTS, andGOVERNOR GEORGE W. BUSH and DICK CHENEY, et.al. v. THERESA LePORE, et.Al. COUNTY CANVASSING BOARDS of PALM BEACH, MIAMI-DADE, BROWARDand VOLUSIA COUNTIES, 00-15981 United States Court of Appeals, Eleventh Circuit.November 15, 2000;

South Carolina v Katzenbach 383 US 301, 314-15

STATUTES AND U.S. CONSTITUTIONAL PROVISIONS

Civil Rights Act 42 U.S.C. 1983

United States Constitution: Article IV: Section 1.

United States Constitution Fourteenth Amendment

United States Constitution Due Process Clause or 3 U.S.C. s 5

Voting Rights Act of 1965 (Amended 1970) 42 U.S.C. 1973

OTHER AUTHORITIES:

Brief of Petitioner George W. Bush Jr. Bush v. Palm Beach County Board of CavassersUnited States Supreme Court 00-836 November 22, 2000

Laurence Tribe, AMERICAN CONSTITUTIONAL LAW "RIGHTS OF POLITICALPARTICIPATION" Second Edition, The Foundation Press NY at 1086-87]

In the Supreme Court of the United States
BUSH, George W.
v.PALM BEACH COUNTY CANVASSING BOARD, ET AL
No. 00-836
Brief Amicus Curiae on
Behalf of
DISENFRANCHISED VOTERS IN THE USA
Brief in Support of Neither Party
Affirming in Part the Opinion of the Florida Supreme Court and Seeking Equitable Relief
Filed Under Rule 37.6 of the United States Supreme Court

Nov. 28, 2000

Attorney for Amicus Curiae
Ilise Levy Feitshans JD and ScM
Counsel of Record
Adjunct Faculty Cornell University ILR and
The George Washington University School of Public Health
Post Office Box 2233
Haddonfield NJ USA 08033
856 428 0605 fax 856 428 4198
ilise@prodigy.net

STATEMENT OF INTEREST BY AMICUS

Charles J. Weiler is a voter from the State of New Jersey. Mr Weiler has been an Americancitizen since he was born, and served in the US Peace Corps. Mr Weiler has been a registeredvoter since 1972. He is a self-declared "Independent" voter who does not regularly associate withany particular political party affiliation. Maryann B. Hunsberger, a voter from the State of NewJersey, has been an American citizen since she was born, and has been a registered voter since1976. She is a disabled American. Patrick J. McFadden, is a voter from Pennsylvania, and hasbeen an American citizen since he was born; he has been a registered voter since 1969. GregoryApelain is a voter from the State of New Mexico. Mr. Apelian has been an American citizen sincehe was born. Mr. Apelian has been a registered voter since 1980. Justin A. Frank, MD, is a voterfrom the District of Columbia, (Washington, D.C.). He has been an American citizen since he wasborn and has been a registered voter since 1964.

Mr. Weiler and similarly situated US Citizens who voted in the State of New Jersey and otherstates in the United States during the national presidential election that was held on November 7,2000 have an interest in preserving his franchise and that of other voters. Mr. Weiler and othersimilarly situated voters run the risk of having their vote diluted or disenfranchised by any or allunconstitutional Florida State Electoral laws or unconstitutional practices under Florida Electionlaws that obfuscate their votes so that the will of the people cannot be heard.

SUMMARY OF THE ARGUMENT

A fundamental precept of democracy embraces recourse to the courts after events have occurred.A fundamental precept of asking the courts to solve problems retrospectively is the essence ofJudicial Review, which often requires crafting a new rule to fix a pre-existing problem after theproblem has become manifest, but in the process also filling the void in the law with a new rule inorder to solve the problem at bar. The case at bar involves the decision of the Florida SupremeCourt solving a problem by crafting a rule as needed, but not in a prohibited "retroactive" manner.The problem it attempted to solve threatens to disenfranchise voters throughout the United Statesof America who voted in the national election for the 43rd President of the United States, if thelaws in Florida are found to be unconstitutional or if the electoral process in Florida as applied inthat election cannot withstand strict scrutiny as the sacrosanct right to vote requires under theUnited States Constitution. If the Florida law can be repaired as the Florida Supreme Courtattempted, there should be a statewide recount of votes. If the law is so flawed that it must bediscarded, there should be a new election as a consequence of these flaws. The legislature,although authorized under the US Constitution to select electors, cannot supplant the will andvoice of the people if that voice as expressed through voting has not been clearly heard. TheFlorida legislature must therefore await such recounted ballots or new election before it caninstruct or select its electors.

I. RULE 37.6 NOTIFICATION

All parties to this case have granted a blanket consent for Amici. Note: this brief was initiallyfiled on behalf of CHARLES WEILER, MARYANN HUNSBURGER AND PATRICKMcFADDEN, citizens who voted in the November 2000 Election for the 43rd President of theUnited States. By leave of these Amici and of the Clerk of the Supreme Court of the UnitedStates, this brief is hereby Consolidated with Petitions Pro Se by two voters who were unawareof the Rules of Procedure of the US Supreme Court of the United States and would haveotherwise been without representation in this matter even though they have spent time and effortwriting briefs for this case on their own. Those two voters, Gregory Apelain and Justin A. Frank,have joined the original Amici. Their comments essentially parallel the view of the original Amiciand therefore will appear as Exhibit 1, (Gregory Apelian) and Exhibit 2 (Justin Frank) in the finalversion of this brief.

II QUESTIONS PRESENTED BY THIS COURT

1. Whether post-election judicial limitations on the discretion granted by the legislature to stateexecutive officials to certify election results, and/or post-election judicially created standards forthe determination of controversies concerning the appointment of presidential electors, violate theDue Process Clause or 3 U.S.C. s 5, which requires that a State resolve controversies relating tothe appointment of electors under "laws enacted prior to" election day.

2. Whether the state court's decision, which cannot be reconciled with state statutes enactedbefore the election was held, is inconsistent with Article II, Section 1, clause 2 of theConstitution, which provides that electors shall be appointed by each State "in such Manner as theLegislature thereof may direct."

3. What would be the consequences of this Court's finding that the decision of the Supreme Courtof Florida does not comply with 3U.S.C Sec. 5?

III. STATEMENT OF THE CASE

A. POTENTIAL UNCONSTITUTIONAL PRACTICES IN FLORIDA IMPACT THE ENTIRE NATION

The United States Constitution (Article IV: Section 1.) requires "Full faith and credit shall begiven in each state to the public acts, records, and judicial proceedings of every other state. Andthe Congress may by general laws prescribe the manner in which such acts, records, andproceedings shall be proved, and the relief thereof." [See also: Exhibit 1 by Gregory Apelian]

The national election of President and Vice President transcends state boundaries and hasimplications beyond local (State) elections. Upholding the election laws faithfully executed inother States of the United States requires under the United States Constitution, as a socialcontract, that each State create through its legislature and implement through its own meanslawfully impartial and fair elections. That social contract is codified in Article IV of the UnitedStates Constitution, the "full faith and credit" clause.

While the process may be shaped by the legislature of each State in part, that process is subject tojudicial review to correct unforseen problems or irregularities, and the integrity of the entirenation election rests upon the good faith belief that each State will respect the other by refrainingfrom improper practices. The appearance of impropriety in an election harms the integrity of theoutcome of the whole and therefore is a matter of constitutional and national concern.Furthermore, this Court has consistently given matters regarding the paramount right to vote strictscrutiny. Democracy so requires. The concept of Judicial Review, endemic in an appreciation ofall the workings of this Court and the Courts of the States of the United States is a long-cherishedprinciple of democracy, first pronounced by this Court nearly two hundred years ago, Marbury v.Madison 1 Cranch 137, 2 L.Ed. 60 (1803), which asked questions that would be equally aptbefore the Florida Supreme Court this year, "2d.If he has a right, and that right has been violated,doo the laws of this country afford him a remedy? [and] 3d. If they do afford him a remedy, is it amandamus issuing from this Court?"

The Marbury Court exhibited prescience again, regarding events in Florida recent to us butcenturies after it wrote its opinion, "It is not the office of the person to whom the writ is directed,but the nature of the thing to be done that the propriety or impropriety of issuing a mandamus, isto be determined".

As stated by Petitioner (p.4)"The choosing of presidential electors is a matter of great nationalimportance and interest."As this Court stated in Anderson v. Celebrezze, 460 U.S. 780 (1983),[I]n the context of a Presidential election, state-imposed restrictions implicate a uniquelyimportant national interest. For the President and Vice President of the United States are the onlyelected officials who represent all the voters in the Nation. Moreover, the impact of the votes castin each State is affected by the votes cast for the various candidates in other States.'Id. at 794-95.As cited by Petitioner. Furthermore, one need not have a special interest or stake in the outcomeof a particular election in order to have a voice as a voter in that election (Kramer v Union FreeSchool District No. 125 395 US 621 (1969). Under vigorous equal protection scrutiny, this Courthas suggested that the fundamental character of the right to vote is crucial to ensuring that electedofficials fairly represent the electorate. [Laurence Tribe, AMERICAN CONSTITUTIONALLAW "RIGHTS OF POLITICAL PARTICIPATION" Second Edition, The Foundation Press NYat 1086-87]

One unprecedented aspect of the recent election in Florida is that it has produced a remarkableamount of litigation, characterized by the Petitioner as "chaos". Without addressing the merits ofthese cases, the mere existence of such litigation demonstrates that the existing Florida laws are, ifnot unconstitutional, then problematic at best. Dozens of cases have been filed, only a smallsample of which are cited here for brevity. (See: McDERMOTT, et al , CANVASSING BOARDOF VOLUSIA COUNTY, FLORIDA, Plaintiffs, v. HONORABLE KATHERINE HARRIS, asSECRETARY OF STATE, STATE OF FLORIDA, and HONORABLE KATHERINE HARRIS,HONORABLE BOB CRAWFORD, HONORABLE LAURENCE C. ROBERTS, as theELECTIONS CANVASSING COMMISSION, Defendants requesting extended time from theSecretary of State of Florida to count votes; See also: MILTON H. MILLER, a registered voter ofthe State of Florida Plaintiff, v. KATHERINE HARRIS, Secretary of State, Chief ElectionOfficer, THERESA LePORE. Supervisor of Elections for Palm Beach County, Florida, andFLORIDA DEPT OF STATE, DIVISION OF ELECTIONS Defendant, seeking EMERGENCYMOTION FOR INJUCTIVE RELIEF DOCKET-NUMBER: 00-9004-CIV United States DistrictCourt, S.D. Florida. November 8, 2000)

In Miller V,. Harris, above, (withdrawn) Plaintiff voted for a presidential candidate but wasunsure of who he voted for as a result of the "confusing and misleading ballot" See also: SIEGEL,et al., Florida REGISTERED VOTERS, PLAINTIFFS/APPELLANTS, and GOVERNORGEORGE W. BUSH and DICK CHENEY, as CANDIDATES for PRESIDENT and VICEPRESIDENT of the UNITED STATES OF AMERICA, Plaintiffs-Appellants v. THERESALePORE, et. Al. COUNTY CANVASSING BOARDS of PALM BEACH, MIAMI-DADE,BROWARD and VOLUSIA COUNTIES, Respectively, Defendants-Appellees. 00-15981 UnitedStates Court of Appeals, Eleventh Circuit. November 15, 2000; See also ANDRE FLADELL andALBERTA MCCARTHY and LILLIAN GAINES, Plaintiffs. vs. PALM BEACH COUNTYCANVASSING BOARD, as constituted by County Court Judge Charles Burton; Supervisor ofElections Theresa LePore; and County Commissioner Carol Roberts; GEORGE W. BUSH, DICKCHENEY, AL GORE and JOE LIEBERMAN, Defendants. CASE NO. CL '00 10965 FloridaCircuit Court, Fifteenth Judicial Circuit, Palm Beach County. November 8, 2000 which states inits pleadings: "all of the candidates for the Presidential election were listed on two facing pages ofthe ballot booklet that is attached to each voting machine. The punch holes for each candidatewere in a single column that ran between the facing pages.. The names of independent (non-Democratic and non-Republican candidates such as Pat Buchanan) and the punch holes for suchcandidates were placed adjacent to the names of the Democratic Candidates, Al Gore and JoeLieberman. . As a result, many voters, and in particular, many senior citizens, intending to votefor Al Gore and Joe Lieberman, mistakenly punched the punch hole on the ballot card designatedfor Pat Buchanan and Ezola Foster (hole #2).[That same document continues]"In addition, theholes in the ballot cards for numbers 4 (Gore and Lieberman) and 5 (Pat Buchannan and EzolaFoster) were directly adjacent to the section of the ballot listing the Democratic candidates (Goreand Lieberman). As a result, many voters, and in particular, many senior citizens, intending tovote for Al Gore and Joe Lieberman punched punch hole numbers 4 and 5 in the mistaken beliefthat such numbers referred to a vote for Al Gore and Joe Lieberman. It has been reported in thePalm Beach Post that in Palm Beach County Reform Candidates (Pat Buchannan and EzolaFoster) received 3,040 votes."). Despite this morass, Florida law does clearly require the countiesand if necessary, reviewing courts "to determine the voter's intent." Fla. Stat. s 102.166(7)(emphasis added). The totality of the problems described in good faith in these and otherpleadings silence the voice of the people in Florida so that the true intentions of the votersremains unknown.

B. STRICT SCRUTINY IS WARRANTED TO PRESERVE THE FRANCHISE

When viewed in the aggregate, the citizen cases filed in good faith (listed above) raise a suspicionof impropriety that merits strict scrutiny when the fundamental right to vote is at stake, especiallywhen the election involved is a national election for the President of the United States.

This situation was further complicated on November 26, 2000 when, pursuant to the first of twodeadlines made available to the Florida Secretary of State in her discretion for accepting final votetallies for certification, the Secretary of State accepted a combination of original tallies from somecounties, hand counted-recount tallies with corrections from other counties, and rejected a partialrecount from yet another county which requested additional time to complete its task, even thoughthat same county noted that its work would be completed before the second of the court-established deadlines. It has also been reported in news media that there may be anywhere fromten thousand to twenty thousand uncounted votes across various Florida counties. The VotingRights Act was designed to protect every citizen's vote from precisely such errors. Also, the lawis designed top prevent the dilution or usurpation of the votes from blacks, other minorities orother suspect classifications in a pattern, "had all people cast ballots that could be counted alongthe same lines as their neighbors, Mr. Gore would have gained nearly 7000 (seven thousand)votes. [See New York times, Wednesday Nov 29 2000 "Racial Pattern In Demographics ofError-Prone Ballots" A25 by Josh Barbanel and Ford Fessenden] The same article previouslynoted that, "The impact of these differences on the outcome will never be known but theirpotential magnitude is evident in Miami-Dade County, where predominantly black precincts sawtheir votes thrown out at twice the rate as Hispanic precincts and nearly four times the rate ofwhite precincts. In all, one out of eleven ballots in predominantly black precincts were rejected, atotal of 9,904 (nine thousand nine hundred and four)." Id., New York Times. [See also: Exhibit 2by Justin A. Frank, MD]

The Voting Rights Act of 1970 was enacted to enforce the Fifteenth Amendment which providesthat the right of citizens to vote shall not be denied or abridged by the United States or by anystate on count of race, color, or previous condition of servitude. (National Ass'n for Advancementof Colored People, Inc. (NAACP) v. City of Niagara Falls, N.Y., W.D.N.Y.1994, 913 F.Supp.722, affirmed 65 F.3d 1002.)

Thus, the "standardless" recounting in "chaos" about which the Petitioner initially complainedwas actually compounded by partisan refusal to accept partial tallies and await a later, but no lessconvenient deadline before certification [See Petitioner's Brief]. Consequently, whether byintention or by inherent flaws in the Florida Election laws and its attendant process, the Certifiedvotes for Florida at the time of this writing are an incomplete admixture of several inconsistenttallying methods and cannot accurately reflect the will of the people. Such problems, regardless oftheir cause or their precise number, rise to such a level of magnitude that they encompass theentire voting process and have undermined the integrity of the entire nation's votes, threatening toabridge the Fourteenth Amendment due process rights of all voting citizens in the United States.

The more voters that are disenfranchised in Florida and in the nation, the more we give up ourdemocracy. The good faith obligation of the States to pass and uphold fair election laws is a partof the social contract between the States of the United States that is a fundamental bedrock of ournation's union. Under the United States Constitution Article IV, full faith and credit for the acts ofthe respective States requires no less than an honorable and honored mutual respect, exhibited inpart through fair and accurate election laws and attendant electoral process. To be meaningful,such requirements for full faith and credit necessarily include keeping "such acts, records, andproceedings" of elections for President and Vice President of the United States. Furthermore, thefailure of any one State to uphold its portion of the social contract that requires fair, accurate andobjective counting (or recounting) of ballots is a breach of the social contract between the Statesof the United States as expressed and implied in the US Constitution. Such a breach of the socialcontract taints the entirety of any national Presidential election, thereby disenfranchising allcitizens who voted in said national election.

IV QUESTIONS PRESENTED TO THE COURT

1. Whether post-election judicial limitations on the discretion granted by the legislature to stateexecutive officials to certify election results, and/or post-election judicially created standards forthe determination of controversies concerning the appointment of presidential electors, violate theDue Process Clause or 3 U.S.C. s 5, which requires that a State resolve controversies relating tothe appointment of electors under "laws enacted prior to" election day.

A. JUDICIAL REVIEW, ALTHOUGH RETROSPECTIVE IS NOT A RETROACTIVEUSE OF THE LAW.

Petitioner mischaracterizes the decision of the Florida Supreme Court as "retroactive" andperhaps even prohibited "ex post facto" laws (See Petitioner's Brief) . Yet, the logic of a situationrife with inconsistencies in the written legislative statute mandates that a court review the electionlaws as applied to ballots cast by voters. Such review can only occur after the electoral processhas revealed its embedded errors, and therefore by definition must be a post-hoc review. To bemeaningful, the court must be able to rule without being considered to have written prescribedretroactive or ex post facto rules. The Constitutional principle of Judicial Review has long beenknown to this Court, first articulated nearly two hundred years ago in Marbury v. Madison 1Cranch 137, 2 L.Ed 60 (1803).

Petitioner has noted, "Given the national significance of the Florida election results, it is essentialthat the counting of ballots be conducted in a fair and consistent manner in accordance withestablished Florida law". Petitioner fails to point out that the system, absent judicial intervention,had reached an impasse because of the legislature's failure to provide clear deadlines forbeginning or completing requested or mandatory recounts of ballots. The Florida Supreme Courtcrafted a deadline to save the statute. In Marbury v. Madison 1 Cranch 137, 2 L.Ed. 60(1803), whose remarkable prescience speaks to the issues at Bar, [supra] this Court furtheropined, "Those then who controvert the principle that the Constitution is to be considered, incourt, as paramount law, are reduced to the necessity of maintaining that courts must close theireyes on the constitution and see only the law".

If anything, the more convenient was also the later deadline: Tallies accepted at the first deadlinerequired the Secretary of State on Sunday November 26 2000 to open her offices, which wouldotherwise be closed for the National Holiday of the Thanksgiving weekend; the second deadlinewas Monday morning at 9a.m.

B. THE FLORIDA COURT RULED NARROWLY, CONSISTENT WITH THE UNITEDSTATES CONSTITUTION AND THE VOTING RIGHTS ACT OF 1965 AND THEOBLIGATION OF COURTS TO RESOLVE POST-ELECTION DISPUTES

To the extent that errors in the Florida electoral process impinge on the franchise withinand without the State, the Florida Supreme Court surgically attempted to reconstruct the brokenfragments of the statute in order revive an otherwise lifeless will of the people as it was laidbefore its bar.

To rectify this situation requires either a statewide recount with appropriate guidelines setforth by this Court, or a new election under new laws. The Florida Supreme Court held that theright to vote is the paramount right and therefore read savings measures into the text of theotherwise unworkable statute that governed the Florida election for the 43rd President of theUnited States. The alternative would have required the voters to hold a new election without clearrules to govern the election,.

Absent a special session of the Florida legislature to craft such rules six or more daysprior to the election itself. The Florida Supreme Court articulated again the principle oftenexpressed by this Court, that the primacy of voting and respect for the exercise of the franchise isa fundamental right to all citizens. The court reaffirmed that voting is the paramount right of thepeople; one that could not be supplanted or transgressed by hyper technical attention to deadlines,if the price of those deadlines cost voters their rights. Marbury v. Madison 1 Cranch 137, 2 L.Ed.60 (1803), "It is emphatically the province and duty of the judicial department n to say what thelaw is".

Petitioner has erroneously claimed "By retroactively changing the law in Florida through judicialintervention, the Supreme Court of Florida's decision preventing the Secretary of State of Floridafrom exercising her legislatively conferred authority to perform the act of certification that wouldcomplete the electoral process in Florida has added to that angst and has strayed from establishedfederal constitutional and statutory law."

If anything, however, the Florida court ruled too narrowly and with too little retrospectiveoversight, leaving to the discretion of the counties the methods for recounting votes and a too-small window of opportunity for recounting by hand the votes in densely populated counties, wholater abandoned their recount efforts. To the extent that the Petitioner complains there are nostandards, the court wisely attempted to defer to counties to allow them their traditional freelychosen methods, in a reading of the very clause that Petitioner cites for the argument that theStates shall choose electors "in such Manner as the Legislature thereof may direct". In essence,the Petitioner's suggested reading of the United States Constitution is counter-intuitive;restraining the counties from determining the methods of tallying the ballots from their ownvoters while giving the legislature unbridled discretion regarding the selection of electors. Neitherof these approaches can be tolerated if they fail to pass constitutional muster under the strictscrutiny afforded the right to vote.

Petitioner continues: "The manual recount underway in certain Florida counties isunconstitutional because it is being conducted in the absence of meaningful objective standards."A recount cannot, by its nature be, unconstitutional. The methods written by the legislature toachieve the tabulation and recording of votes can, however, be so flawed that the system isunconstitutional as applied in a given case. We believe that in this case, the Florida law has beenapplied in a manner that is unconstitutional and must be rectified or in the alternative, if it isindeed beyond repair, then new rules must be set forth by this Court or the Florida legislature in atimely manner with a new election by Florida voters for the 43rd President of the United States.

The lack of adequate timetables in the Florida Electoral law for candidates to request recounts,and for recounts to be completed; the ambiguity within the Florida statute that did not reveal aspecific preference for hand counted-ballots or machine counted ballots for the purposes ofrecounting; and the absence of any clarifying instruction on a statewide basis to determine howelectoral ballots are to be counted are not necessarily fatal to the statute in itself if any one ofthese problems could be viewed in isolation.

The totality of these peculiar circumstances, however, makes it so very difficult to sort out theprecise nature of the problems that questions can be answered and problems can be corrected.There remain the lingering doubts raised by improperly drafted ballots that were not legible tovoters; improper tallying by a hodgepodge of methods with so-called "standardless" procedures;(See Petitioner's Brief, in several instances) defects in the availability and accessibility of votingplaces themselves. Media accounts suggest that these irregularities also have occurred in greatproportion in areas inhabited by blacks, minorities and certain ethnic groups, whose voting rightsenjoy special protection under the Fourteenth and Fifteenth Amendments of the United StatesConstitution, as implemented Congress in the Voting Rights Act and upheld by this Court inprevious cases. The aim of the Voting Rights Act is to prevent political bodies from implementingelection systems or practices which Act, whether intentionally or not, to minimize, cancel ordilute the voting strength or political effectiveness of minority groups. (League of United LatinAmerican Citizens (LULAC) v. North East Independent School Dist., W.D.Tex.1995, 903F.Supp. 1071.) Such discriminatory consequences, whether intended or not, would also raiseconcern that the entire election was tainted by potential violations of the Voting Rights Act.

Thus, the post-election "judicial limitations" in this case that concern the Petitioner weredesigned to foster, rather than burden, constitutional due process. The Florida Supreme Courtcarefully reasoned in order to save a defective election process, in order to avoid the veryconfusion that confronts our nation today.

In this regard, the Florida Supreme Court should not be reversed for having been too deferentialto a statute that was in fact defective. The election laws, and not the written opinion of thereviewing court that attempted to mend the statutes errors, was inartfully drafted and has therebyobfuscated the will of the people. The choice before this Court, therefore, is whether to furtherrectify the errors in the statute by reading into it new deadlines that will reasonably allow time torecount by hand or otherwise all of the ballots of all the voters in the State of Florida, or in thealternative, declare the statute and the election that was conducted pursuant to it invalid, therebyrequiring a new election to be held in the State of Florida to determine who will be the winner ofthe 43rd Presidential election in Florida.

C. VOTING RIGHTS OF ALL VOTERS ARE IMPACTED BY THESECIRCUMSTANCES REQUIRING A COMPLETE RECOUNT OF ALL BALLOTS OR ANEW ELECTION

Under the Civil Rights Act 42 USC 1983 and the Voting Rights Act 42 USC 1973 and theFourteenth Amendment of the US Constitution , The right of the people to vote and to expresstheir political will in elections by exercising their franchise is sacrosanct under the USConstitution and is protected by the Voting Rights Act as upheld in South Carolina v Katzenbach01, 314-15 (1966).As evinced by the pending or withdrawn litigation cited above, theseallegations filed in good faith by citizens are only a small fraction of the totality of theirregularities and improprieties within the voting process as it was conducted in Florida in theNovember 2000 Presidential election.

The U.S. Constitution, Amendment XIV: Section 1 clearly protects the franchise of all citizensequally regardless of state of residence: "All persons born or naturalized in the United States, andsubject to the jurisdiction thereof, are citizens of the United States and of the state wherein theyreside. No state shall make or enforce any law which shall abridge the privileges or immunities ofcitizens of the United State; nor shall any state deprive any person of life, liberty, or prosperitywithout due process of law; nor deny to any person within its jurisdiction the equal protection ofthe law."

Any effort to undermine the integrity of this vital social contract that binds the States to eachother by allowing a State to fall below the necessary minimum protections of the right to vote forits citizens in a National Presidential election undermines the integrity of all of the states andtaints the valued franchise of citizens in those states that have followed the agreed upon dueprocess standards. Such protections are reinforced by the Voting Rights Act (42 USC 1973)(quote) 42U.S.C.A. 1973 UNITED STATES CODE ANNOTATED TITLE 42. THE PUBLICHEALTH AND WELFARE CHAPTER 20--ELECTIVE FRANCHISE SUBCHAPTER I-A--ENFORCEMENT OF VOTING RIGHTS "" 1973. Denial or abridgement of right to vote onaccount of race or color through voting qualifications or prerequisites; establishment of violation

(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall beimposed or applied by any State or political subdivision in a manner which results in a denial orabridgement of the right of any citizen of the United States to vote on account of race or color, orin contravention of the guarantees set forth in section 1973b(f)(2) of this title, as provided insubsection (b) of this section.

(b) A violation of subsection (a) of this section is established if, based on the totality ofcircumstances, it is shown that the political processes leading to nomination or election in theState or political subdivision are not equally open to participation by members of a class ofcitizens protected by subsection (a) of this section in that its members have less opportunity thanother members of the electorate to participate in the political process and to elect representativesof their choice.

In order for the national election of the 43rd President of the United States to be viewed as fair andimpartial in the eyes of all USA voters who participate in that process, as well as the world orother third party objective observers it is imperative these federal standards, set forth in theVoting Rights Act as upheld by this Court, be met. When use of the law is popularly viewed asunfair and people believe that something happened that was improper, such that voters feelcheated by the process itself in Florida, (whether or not there has been any underlying fraud orcorruption in the process itself,) impurity of the voice of the people thereby undermines the voiceof all franchised voters who voted in the same national election for the US President.

These types of irregularities bespeak an underlying corruption in the process, whether or not anysuch improprieties have occurred and resemble more of the civil and political rights issues seen inforeign nations than the USA's proud democratic history. The harms caused by that appearance ofimpropriety which is repugnant to our democratic system of governance must be remedied. Insuch a case the sole valid remedy must be to remove the taint upon the people's franchise bycalling for a re-election whereby the voters of Florida whose voice has been overtaken by theexisting system will have a new opportunity to vote for the President and Vice President of theUnited States.

QUESTION 2:

Whether the state court's decision, which cannot be reconciled with state statutes enacted beforethe election was held, is inconsistent with Article II, Section 1, clause 2 of the Constitution, whichprovides that electors shall be appointed by each State "in such Manner as the Legislature thereofmay direct."

A. THE UNITED STATES CONSTITUTION ALLOWS LEEWEAY TO THE STATESBUT DOES NOT ALLOW OR ENCOURAGE LEGISLATORS TO SUBSTITUTE THEIRWISHES OR DESIRES FOR THE WILL OF THE PEOPLE.

Ironically, the answer to Petitioner's seemingly obvious question in this case is one of firstimpression without precedent before this Court. Thus, we must look to the logic of the plainmeaning of the words in their context, as a part of the totality of the precepts that create aframework for democratic republican governance, in order to guide the use of these words.Although States are left to fashion their methods of determining electors as their representatives,it is nonetheless dictated by logic as well as constitutional principles that such electors must votein a manner that is consistent with the will of the majority and that any selection before all voteshave been counted, or any selection based on an arbitrary portion of the votes to be tallied (but notall the ballots cast that have been tallied) is a usurpation of the legitimate power of the people asexpressed through exercising their franchise. It is unlikely, if not inconceivable, that the USConstitution could be read to allow Florida legislators (or the legislators of any other State) tosimply select a Presidential candidate of their choice who has not been chosen by the majority ofthe voters in their state. The full faith and credit clause Article IV of the US Constitution,demands that such appointment of electors be achieved without abridging the rights of any votersin order to maintain the integrity of the votes of citizens from other states. Marbury v. Madison 1Cranch 137, 2 L.Ed. 60 (1803), instructs us that in such situations, " The constitution is eithersuperior, paramount law, unchangeable by ordinary means, or it is on a level with ordinarylegislative acts, and like other acts, is alterable when the legislature shall please to alter it. If theformer part of the alternative be true, then a legislative act contrary to the constitution is not law:if the latter part be true, then written constitutions are absurd attempts, on the part of the people,to limit a power in its own nature illimitable".

The US Constitution grants States leeway and discretion in selecting their electors, but onlyinsofar as the selection is consistent with the fundamental precepts of democracy. The choicemust not be anarchistic or autocratic, but consistent with democratic principles, guided by andreflecting the will of the majority of the voters in that State. Furthermore, the methods chosen bysaid legislatures must comport with the parameters of democratic governance set forth in theUnited states Constitution and must exhibit mutual respect for the other States, consistent withArticle IV's commitment by the States to accord each other full faith and credit. Thus, the Stateshave reserved the right to make certain discretionary choices regarding the methodology forselecting electors, but the candidate for whom those electors cast their ballots must be chosen bydemocratic means and must be consistent with the wishes of the majority of voters in the State.

B. THE WILL OF THE PEOPLE OF FLORIDA IS PRESENTLY UNKNOWN

It would be unconscionable, as well as unconstitutional for the legislature to disregard the will ofthe people by selecting a candidate that the people would not have elected. So too, in an electionso close that the difference between the votes separating the certified winner and the loser issmaller than the statistical margin of error for counting, it is unclear whether the will of the peoplecan be discerned or clearly heard. Therefore, the Florida legislature cannot proceed to selectelectors if either of the two following consequences have arisen: (1) the underlying Florida lawthat governed the election itself was based on an unconstitutional statute or (2) the votes from theState have not been counted properly or all votes have not been tallied, regardless of thecertifications by election officials.

The consequences of finding otherwise, would be the ability of a state Legislature to pick anyelectors they wish, without regard to the total vote of the people, thereby breaking the full faithand credit clause of the US Constitution.

QUESTION 3

What would be the consequences of this Court's finding that the decision of the Supreme Court ofFlorida does not comply with 3U.S.C Sec. 5?

UNCONSTITUTIONAL ELECTION LAWS REQUIRE REMEDIES SUCH ASRECOUNT OR A NEW ELECTION

If Florida is found to have breached the social contract between the states that implicitly butinevitably is a fundamental part of the respect accorded each and every State of the United Statesto the other States, breaking the obligation to grant each State "full faith and credit" under ArticleIV of the US Constitution, immediate and deliberate efforts must be made to repair the breach.Otherwise, such a breach of the social contract by Florida would taint the democratic process ofthe national election, thereby disenfranchising each citizen in the United States who voted in theelection.

The simplest and most trustworthy method for correcting these defects for the immediatequestion at bar concerning the election of the 43rd President of the United States of America:either recount all the votes in the State of Florida with oversight from federal authorities, or hold anew election with federal oversight pursuant to the precepts of the Voting Rights Act 42 US.C.1973. Judicial oversight in this regard, despite the disparaging characterization used byPetitioner, is a necessary and appropriate use of the power of Judicial Review as it appears as agloss in the text of Article III of the United States Constitution, and is commonplace when thereare election problems to be sorted out. In the alternative, we believe the People of this Nation willbe better satisfied if all the discomfort of the tainted Florida election can be removed by callingfor a new direct ballot election in the State of Florida.

CONCLUSION:
UNCONSTITUTIONAL LAWS CANNOT BE SUPPLANTED BY THE ARBITRARYSELECTION OF ELECTORS BY LEGISLATORS AND REQUIRE A FULL RECOUNTOF ALL BALLOTS OR A NEW ELECTION

The full faith and credit clause in Article IV of the US Constitution requires that states extend thesame rights to all citizens of the United States and to express the same respect for all of the lawsof the separate states equally. As Justice Marshall stated in McCulloch v Maryland 17 US (4Wheat.) 316, 421 (1819), "Let the end be legitimate, let it be within the scope of the constitution,and all means which are appropriate, which are plainly adapted to this end, which are notprohibited but consistent with the letter and spirit of the constitution are constitutional".

Due to the exceptionally small margin which is within the margin of error of the machinesthemselves, a hand count of all ballots in Florida essential to preserving the franchise of everycitizen who has voted in this nations''November 2000 election. It is inconceivable that a manualhand count, although cumbersome and time consuming, can be so long in its duration to amountto a violation of due process rendering it unconstitutional. In the event that this Court finds suchdelays would harm the Republic without regard to Constitutional issues, it is respectfullyrequested that there be a new vote in the State of Florida, following, if necessary, laws that maybe written by its State legislature to correct defects in existing Florida State Election laws, or suchother remedies as this Court may deem appropriate. We nonetheless most respectfully and mostvehemently pray that this Court should make every effort to include the votes of all Floridavoters, whether by hand count or by a new voter election, so that democratic process will goforward and that the franchise of all voters shall be preserved.

PLEASE NOTE: TWO BRIEFS WRITTEN BY CITIZENS ALONE WILL APPEAR ASEXHIBIT ONE AND EXHIBIT TWO IN THE FINAL VERSION OF THIS DOCUMENT

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