US Supreme Court Briefs

No. 00-836 IN THE Supreme Court of the United States GEORGE W. BUSH,                                Petitioner, v. PALM BEACH COUNTY CANVASSING BOARD, ET AL.,                                Respondents. On Petition For A Writ Of Certiorari To The Supreme Court Of Florida REPLY BRIEF FOR PETITIONER MICHAEL A. CARVIN           THEODORE B. OLSON             COOPER, CARVIN &              Counsel of Record             ROSENTHAL, P.L.L.C.       DOUGLAS R. COX                1500 K Street, N.W.         THOMAS G. HUNGAR              Suite 200                   MARK A. PERRY                Washington, D.C. 20005      GIBSON, DUNN & CRUTCHER LLP   (202) 220-9600              1050 Connecticut Avenue, N.W.                             Washington, D.C. 20036        BARRY RICHARD               (202) 955-8500                GREENBERG TRAURIG, P.A.                                   101 East College Avenue     BENJAMIN L. GINSBERG          Post Office Drawer 1838     PATTON BOGGS LLP              Tallahassee, FL 32302       2550 M Street, N.W.           (850) 222-6891              Washington, D.C. 20037                                    (202) 457-6000                [Additional counsel listed on inside front cover]Counsel for PetitionerGEORGE J. TERWILLIGER III                                TIMOTHY E. FLANIGAN                                      MARCOS D. JIMÉNEZ                                        WHITE & CASE LLP                                         First Union Financial Center                             200 South Biscayne Blvd.                                 Miami, Florida 33131                                     (305) 371-2700                                           

TABLE OF CONTENTS

Page I. This Court's Immediate Review Of The Federal Questions Squarely Presented In This Case Is Necessary And Appropriate ..........1 II. Review Is Warranted In This Case Because The Florida Supreme Court Disregarded Federal Law As Enunciated In The Due Process Clause And 3 U.S.C. § 5 .............................................4 III. Review Is Warranted Because The Supreme Court of Florida's Decision Is In Contravention of Article II Of The Constitution.....................................7 CONCLUSION ...........................................8

TABLE OF AUTHORITIES

CASES Page(s) Anderson v. Celebrezze, 460 U.S. 780 (1983) ........1,2 Brinkerhoff-Faris Trust & Sav. Co. v. Hill, 281 U.S. 673 (1930).......................................3 Buckley v. Valeo, 424 U.S. 1 (1976)...................2 Burroughs v. United States, 290 U.S. 534, 544-48 (1934) .............................................2,8 Duncan v. Poythress, 657 F.2d 691 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012 (1982) ...............................................8 First Alabama Bank v. Parsons Steel, Inc., 825 F.2d 1475, (11th Cir. 1987)...........................3 Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992).......................................9 Griffin v. Burns, 570 F.2d 1065 (1st Cir. 1978).....8,9 Kirby v. State, 765 So. 2d 723 (Fla. Dist. Ct. App. 1999).................................................3 Lindsey v. Washington, 301 U.S. 397 (1937)............4 McPherson v. Blacker, 146 U.S. 1 (1892)...............7 New York v. United States, 505 U.S. 144 (1992)........4 Printz v. United States, 521 U.S. 898 (1997)..........4 Saunders v. Shaw, 244 U.S. 317 (1917) ................3 Williams v. Rhodes, 393 U.S. 23 (1968)................2CONSTITUTION AND STATUTES U.S. CONST. art. II, § 1............................1,7 3 U.S.C. § 5 ....................................passim 3 U.S.C. §§ 1-15 .....................................2 42 U.S.C. § 1983.....................................12 OTHER AUTHORITIES 18 CONG. REC. 47 (1886) ..............................6

REPLY BRIEF FOR PETITIONER

The brief in opposition filed by the Florida Demo- cratic Party (the "FDP") is long on rhetoric, but it con- tains no effective response to petitioner's compelling showing that certiorari is warranted in this case. I. This Court's Immediate Review Of The Fed- eral Questions Squarely Presented In This Case Is Necessary And Appropriate The FDP cannot and does not dispute that the ex- ceedingly important nature of this case provides a pow- erful justification for review by this Court. Opp. 3. In- deed, even the courts below emphasized the unique im- portance and significance of this proceeding, character- izing the case as one of "great public importance requir- ing immediate resolution" and "extraordinary impor- tance." Pet. App. 2a, 37a. Nonetheless, the FDP asserts (Opp. 2-3, 14-15) that principles of federalism and pub- lic policy militate against review. The FDP's assertions are without merit. The FDP's repeated reliance on principles of "feder- alism" is particularly misplaced. This Court has repeat- edly recognized the powerful federal interest in the se- lection of presidential electors. In Anderson v. Cele- brezze, 460 U.S. 780, 794-95 (1983), for example, the Court held that "in the context of a Presidential election, state-imposed restrictions implicate a uniquely important national interest." Thus, the federal Constitution and congressional enactments make clear that state laws re- garding the appointment of presidential electors are a matter of federal concern. See, e.g., U.S. CONST. art. II, § 1, cl. 2; 3 U.S.C. § 5. These provisions directly refute the FDP's erroneous assertion that petitioner is "at- tempt[ing] to federalize a state law dispute." Opp. 15. Indeed, the Constitution and federal statutes have al- ready "federalized" numerous matters relating to the ap- pointment of presidential electors, including those at is-sue here. See, e.g., 3 U.S.C. §§ 1-15; Anderson, 460 U.S. 780 (1983); Buckley v. Valeo, 424 U.S. 1, 14 n.16 (1976) ("Th[is] Court has also recognized broad con- gressional power to legislate in connection with the elec- tions of the President and Vice President."); Williams v. Rhodes, 393 U.S. 23, 29 (1968); Burroughs v. United States, 290 U.S. 534, 544-48 (1934); see id. at 547 ("The power of Congress to protect the election of President and Vice President from corruption being clear, the choice of means to that end presents a question primarily addressed to the judgment of Congress."); see also Ex parte Yarbrough, 110 U.S. 651 (1884). Title 3, § 5 of the United States Code plainly recog- nizes a federal interest in the manner in which States re- solve "controvers[ies] or contest[s] concerning the ap- pointment of" presidential electors. This statute requires States to resolve any disputes over the appointment of electors by exclusive reference to state laws "enacted prior to" election day. 3 U.S.C. § 5. The decision of the Supreme Court of Florida violates this federal mandate because it attempts to promulgate a new rule of law to govern the present controversy over the appointment of Florida's electors. As a result, and pursuant to federal law, the decision below is a nullity with respect to the November 7, 2000, presidential election. No principle of federalism or comity precludes this Court from grant- ing certiorari in order to enforce that federal statutory mandate in this case.1 1 The FDP errs in suggesting (Opp. 3 n.1) that petitioner's fed- eral claims were not properly preserved below. The appendix to the petition reproduces the relevant excerpts from petitioner's brief below (Pet. App. 62a-64a), in which petitioner clearly and ex- pressly raised the federal questions at issue here. See also Pet. 9. The FDP's suggestion that petitioner was obligated to raise these claims in the trial court is mistaken. Under Florida law, petitioner was entitled to defend the judgment on any ground supported in [Footnote continued on next page] Thus, the FDP is simply wrong in suggesting (Opp. 2) that the States possess "plenary and exclusive power" over all aspects of the selection of presidential electors. Indeed, this Court rejected that very argument in Wil- liams v. Rhodes: "The State also contends that it has ab- solute power to put any burdens it pleases on the selec- tion of electors because of the First Section of the Sec- ond Article of the Constitution .. . . But the Constitu- tion is filled with provisions that grant Congress or the States specific power to legislate in certain areas; these granted powers are always subject to the limitation that they may not be exercised in a way that violates other specific provisions of the Constitution." 393 U.S.at 28- 29. The FDP's attempt to immunize the decision below from review is baseless. Equally without merit is the FDP's suggestion (Opp. 15 & n.4) that this Court's enforcement of 3 U.S.C. § 5 in this case would violate the Tenth Amendment. In- deed, the very cases relied upon by the FDP expressly reject the argument advanced by the FDP in its brief, and instead reaffirm the self-evident proposition that the Tenth Amendment does not limit the power of federal courts to compel state and local officials to comply with [Footnote continued from previous page] the record. See Firestone v. Firestone, 263 So. 2d 223, 225 (Fla. 1972) (where district court holding was based on erroneous find- ings, "the judgment may yet be affirmed where appellate review discloses other theories to support it"); Kirby v. State, 765 So. 2d 723, 725 n.3 (Fla. Dist. Ct. App. 1999) ("As appellee, it is open to the state to argue for affirmance on any ground the record will support."). Moreover, because the violation of federal law at issue here resulted from the decision of the state supreme court, peti- tioner had no obligation to raise that federal law claim in an antic i- patory manner in the trial court. Saunders v. Shaw, 244 U.S. 317, 320 (1917); Brinkerhoff-Faris Trust & Sav. Co. v. Hill, 281 U.S. 673, 677-78 (1930). federal law. Printz v. United States, 521 U.S. 898, 931 n.16 (1997); New York v. United States, 505 U.S. 144, 179 (1992) ("the power of federal courts to enforce fed- eral law thus presupposes some authority to order state officials to comply"). II. Review Is Warranted In This Case Because The Florida Supreme Court Disregarded Federal Law As Enunciated In The Due Process Clause And 3 U.S.C. § 5 Contrary to the FDP's assertions (Opp. 2, 15, 17- 18), this case involves much more than a "state law dis- pute," and instead involves substantial violations of due process and 3 U.S.C. § 5. The FDP's argument rests on the baseless assumption that this Court is absolutely pre- cluded from applying federal law standards to weigh the validity of state court decisions purporting to apply state law. The federal courts are frequently required to exam- ine state law in determining whether a federal statutory or constitutional provision has been violated, and in such cases the federal courts are not bound by the state courts' characterizations of the federal issue. For exam- ple, in applying the Ex Post Facto Clause, this Court has held that the question whether state law has changed in a manner that impermissibly increases the penalties for past conduct is a question of federal, not state, law, even though resolution of that question requires a compara- tive analysis of state law. Lindsey v. Washington, 301 U.S. 397, 400 (1937) ("[W]hether the [state-law] stan- dards of punishment set up before and after the commis- sion of an offense differ, and whether the later standard is more onerous than the earlier within the meaning of the constitutional prohibition, are federal questions which this Court will determine for itself."). The ques- tion whether a State is attempting to resolve controve r- sies over the appointment of electors by reference to "laws enacted prior to the day fixed for the appoint-ment," or is instead attempting to impose new rules of law retroactively in violation of 3 U.S.C. § 5, is also ul- timately a question of federal law. The FDP appears to contend (Opp. 17) that because the state supreme court's decision discusses Florida laws that existed prior to election day, the court's decision could not have violated 3 U.S.C. § 5. That contention is meritless. Nothing in Florida law prior to November 7 revealed that the seven-day period for certification of election results was in reality a 19-day period, or that the Secretary of State's broad power to enforce the statutory deadline and reject untimely election returns was instead almost nonexistent. Whatever the merit of the Florida Supreme Court's interpretation as a matter of state law, it is clear that for purposes of federal law the decision below announces a new and previously nonexistent legal standard applicable to disputes over the appointment of presidential electors.2 Even the FDP does not dispute that a change in the law took place. It simply claims that the Florida Su- preme Court's decision does not "change the rules' in any way that implicates federal law." Opp. 17 (empha- sis added). Under 3 U.S.C. § 5, however, any post- election change in the rules governing the appointment of presidential electors implicates--and violates-- federal law. The FDP also errs in contending that so long as the retroactive change in the law was judicially, as opposed 2 The FDP asserts that the 5:00 p.m., November 14 deadline was "set by the Secretary of State." Opp. 9. That deadline, however, was established by the Florida Legislature in §§ 102.111 and 102.112 of the Florida Statutes. The only deadline "set" by a body other than the legislature in this matter is the arbitrary 5:00 p.m., November 26 deadline that the Florida Supreme Court chose to es- tablish in its decision below.to legislatively, imposed, 3 U.S.C. § 5 is satisfied. See Opp. 16. The FDP argues in effect that the Florida Leg- islature granted to the state courts the authority to de- termine the proper way in which to resolve controversies concerning the appointment of Florida's presidential electors. Under the FDP's theory, no violation of 3 U.S.C. § 5 would occur even if the judicial tribunal de- viates from the law as it was established prior to the election, so long as the legislature had granted the courts jurisdiction to resolve such controversies. This argu- ment is without merit. To begin with, such an interpre- tation of 3 U.S.C. § 5 would render it a virtual nullity. If state legislatures could simply convey authority to a chosen tribunal to create new rules to govern disputes over the appointment of electors, States could easily avoid the limitations placed on them by 3 U.S.C. § 5. Such a self-defeating construction is also at odds with its legislative history. As Representative Cooper explained in the congressional debate on this statute, "these contests should be decided under and by virtue of laws made prior to the exigency under which they arose." 18 CONG. REC. 47 (1886) (remarks of Rep. Cooper). The clear purpose of 3 U.S.C. § 5 is to prevent States from manipulating their laws after the initial elec- tion results are known, regardless of which branch of government is responsible for that change. Indeed, by requiring that the rules governing election disputes be established by "enact[ment]" prior to the election, Con- gress made clear that state legislatures, not the courts, were to establish these rules of law. That approach is entirely in keeping with Congress's desire to avoid ret- roactive changes that could affect the results of elec- tions. To interpret 3 U.S.C. § 5 in the contrary manner suggested by the FDP would render its protections es- sentially meaningless.III. Review Is Warranted Because The Supreme Court of Florida's Decision Is In Contraven- tion of Article II Of The Constitution As discussed in the petition, Article II of the Consti- tution reserves to the state legislatures, not the state courts, the authority to determine the manner in which to appoint presidential electors. See U.S. CONST. art. II, § 1, cl. 2. The FDP asserts that because this provision delegates authority to the States, disputes over the ap- pointment of electors must rest exclusively on state law, and thus are not subject to federal court review. See Opp. 18. While it is true that the appointment of presi- dential electors in each State will turn on the laws of the individual States, the suggestion that federal courts have no role in this area is demonstrably incorrect. Where a State's judiciary intrudes upon this constitutional grant of authority to the State legislature by eviscerating a state statutory rule applicable to electoral disputes, fed- eral court review is plainly appropriate. See McPherson v. Blacker, 146 U.S. 1, 25-26 (1892) ("the words in such manner as the Legislature thereof may direct' . . . operat[e] as a limitation upon the State in respect of any attempt to circumscribe the legislative power") (empha- sis added).3 3 For all the reasons set forth in petitioner's reply brief in case number 00-837, the FDP's arguments regarding petitioner's fed- eral constitutional claims under the Equal Protection Clause, the Due Process Clause, and the First Amendment are equally without merit, and this Court's review of those claims is warranted.

CONCLUSION

As this Court recognized in Burroughs v. United States, 290 U.S. 534, 545 (1934), "[t]he President is vested with the executive power of the nation. The im- portance of his election and the vital character of its re- lationship to and effect upon the we lfare and safety of the whole people cannot be too strongly stated." For all the reasons set forth above and in the peti- tion, the petition for a writ of certiorari should be granted. Respectfully submitted. MICHAEL A. CARVIN THEODORE B. OLSON COOPER, CARVIN & Counsel of Record ROSENTHAL, P.L.L.C. DOUGLAS R. COX 1500 K Street, N.W. THOMAS G. HUNGAR Suite 200 MARK A. PERRY Washington, D.C. 20005 GIBSON, DUNN & CRUTCHER LLP (202) 220-9600 1050 Connecticut Avenue, N.W. Washington, D.C. 20036 BARRY RICHARD (202) 955-8500 GREENBERG TRAURIG, P.A. 101 East College Avenue BENJAMIN L. GINSBERG Post Office Drawer 1838 PATTON BOGGS LLP Tallahassee, FL 32302 2550 M Street, N.W. (850) 222-6891 Washington, D.C. 20037 (202) 457-6000 GEORGE J. TERWILLIGER III TIMOTHY E. FLANIGAN MARCOS D. JIMÉNEZ WHITE & CASE LLP First Union Financial Center 200 South Biscayne Blvd. Miami, Florida 33131 (305) 371-2700

Counsel for Petitioner

November 24, 2000

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