US Supreme Court Briefs

No. 00-949
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IN THE
Supreme Court of the United States
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GEORGE W. BUSH AND RICHARD CHENEY,
Petitioners,

v.

ALBERT GORE, JR., et al.,
Respondents.
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On Writ Of Certiorari
To The Supreme Court Of Florida
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BRIEF FOR PETITIONERS
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MICHAEL A. CARVIN
COOPER, CARVIN &
ROSENTHAL, P.L.L.C.
1500 K Street, N.W.
Suite 200
Washington, D.C. 20005
(202) 220-9600

BARRY RICHARD
GREENBERG TRAURIG, P.A.
101 East College Avenue
Post Office Drawer 1838
Tallahassee, FL 32302
(850) 222-6891
THEODORE B. OLSON
Counsel of Record
DOUGLAS R. COX
THOMAS G. HUNGAR
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036
(202) 955-8500

BENJAMIN L. GINSBERG
PATTON BOGGS LLP
2550 M Street, N.W.
Washington, D.C. 20037
(202) 457-6000
[Additional counsel listed on inside front cover]

Counsel for Petitioners
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GEORGE J. TERWILLIGER III
TIMOTHY E. FLANIGAN
WHITE & CASE LLP
601 13th Street, N.W.
Washington, D.C. 20005
(202) 626-3600
WILLIAM K. KELLEY
Notre Dame Law School
Notre Dame, IN 46556

JOHN F. MANNING
435 W. 116th Street
New York, N.Y. 10027

BRADFORD R. CLARK
2000 H Street, N.W.
Washington, D.C. 20052



1. Whether the Florida Supreme Court erred in es-tablishing new standards for resolving presidential elec-tion contests that conflict with legislative enactmentsand thereby violate Article II, Section 1, Clause 2 of theUnited States Constitution, which provides that electorsshall be appointed by each State "in such Manner as theLegislature thereof may direct."2. Whether the Florida Supreme Court erred in es-tablishing post-election, judicially created standards thatthreaten to overturn the certified results of the electionfor President in the State of Florida and that fail to com-ply with the requirements of 3 U.S.C. §5, which givesconclusive effect to state court determinations only ifthose determinations are made "pursuant to" "laws en-acted prior to" election day.3. Whether the use of arbitrary, standardless and se-lective manual recounts to determine the results of apresidential election, including post-election, judiciallycreated selective and capricious recount procedures thatvary both across counties and within counties in theState of Florida, violates the Equal Protection or DueProcess Clauses of the Fourteenth Amendment.PARTIES TO THE PROCEEDINGThe following individuals and entities were partiesto the proceeding in the court below:Governor George W. Bush, as Nominee of the Re-publican Party of the United States for President of theUnited States; Richard Cheney, as Nominee of the Re-publican Party of the United States for Vice President ofthe United States; Albert Gore, Jr., as Nominee of theDemocratic Party of the United States for President ofthe United States; Joseph I. Lieberman, as Nominee ofthe Democratic Party of the United States for VicePresident of the United States; Katherine Harris, as Sec-retary of State, State of Florida; Katherine Harris, BobCrawford, and Laurence C. Roberts, individually and asmembers of the Florida Elections Canvassing Commis-sion; the Miami-Dade County Canvassing Board; Law-rence D. King, Myriam Lehr and David C. Leahy asmembers of the Miami-Dade Canvassing Board; DavidLeahy individually and as Supervisor of Elections; theNassau County Canvassing Board; Robert E. Williams,Shirley N. King and David Howard (or, in the alterna-tive Marianne P. Marshall), as members of the NassauCounty Canvassing Board; Shirley N. King individuallyand as Supervisor of Elections; the Palm Beach CountyCanvassing Board; Theresa LePore, Charles E. Burtonand Carol Roberts, as members of the Palm Beach Can-vassing Board; Theresa LePore individually and as Su-pervisor of Elections; and Stephen Cruce, Teresa Cruce,Terry Kelly, Jeanette K. Seymour, Matt Butler, John E.Thrasher, Glenda Carr, Lonnette Harrell, Terry Richard-son, Gary H. Shuler, Keith Temple, and Mark A. Tho-mas, as Intervenors.TABLE OF CONTENTS QUESTIONS PRESENTED PARTIES TO THE PROCEEDING OPINIONS BELOW JURISDICTION CONSTITUTIONAL PROVISIONS ANDSTATUTES INVOLVED STATEMENT OF THE CASE
  1. Florida's Election Laws As Of November 7
  2. State Court Proceedings Leading To Extension Of The Certification Deadline
  3. This Court's Prior Decision
  4. The Election Contest
  5. The Florida Supreme Court's Decision
SUMMARY OF ARGUMENT ARGUMENT
  1. The Decision Of The Florida SupremeCourt Violates Article II Of The Constitution
    1. The Decision Below Overrides Numerous Provisions Of Florida Election Law
    2. Article II Precludes The Florida Supreme Court's Exercise Of Jurisdiction
    3. The Florida Supreme Court's Decision Is Improperly Predicated On Its Now-Vacated Opinion Of November 21, Perpetuating Its Article II Errors
  2. The Florida Supreme Court's DecisionConflicts With 3 U.S.C. § 5
  3. The Florida Supreme Court's DecisionViolates Equal Protection And Due Process Guarantees
    1. Equal Protection
    2. Due Process
CONCLUSIONBRIEF FOR PETITIONERSOn December 4, 2000, this Court unanimously va-cated the Florida Supreme Court's November 21 judicialrevision of Florida's election laws. Bush v. Palm BeachCounty Canvassing Board, No. 00-836 (U.S. Dec. 4,2000). The Court remanded for further proceedings notinconsistent with its concerns regarding the Floridacourt's awareness of and compliance with federal consti-tutional and statutory constraints on the authority of theFlorida judiciary to revise the Florida Legislature'smethod for appointing presidential electors. Id.Just four days later, without a single reference tothis Court's December 4 decision, the majority of theFlorida Supreme Court announced sweeping and novelprocedures for recounting selected Florida ballots to de-termine anew the winner of the November 7 presidentialelection in Florida. This latest manual recount regimewould be conducted according to varying--and unspeci-fied--standards, by officials unspecified in Florida'selection law, and according to an ambiguous and appar-ently unknowable timetable. The Florida court's whole-sale revision of Florida statutory law, adopted in part toaddress the problems flowing from its earlier abandon-ment of the system crafted by the Florida Legislature,ignores the obviously intertwined nature of the protestand contest provisions and overrides numerous legisla-tive choices embodied in the Florida Election Code.The decision below acknowledges, but fails to ad-here to, Article II, § 1, cl. 2 of the federal Constitution,which vests plenary and exclusive authority in the Flor-ida Legislature to determine the manner of selectingFlorida's electors. And, while the Florida court statedthat it was "cognizant" of 3 U.S.C. §5, which creates a"safe harbor" allowing a State to afford conclusive ef-fect to its choice of presidential electors, it completelyrewrote the Florida Legislature's pre-election laws de-signed to take advantage of that provision. The court'snewly devised scheme for re-tabulating votes is plainlyarbitrary, capricious, unequal, and standardless.The court below not only failed to acknowledge thatits earlier decision had been vacated, it openly relied onmanual recounts that had occurred only because of thatopinion as a predicate for changing the Secretary ofState's certification of the election and as the foundationfor its state-wide recount plan. It compounded thatmanifest overreaching by overriding its own "equitable"deadlines, created two weeks ago, as well as the legisla-ture's carefully wrought timetable.The Florida court's decision imposes its decree oncounties that were never part of the proceedings below,overrides statutory authority explicitly vested in thestate's chief election officer and local canvassingboards, designates new officials to supervise in place ofthe officials specified in Florida's election code to dis-charge that function, establishes a standard for the insti-gation of recounts not recognizable under Florida law,requires manual recounts of "under-voted" but not"over-voted" ballots, and mandates inconsistent recountswithin certain counties, in violation of fundamentalprinciples of equal protection and due process.The unconstitutional flaws in the Florida SupremeCourt's judgment immediately bore further unconstitu-tional fruit when the trial court attempted to implementthe supreme court's decision, which effectively man-dated the creation of an entirely new set of arbitrary andunreviewable ad hoc procedures that are flatly incom-patible with the legislature's judgments regarding theconduct and timing of manual recounts and its delega-tion of authority to the Secretary of State to ensure uni-formity in election procedures. See Petitioners' Sup-plemental Mem. In Support Of Emergency Application,No. 00A-504 (filed Dec. 9, 2000). The trial court ex-plicitly acknowledged it was creating a two -tier system,one for Dade County and one for "the rest of the coun-ties in the state." Hearing Tr. at 5 (attached to Petition-ers' Supplemental Mem.). In the interest of making therecounts "go as smoothly as possible," the trial courtprecluded parties from objecting to the interpretation orallocation of individual ballots in the course of the re-counts. Id. at 8. The trial court called for county can-vassing boards throughout the state to create new "pro-tocols" for the recounts. Id. And the trial court explic-itly acknowledged that there were to be no specific, uni-form standards to guide the recounts. Id. at 10.This case is the quintessential illustration of whatwill inevitably occur in a close election where the rulesfor tabulating ballots and resolving controversies arethrown aside after the election and replaced with judi-cially created ad hoc and post hoc remedies without re-gard for uniformity, objectivity, or finality. The FloridaSupreme Court has not only violated the Constitutionand federal law, it has created a regime virtually guaran-teed to incite controversy, suspicion, and lack of confi-dence not only in the process but in the result that such aprocess would produce.OPINIONS BELOWThe opinion of the Supreme Court of Florida below(Pet. App. 1a-56a) is not yet reported. The order of theCircuit Court for the County of Leon, Florida (Pet. App.57a) is not reported. The November 21, 2000 opinion ofthe Supreme Court of Florida in Palm Beach CountyCanvassing Board v. Harris (Pet. App. 66a-100a), is re-ported at __ So. 2d __, 2000 WL 1725434 (Fla. Nov. 21,2000).JURISDICTIONThe judgment of the Supreme Court of Florida wasentered on December 8, 2000. The jurisdiction of thisCourt rests upon 28 U.S.C. §1257(a). See Applic. forStay, No. 00A504, at 16-19. Petitioners seek reversal ofthe Supreme Court of Florida's decision, which, as ex-plained below, violates Article II of the United StatesConstitution, 3 U.S.C. §5, and the Fourteenth Amend-ment to the Constitution, and irreconcilably conflictswith this Court's decision in Bush v. Palm Beach CountyCanvassing Board, No. 00-836 (Dec. 4, 2000).CONSTITUTIONAL PROVISIONSAND STATUTES INVOLVEDThe pertinent constitutional and statutory provisionsare set forth at Pet. App. 127a-145a.STATEMENT OF THE CASEAccording to the initial count and statutory recountsof the Florida election results, Governor Bush receivedmore votes for President than did Vice President Gore.Nevertheless, more than a month after the November 7presidential election, the outcome of that election re-mains shrouded in uncertainty, confusion, and intensecontroversy. The thirty-three days since the electionhave been characterized by widespread turmoil resultingfrom selective, arbitrary, changing, and standardlessmanual recounts of ballots in four Florida counties pur-suant to requests made on behalf of Democratic presi-dential candidate Vice President Gore. The tide of liti-gation flowing from that fatally flawed process has re-sulted in decisions of the Florida Supreme Court thatrewrite substantial portions of Florida's Election Code ina dramatic and unconstitutional departure from thescheme enacted by the legislature--a departure thatthreatens Florida's ability to obtain the finality and cer-tainty that the Florida Legislature intended to achieveand that compliance with 3 U.S.C. § 5 provides.A. Florida's Election Laws As Of November 7Prior to November 7, 2000, pursuant to the authorityconferred on it by Article II of the United States Consti-tution and 3 U.S.C. §5, the Florida Legislature had en-acted a comprehensive and carefully interwoven statu-tory plan and set of procedures and timetables to governthe appointment of presidential electors, the conduct ofelections, and the timely resolution of disputes and con-troversies related thereto.Shortly after a presidential election, each Floridacounty's canvassing board is responsible for countingand certifying the election returns and forwarding themto the Florida Department of State. Fla. Stat. § 102.141.Florida's Secretary of State "is the chief election officerof the State" with responsibility to "[o]btain and main-tain uniformity in the application, operation, and inter-pretation of the election laws." Fla. Stat. §97.012(1)."[A]s soon as the official results are compiled from allcounties," the statewide Elections Canvassing Commis-sion--comprising the Governor, the Secretary of State,and the Director of the Division of Elections--is re-quired to "certify the returns of the election and deter-mine and declare who has been elected for each office."Fla. Stat. § 102.111(1).The legislative scheme contains two provisionsmandating that local county canvassing boards must cer-tify their election returns to the Department of State nolater than 5:00 p.m. on the seventh day following theelection. Fla. Stat. §§ 102.111, 102.112. Section102.112 further provides that returns filed after thatdeadline "may" be ignored by the Secretary of State.Florida law provides that, prior to the seven-day cer-tification deadline, disputes over election results may beraised by submitting a "protest" to the county canvass-ing boards, see Fla. Stat. §102.166(1)-(2), and/or a re-quest for a manual recount, id. § 102.166(4)-(10). Thecounty canvassing boards have the discretion to reject oraccept the request for a recount. Id. § 102.166(4)(c). Ifthe canvassing board decides to perform a manual re-count, it may first conduct a sample manual recount. Id.§ 102.166(4)(d). If the sample manual recount indicates"an error in the vote tabulation which could affect theoutcome," the county canvassing board may correct theerror and recount remaining precincts with the votetabulation system, request verification of the tabulationsoftware, or "[m]anually recount all ballots." Id.§ 102.166(5).If the canvassing board chooses to embark on amanual recount, the board "shall appoint as many count-ing teams of at least two electors as is necessary tomanually recount the ballots," Fla. Stat. § 102.166(7)(a),and "[i]f the counting team is unable to determine avoter's intent in casting a ballot, the ballot shall be pre-sented to the county canvassing board for it to determinethe voter's intent," id. at (7)(b).B. State Court Proceedings Leading To Exten- sion Of The Certification DeadlineAlthough both the initial results of the November 7election and a statewide machine recount of the ballotsshowed that Governor Bush and Secretary Cheney hadreceived the most votes in the presidential election inFlorida, a manual recount in four selected counties wasrequested on behalf of Vice President Gore and SenatorLieberman (the "Gore respondents"). On November 13,2000, respondent Gore and others brought suit in statecourt, seeking to compel the Secretary of State to waivethe November 14 deadline established by Florida stat-utes for certifying Florida's presidential election results.That suit sought to require the inclusion in certified to-tals of the results of manual recounts then contemplatedor ongoing in Broward, Miami-Dade, and Palm BeachCounties. The circuit court denied that relief on No-vember 17, concluding that the Secretary of State hadexercised "reasoned judgment" in declining to acceptlate returns.On November 21, the Florida Supreme Court re-versed the circuit court and declared for the first time inFlorida law that "the Secretary may reject a Board'samended returns only if the returns are submitted so latethat their inclusion will preclude a candidate from con-testing the certification or preclude Florida's voters fromparticipating fully in the federal electoral process." Pet.App. 97a. The Florida Supreme Court accordingly di-rected the Secretary of State to accept untimely manualrecount returns through 5:00 p.m. on November 26,2000--twelve days after the statutory deadline--and di-rected the Secretary to include in her certifications allmanual recount returns received by that date. Id. at 99a.Manual recounts thus occurred after November 14to varying degrees in Broward, Palm Beach, and Miami-Dade counties, and results from Broward County'smanual recount were submitted to the Secretary of Stateon November 25. Pet. App. 116a. On November 22,the Miami-Dade County Canvassing Board unanimouslydecided to halt its manual recount, after counting only136 of the 635 precincts in the county. Id. at 59a. ThePalm Beach Canvassing Board began a manual recount,but did not complete its work by the 5:00 p.m. Nove m-ber 26 deadline set by the Florida Supreme Court. TheBoard instead submitted partial returns at that time andlater supplemented them. Id. at 60a.As of 5:00 p.m. on November 26, the tabulated re-sults showed for the third time that Governor Bush hadreceived the most votes for President. Accordingly, theSecretary of State certified those returns and the Elec-tion Canvassing Commission declared Governor Bushthe winner of Florida's presidential election.C. This Court's Prior DecisionOn November 22, Governor Bush filed a petition forcertiorari seeking review in this Court of the Florida Su-preme Court's November 21 decision. On December 4,2000, this Court issued a unanimous per curiam opinion,vacating that decision and remanding the case "for fur-ther proceedings not inconsistent with this [Court's]opinion." Bush, slip op. at 6. This Court decided "todecline at this time to review the federal questions"raised by petitioners because of uncertainty as to thegrounds for the decision below. Id. (emphasis added).But this Court cautioned the court below against ove r-riding the Florida Legislature's "wish" to secure for Flo-ridians the benefits of the "safe harbor" accorded by 3U.S.C. § 5, see Bush, slip op. at 6, and expressly di-rected the court below to explain "the extent to which[it] saw the Florida Constitution as circumscribing thelegislature's authority under Art. II, §1, cl. 2" and "theconsideration [it] accorded to 3 U.S.C. §5." Id. at 7.The Florida Supreme Court has not yet issued an opin-ion in that case on remand.D. The Election ContestCandidates and voters are permitted by Florida lawto "contest" the certification of an election by filing acomplaint in circuit court. See Fla. Stat. §§ 102.168,102.1685. Such contests must be initiated within 10days of the certification, see Fla. Stat. § 102.168(2), andinvolve judicial proceedings, including formal plead-ings, discovery, and trial. Fla. Stat. § 102.168(3)-(8).On November 27, 2000, the day after GovernorBush was certified as the winner of the November 7presidential election in Florida, the Gore respondentsfiled a complaint in the Circuit Court for Leon County tocontest that certification. Like the earlier protest ac-tions, the complaint sought relief primarily with respectto a handful of heavily Democratic counties. The com-plaint alleged that the results certified by the Secretaryof State improperly (1) failed to include a partial manualrecount of ballots in Miami-Dade County; (2) failed toinclude untimely results of a manual recount in PalmBeach County; and (3) included the results from NassauCounty's original machine count of ballots. The Gorerespondents further asked the court to evaluate ballots inPalm Beach County and Miami-Dade County that theGore respondents contended were not properly counted.In response, Governor Bush and Secretary Cheney ar-gued inter alia that the relief sought by the Gore respon-dents would violate federal statutes and the UnitedStates Constitution. See, e.g., Pet. App. 110a-117a,120a-121a, 125a-126a.On December 4, 2000, following a two-day trial, thecircuit court rejected the Gore respondents' claims. Thecourt found that there was no credible evidence estab-lishing a reasonable probability that the Florida electionresults would be different if the requested relief weregranted to the Gore respondents; that the Miami-DadeCounty Canvassing Board did not abuse its discretion indeciding not to perform a complete manual recount; andthat the Palm Beach County Canvassing Board did notabuse its discretion in determining that the 3,300 ballotsthe Gore respondents sought to have reviewed again bythe circuit court were non-votes. Pet. App. 61a-62a.The circuit court also found that the Palm Beach County"process and standards [for evaluating ballots] werechanged from the prior 1990 standards," and noted thatthese changes were "perhaps contrary to Title III, Sec-tion (5) of the United States Code." Id. at 62a-63a.1

1 That factual finding was supported by substantial evi-dence presented during the trial below. For example, JudgeBurton, Chairman of the Palm Beach County CanvassingBoard, admitted that when the first ballots were subject to asample manual recount on November 11, the canvassingboard used its existing 1990 guidelines mandating that if a"chad . . . is fully attached, bearing only an indentation, [it]should not be counted." Trial Transcript, Gore v. Harris, No.00-2808, at 238, 239, 240 (Fla. Cir. Ct. Dec. 2-3, 2000)("Trial Tr."). Judge Burton testified that during the samplerecount, the canvassing board changed to the "SunshineRule," id. at 240 (defining "Sunshine Rule" as "any light thatwas coming through any indentation on a ballot"), and thenback again to the 1990 standard. Id. at 242. According toJudge Burton, the Board eventually abandoned any sem-blance of a per se rule. Id. at 245. Ultimately, a court or-

The circuit court expressed its concern that imple-menting a different standard for evaluating ballots dur-ing the contest proceeding would create a two -tier sys-tem not only within certain counties, but also with re-spect to other counties. Citing an opinion letter fromFlorida's Attorney General, the circuit court explainedthat such a system "would have the effect of treatingvoters differently depending upon what county theyvoted in .. . . [thereby raising] legal jeopardy under boththe United States and state constitutions." Pet. App. 63a(citation omitted).The evidence before the trial court revealed that thelack of any specific guidance for determining whether aparticular ballot reflected a vote, see Fla. Stat.§ 101.5614(5), led to wide discrepancies across andwithin Florida counties regarding the evaluation of bal-lots in a manual recount. Indeed, standards often variedeven from one canvassing board member to another inthe same county.2

dered the canvassing board to consider "dimpled" chads eventhough the pre-existing 1990 policy precluded treating mereindentations as valid votes, see Florida Democratic Party v.Palm Beach County Canvassing Bd., No. CL 00-11078-AB,2000 WL 1728721 (Fla. Cir. Ct. Nov. 22, 2000), and eventhough a sample ballot provided in each voting booth in-structed voters to: "check your ballot card to be sure yourvoting selections are clearly and cleanly punched and thereare no chips left hanging on the back of the card." Touchstonv. McDermott, No. 00-15985, 2000 WL 1781942, at *6 n.19(11th Cir. Dec. 6, 2000) (Tjoflat, J., dissenting).2 For example, according to a monitor in Miami-DadeCounty, there were four different standards applied by threedifferent canvassing board members. Judge King determinedthat every "dimpled or pregnant chad . . . was a vote," TrialTr. 497, whereas Judge Lehr looked for any indication ofchad separation. Id. at 497, 499. Supervisor Leahy switchedfrom looking for a "two point" hanging chad during the sam-

The evidence before the trial court also revealed thesubstantial degradation of ballots caused by manualhandling. Ballot fragility was most plainly evident inMiami-Dade, which attempted to undertake a selectiverecount during the judicially-extended protest period.Miami-Dade used machines in the first instance to seg-regate "no vote" ballots. Trial Tr. 479. That processdemanded the constant stopping and starting of the bal-lot-counting machines, and frequent manual treatment ofballots was necessary to retrieve non-votes, clear jams,and process the ballots. Id. at 484, 485. The rough han-dling led to approximately 1,000 chads per day beingdislodged from ballots. Id. at 506.E. The Florida Supreme Court's DecisionOn December 8, 2000, a 4-3 majority of the FloridaSupreme Court reversed the circuit court and announcedthe creation of a complex, non-uniform, and novel sys-tem for further manual recounts. The majority held thatcanvassing board decisions were not "to be accorded thehighly deferential abuse of discretion' standard" afterthe protest period. Pet. App. 13a. Despite that ruling,and without review of the ballots, the majority directlyordered the inclusion of (1) 176 or 215 net votes for theGore respondents as "identified" by the Palm BeachCanvassing Board,3 and (2) 168 net votes for the Gorerespondents "identified in the partial recount" by theMiami-Dade Canvassing Board but not submitted forcertification. Pet. App. 3a-4a. All of these ballots were

ple recount, id. at 499, to the "Sunshine Rule" describedabove. Id. at 497. These standards also differed from thestandards used in Palm Beach County.3 The court directed the trial court to determine whether176 or 215 was the correct number. Pet. App. 4a n.6.

counted after the November 14 deadline.4 Furthermore,the majority ordered the trial court "to immediatelytabulate by hand the approximately 9,000 Miami-Dadeballots," id. at 33a, yet ordered the supervisors of elec-tions and canvassing boards "in all counties that havenot conducted a manual recount or tabulation of the un-dervotes in this election to do so forthwith," id.5The majority opinion did not acknowledge or re-spond to this Court's December 4 opinion vacating theNovember 21 decision, nor did it explain how its newlyfashioned directives complied with 3 U.S.C. § 5's timelimit. The majority conceded, however, that the "needfor prompt resolution and finality is especially critical inpresidential elections where there is an outside deadlineestablished by federal law," Pet. App. 31a, and that "be-cause the selection and participation of Florida's electorsin the presidential election process is subject to a strin-gent calendar controlled by federal law, the Floridaelection law scheme must yield in the event of a con-

4 These votes were thus untimely under the statutory dead-line, and were included only by virtue of the supreme court'simproper reliance on its vacated November 21 opinion.5 The majority's decision thus has the effect of subjectingMiami-Dade County to an arbitrary double standard. Theresults from a full manual recount of all ballots from 20 per-cent of its precincts (the most heavily Democratic, in whichVice President Gore received about 75% of the vote) wereordered included in the totals, but the ballots from the re-maining 80 percent of the county's precincts (many of whichare more heavily Republican) would have only "undervotes"manually counted. Chief Justice Wells, in his dissent, ex-pressed concern about this effect, because "not to count all ofthe ballots if any were to be recounted would plainly bechanging the rules after the election and would be unfairlydiscriminatory against votes in the precincts in which therewas no manual recount." Pet. App. 44a.

flict." Id. at 16a n.11 (emphasis added). The courtnonetheless created and imposed a novel recount planthat could not be completed in a timely and orderlymanner and that would, by definition, conflict with 3U.S.C. § 5. See Pet. App. 32a n.21 ("we agree that prac-tical difficulties may we ll end up controlling the out-come of the election"); id. at 56a (Harding, J., dissent-ing) (majority "provid[ed] a remedy which is impossibleto achieve and which will ultimately lead to chaos").Nor did the majority explain how its judgment couldbe reconciled with the constitutional and federal lawclaims raised by petitioners below. See, e.g., Pet. App.109a-110a (equal protection and due process); Pet. App.110a (Article II and 3 U.S.C. § 5). As Chief JusticeWells wrote in dissent, Florida's "[c]ontinuation of [a]system of county-by-county decisions regarding how adimpled chad is counted is fraught with equal protectionconcerns . . . ." Pet. App. 43a-44a. He also concludedthat directing the trial court to conduct a manual recountof the Miami-Dade County ballots violates Article II ofthe federal Constitution, in that "neither th[e Florida Su-preme] Court nor the circuit court has the authority tocreate the standards by which it will count the under-voted ballots." Id. at 45a. Chief Justice Wells also ex-pressed concern that "in a presidential election, theLegislature has not authorized the courts of Florida toorder partial recounts, either in a limited number ofcounties or statewide," id. at 46a, and that "there is un-certainty as to whether the Florida Legislature has evengiven the courts of Florida any power to resolve contestsor controversies in respect to presidential elections." Id.at 49a. In addition, Chief Justice Wells cautioned that"manual recounts by the canvassing board[s] are consti-tutionally suspect." Id. at 43a n.28.6

6 Chief Justice Wells further noted that "[a] continuingproblem with these manual recounts is their reliability. Itonly stands to reason that many times a reading of a ballot by

Although the majority announced that "every citi-zen's vote be counted whenever possible," Pet. App.17a, and that it was the Florida Supreme Court's duty to"see that every citizen's vote be counted," id. at 17an.12, the majority held that "a final decision as to theresult of the statewide election should only be deter-mined upon consideration of the legal votes containedwithin the undervote or no registered vote' ballots of allFlorida counties, as well as the legal votes already tabu-lated." Id. at 18a. As Chief Justice Wells pointed out inhis dissent, the majority ignored the fact that "ove r-votes" as well as "undervotes" result in a vote not beingcounted. Id. at 38a-39a n.26 (Wells, C.J., dissenting)("It seems patently erroneous to me to assume that thevote-counting machines can err when reading under-votes but not err when reading over-votes.").7The majority directed the trial court "to enter suchorders as are necessary to add any legal votes to thestatewide certifications," Pet. App. 33a, and instructed

a human will be subjective [and] [t]his subjective counting isonly compounded where no standards exist or, as in thisstatewide contest, where there are no statewide standards fordetermining voter intent by the various canvassing boards,individual judges, or multiple unknown counters who willeventually count these ballots." Pet. App. 47a-48a.7 The majority's reasoning about "undervotes," appears tobe that any mark on a ballot--such as a dimpled indenta-tion--reflects an intent to vote, even if it is not counted by amachine. If that premise is accepted, then all of the machine-counted votes would also have to be examined manually sothat ballots that include two "votes" for President can be ex-cluded from the totals. The majority failed to address thislogical extension of its reasoning, which, as the evidence be-fore the trial court demonstrated, actually occurred. Trial Tr.512-13 (witnessing instances where machine-counted voteincluded in totals also contained a "dimple vote" for anothercandidate).

that during the recounts, the standard to be applied indetermining whether a vote is "legal" is whether there isa "clear indication of the intent of the voter." Id. at 34a(citing Fla. Stat. § 101.5614(5)). The majority providedno further guidance to the trial court, refusing to makeprovision for, among other things, "the qualifications ofthose who count," "whether a person may object to acounter," "what standards are used in the count," "theeffect of differing intra-county standards," or "how oneobjects to the count." See id. at 48a (Wells, C.J., dis-senting). Chief Justice Wells expressed his concern thatthe majority's prolongation of "this counting contestpropels this country and this state into an unprecedentedand unnecessary constitutional crisis." Id. at 35a.8In the wake of the majority's decision, the trial courtimplemented the supreme court's mandate by issuingorders near midnight on December 8 regarding how therecount would proceed. It ordered that by 8:00 a.m. De-cember 9, 64 county canvassing boards were to beginsegregating their "undervotes" with a goal of completinga recount by 2:00 p.m. on Sunday, December 10. Hear-ing Tr. 5, 7, 9 (attached to Petitioners' SupplementalMem. In Support Of Emergency Application, No. 00A-504 (filed Dec. 9, 2000)). The trial court did not estab-lish any uniform, statewide method for identifying andsegregating undervotes, nor did it provide any instruc-tion to avoid double counting previously counted ballots.Instead, it merely ordered each canvassing board to de-velop "some indication of the protocol purported or pro-posed" to segregate undervotes by noon on Saturday,

8 Both dissents also pointed out that the majority's decisiondeparts from the law as it existed on November 7. See Pet.App. 35a (Wells, C.J., dissenting) (majority's decision "hasno foundation in the law of Florida as it existed on November7, 2000"); id. at 55a (Harding, J., dissenting) ("the majorityhas established standards for manual recounts--a step thatthis Court refused to take in an earlier case").

December 9, 2000. Id. at 8. The trial judge instructedthat the recount was to be conducted by some combina-tion of judges, canvassing board employees, and "suchother public officials" as the various counties deemednecessary in light of the schedule. Id. at 8-9. The trialcourt called upon judges in other counties to assist in therecount in order "to give some objectivity and partiality[sic] to the process itself, to reduce, to the extent possi-ble any objections to the manner in which [the recount]was conducted." Id. at 9 (emphasis added). The trialcourt, however, expressly forbade objections to the voterecounts as they occurred, although observers could takenotes and (in theory only) submit written objectionslater. Id. at 8-9.The events that occurred in the wake of the major-ity's decision thus closely mirrored Justice Harding'swarning: "Even if such a recount were possible, speedwould come at the expense of accuracy, and it would bedifficult to put any faith or credibility in a vote totalachieved under such chaotic conditions." Pet. App. 55a(dissenting opinion).SUMMARY OF ARGUMENTI. The new standards, procedures, and timetablesestablished by the Florida Supreme Court for the selec-tion of Florida's presidential electors are in conflict withthe Florida Legislature's detailed plan for the resolutionof election disputes. The court's new framework thusviolates Article II, § 1, cl. 2 of the United States Consti-tution, which vests in state legislatures the exclusive au-thority to regulate the appointment of presidential elec-tors. See McPherson v. Blacker, 146 U.S. 1, 27 (1892).A. The multiple ways in which the Florida Su-preme Court's decision has cast aside provisions of thestatutory scheme governing elections also constitute vi o-lations of Article II, §1 because they usurp the legisla-ture's exclusive authority. These judicial departures in-clude: the elimination of the Secretary of State's author-ity to maintain uniformity in application of the electionlaws; disregard for the statutory provisions that requiremanual recounts to include "all" ballots; the substitutionof courts for canvassing boards in determining ballot va-lidity; and the imposition of de novo judicial review bycourts of canvassing boards' certified judgments.B. Because state constitutions cannot alter ArticleII's direct and exclusive grant of authority to legisla-tures, and because the Florida Legislature did not dele-gate to it the power to do so, the Florida Supreme Courtdid not have jurisdiction or authority to decide this case.The Florida Legislature has granted jurisdiction overelection contests only to Florida circuit courts.C. The Florida Supreme Court's decision repeat-edly relies on its November 21 decision, which thisCourt had already vacated, and the consequences of thatdecision. This magnifies the Article II violations thatthe November 21 decision produced.II. The Florida Supreme Court's revision of Flor-ida's statutory system for resolving election disputesalso violates 3 U.S.C. § 5, which gives conclusive effectto determinations of controversies or contests concern-ing the appointment of electors only if those determina-tions are made "pursuant to" "laws enacted prior to"election day and within the federally mandated Decem-ber 12 deadline.Section 5 is intended to "assure" States of "finality"in the determination of their presidential electors, andthis Court has already cautioned the Florida SupremeCourt "against any construction of [state law] that Con-gress might deem to be a change in the law." Bush v.Palm Beach County Canvassing Board, No. 00-836, slipop. at 6.Although the court below acknowledged to the"stringent calendar controlled by federal law," Pet. App.16a n.11, it ignored federal law altogether by imposingmultiple changes on the statutory system for resolvingelection disputes. Among other things, the Florida Su-preme Court provided an extraordinary remedy that hasno statutory basis, and its novel exposition of the contestprovision essentially reads out other more specific pro-visions in Florida's Election Code.III. The new set of manual recount procedures con-cocted by the Florida Supreme Court is arbitrary, stan-dardless, and subjective, and will necessarily vary in ap-plication, both across different counties and within indi-vidual counties, in violation of the Equal Protection andDue Process Clauses of the Fourteenth Amendment.A. The Equal Protection Clause forbids the statefrom treating similarly situated voters differently basedmerely on where they live. See, e.g., O'Brien v. Skinner,414 U.S. 524 (1974). Yet the various manual recountsordered by the Florida Supreme Court will necessarilyresult in such differential treatment in violation of theEqual Protection Clause. The lack of uniform standardsfor counting "votes" means that voters who cast identi-cal ballots in different counties will likely have their bal-lots counted differently. This is also true of the com-pleted manual recounts that the Florida Supreme Courthas compelled, or attempted to compel, the Secretary ofState to include in the certified election results.The new multi-tier recount scheme ordered by thecourt imposes several inherently different standards thatalso violate equal protection guarantees. It includes allnewly identified "votes" from about one-fifth of the pre-cincts in Miami-Dade County, but only orders the re-count of a fraction of ballots identified as "under-votes"from the other 80 percent of the county. And, while so-licitous of under-votes, the decision does nothing to ac-count for "over-votes" in the machine count (which arealso recorded as non-votes). Furthermore, by adoptingvarying levels of deference to the conclusions of differ-ent county canvassing boards, the court introduces evengreater disparities in treatment.B. Due process requires the application of clearand consistent guidelines based on prospective rules.See Logan v. Zimmerman Brush Co., 455 U.S. 422, 432(1982). Yet the Florida Supreme Court's new electionprocedures are retroactive and anything but clear andconsistent. In fact, they substantially deviate from prac-tices established before election day. Changing the legalstatus of ballots after the election on the basis of selec-tive, subjective, standardless, and shifting methods ofmanual recounting is fundamentally unfair. See Roe v.Alabama, 43 F.3d 574, 581 (11th Cir. 1995). Under theparticular circumstances imposed by the court for themanual recounts, due process is further compromisedbecause ballots are inevitably degraded during repeatedmachine inspection of ballots to segregate under-votesand by the manual recounts themselves. Moreover, theprescribed procedures adopted to implement the FloridaSupreme Court's judgment deny parties any meaningfulopportunity to object to subjective ballot determinationsor to receive judicial review of those determinations.Finally, the Florida Supreme Court has also fundamen-tally changed the meaning and legal consequences ofvote certification.ARGUMENTI. The Decision Of The Florida Supreme Court Violates Article II Of The ConstitutionThe Constitution expressly grants the legislatures ofthe several States plenary power over the appointment ofelectors, directing that electors shall be chosen "in suchManner as the Legislature thereof may direct." U.S.CONST. art. II, §1, cl. 2. As this Court has recognized,the Constitution "leaves it to the legislature exclusivelyto define the method of effecting the object [of appoint-ing electors]." McPherson v. Blacker, 146 U.S. 1, 27(1892) (emphasis added). Indeed, the Framers' "inser-tion of those words" in Article II--"in such Manner asthe Legislature .. . may direct"--undeniably "operate[s]as a limitation upon the State in respect of any attempt tocircumscribe the legislative power." Bush, slip op. at 4-5 (quoting McPherson, 146 U.S. at 25).The Florida Legislature enacted a carefully craftedstatutory scheme to govern the appointment of presiden-tial electors. In so doing, "the legislature [was] not act-ing solely under the authority given it by the people ofthe State, but by virtue of a direct grant of authoritymade under Art. II, §1, cl. 2, of the United States Con-stitution." Bush, slip op. at 4. By rewriting that statu-tory scheme--thus arrogating to itself the power to de-cide the manner in which Florida's electors are cho-sen--the Florida Supreme Court substituted its judg-ment for that of the legislature in violation of Article II.Such a usurpation of constitutionally delegated powerdefies the Framers' plan. The Florida Legislature neverauthorized judicial revision of the legislative structure itso meticulously conceived. Indeed, notwithstanding therote incantation by a majority of the court below of theparamount role of the state legislature in this field, thecourt's key conclusions were simply pronounced with-out even the pretense of any statutory support.This Court has recognized that the legislature's Ar-ticle II power of appointment is exclusive. See McPher-son, 146 U.S. at 34-35 ("The appointment of these elec-tors is thus placed absolutely and wholly with the legis-latures of the several states.'") (quoting with approval S.Rep., 1st Sess., 43d Cong., No. 395). Indeed, the Con-stitution contains provisions that vest responsibility inthe States qua States, e.g., U.S. CONST. art. I, § 8, cl. 16,as well as provisions that, as here, single out the particu-lar branch of state government charged with exercisingcertain duties integral to the functioning of the federalgovernment, e.g., U.S. CONST. art. I, § 2, cl. 4. In lightof the Constitution's precise distinctions among statelegislative, executive, and judicial powers, the Framers'decision to vest specific authority in state legislaturesmust be understood to be exclusive of state executive orjudicial power to prescribe the "manner" of appointingelectors. Thus, in the absence of a clear and expressdelegation of the appointment power by the legislatureto a coordinate branch of government, the Constitutionbars the exercise of that power by any other branch.A. The Decision Below Overrides Numerous Provisions Of Florida Election LawThe decision below overrides numerous provisionsof the detailed and specific statutory scheme enacted bythe Florida Legislature. The resulting, judicially prom-ulgated election scheme not only flies in the face of thespecific language of the contest statute but also rendersall but irrelevant the detailed statutory provisions ad-dressing when and how canvassing boards may conductmanual or other recounts--including the requirementthat any such recount must include "all ballots"--andthe Secretary of State's duty and authority to ensure uni-formity in the operation of the election laws by issuingopinions that are binding on the canvassing boards, theonly bodies statutorily authorized to "count" votes. Thatnew, judicially promulgated system is a plain violationof Article II.First, assuming arguendo that the contest statuteeven applies to presidential elections, the court belowsimply disregarded the plain language of that statute.9

9 The § 102.168 remedy by its terms does not extend topresidential elections, and it certainly does not authorize acontest action by a candidate for President (rather than by anunsuccessful candidate for presidential elector). Florida lawinstead establishes separate procedures for certifying theelection of presidential electors and for replacing electorswhen appropriate, but makes no provision for a "contest" ofthe presidential election. See Fla. Stat. §§ 103.011,103.021(5). The court's arbitrary extension of § 102.168 to a

As is clear from the face of the contest statute, what is"contested" is "the certification." Fla. Stat.§ 102.168(1) (emphasis added). The deadline for filinga contest action runs from "the date the last county can-vassing board . . . certifies the results of the election be-ing contested," id. at §102.168(2); in any such action"the proper party defendant" "shall be" the canvassingboard. Id. at 102.168(4). It would be hard to find lan-guage that more clearly indicates the legislature's intentto provide for judicial review of the certification deci-sion, as opposed to a de novo examination of each pur-portedly disputed ballot without regard to the certifiedjudgment of the body whose statutory duty is to countthe votes. Not surprisingly, until the decision below,Florida law had long recognized that there is a "pre-sumption that returns certified by election officials arepresumed to be correct." Boardman v. Esteva, 323 So.2d 259, 268 (Fla. 1975). Specifically, certified electionreturns are "regarded by the courts as presumptively cor-rect and if rational and not clearly outside legal require-ments should be upheld." Id. at 268-69 n.5 (quotationomitted). Indeed, to overcome that strong presumption,an election challenger must show, as a threshold matter,that there has been "substantial noncompliance with theelection statutes." Beckstrom v. Volusia County Can-vassing Bd., 707 So. 2d 720, 725 (Fla. 1998).By contrast, the decision below treats a contest as ade novo proceeding in which courts may treat the judg-ments of the canvassing boards and of the Secretary ofState--including certification--as purely hortatory pro-

presidential "contest" is therefore itself a violation of ArticleII.

nouncements.10 Those judgments thus become legallymeaningless, since the circuit court must adjudicate thedispute without regard to any reasons, however compel-ling, that the canvassing boards or the executive mayhave had for certifying results as they did. Plaintiffs inthe position of the Gore respondents thus need not "con-test" the "certification," for the court will--indeedmust--simply ignore it. In fact, under the ruling below,certified election returns are treated with less dignitythan returns that have not been certified by either thecounty canvassing boards or the state election commis-sion. While the certified election results from all othercounties (except Broward and Volusia, where manualrecounts produced over 700 additional Gore votes) arepresumed incorrect and will be subject to de novo judi-cial review, the decision below requires that the uncerti-fied results of manual recounts in Palm Beach County(adding 176 or 215 Gore votes) and Miami-DadeCounty (with 168 additional Gore votes based solely onpartial results) be certified without any judicial reviewof their correctness (or any review of whether the certi-fied results from these counties, in fact, "rejected legalvotes").The consequence of the court's ruling is nothing lessthan the evisceration of the internal coherence of the leg-islature's design. The legislature provided for canvass-ing boards, not courts, to count votes. Indeed, even the

10 The court attempted to justify its decision to ignore thecertification, and its imposition of "de novo" review, with theobservation that, because "a protest is not a prerequisite for acontest," "[n]o appellate relationship exists between a pro-test' and a contest.'" Pet. App. 12a-13a. Certification, how-ever, quite clearly is a prerequisite for a contest, and thestatute provides no basis for ignoring certification merely be-cause no "protest" need ever have been lodged before theelection results were certified.

statute from which the court below claimed to derive itspurportedly uniform "intent of the voter" standard--astatute that by its plain terms applies only to the initialcanvass of votes when a ballot is spoiled or damaged,see Fla. Stat. § 101.5614(5)--expressly provides thatwhether a ballot reflects a "clear indication of the intentof the voter" is a determination to be made "by the can-vassing board." Id. (emphasis added). See also Fla.Stat. §102.166(7)(b) ("If a counting team is unable todetermine a voter's intent in casting a ballot, the ballotshall be presented to the county canvassing board for itto determine the voter's intent.") (emphasis added). Byrevoking the canvassing board's legislatively conferredauthority and ordering the circuit court to "commencethe tabulation of the Miami-Dade ballots" and conductits own de novo examination of which ballots are valid,Pet. App. 34a, the court below overrode the will of thelegislature to repose responsibility for examining ballotsin election officials with presumed expertise in this field(subject to the ultimate interpretive authority of the Sec-retary of State), and thereby violated Article II, § 1. SeePet. App. 45a (Wells, C.J., dissenting) ("Directing thetrial court to conduct a manual recount of the ballotsviolates article II, section 1, clause 2 of the United StatesConstitution, in that neither this Court nor the circuitcourt has the authority to create the standards by whichit will count the under-voted ballots").Moreover, the legislature clearly anticipated thatsome elections might be close, and clearly providedrules on how to deal with that situation. In particular,the legislature has never prescribed manual recounts asthe exclusive, or even preferred, methodology for dis-cerning the intent of voters or for distinguishing "legal"from "illegal" votes. Instead, when an initial count ofthe election results demonstrates that the margin of vi c-tory for a candidate is less than one-half of one percent,an automatic recount must take place, unless the losingcandidate does not desire such a recount. See Fla. Stat.§ 102.141(4). A manual recount may be ordered at theprotest stage, subject to detailed requirements--including the requirement that "all ballots" must becounted when such a recount is ordered. See Fla. Stat.§ 102.166. Under the scheme devised by the court be-low, however, there literally is no point in the safeguardsprovided for such recounts at the protest stage. Indeed,there is no point in any candidate or canvassing boardever going through the protest process or in conducting amanual recount. To achieve the result reached by thecourt below, the legislature might as well have dis-pensed with the bulk of the election code and simplyprovided for the shipment of all ballots to the circuitcourt immediately following the certification of the elec-tion results. Indeed, if Florida law could plausibly beread in the manner announced by the court below, thecourt's own earlier efforts--merely two weeks ago--toextend the certification deadline so as to permit addi-tional manual recounts are completely inexplicable.The Florida Supreme Court also approved the inclu-sion in the statewide election results of ballots (such asthose from Broward County) that were counted as validvotes on the basis of mere "dimples" or indentations onthe ballot. The Florida legislature has never providedthat dimpled ballots should be counted as valid votes.To the contrary, counting "dimpled" ballots as validvotes violates the very statute relied on by the court be-low, Fla. Stat. § 101.5614(5), which requires "a clearindication of the intent of the voter as determined by thecanvassing board" (emphasis added). Although theelection code contemplates a certain level of discretionin how canvassing boards may elect to count votes, italso provides expressly for the means for cabining thatdiscretion and binding those boards to a uniform count-ing standard: The Secretary of State is the "chief elec-tion officer of the state" and her duty is to "[o]btain andmaintain uniformity in the application, operation, andinterpretation of the election laws." Fla. Stat.§ 97.012(1). The Florida Supreme Court's crazy-quiltruling, by contrast, orders selective and partial recountsconducted pursuant to varied and ever-shifting stan-dards, thus expressly mandating a lack of consistency--in direct contravention of the legislature's unequivocaldirective to achieve uniformity in the operation of Flor-ida's election laws.11Before the decision below, no statute in Florida hadever been interpreted as establishing the principle that"it is absolutely essential" to conduct a manual recountof all "undervotes" to determine whether a voter's intentcan be divined from them. Id. at 15a. In every state-wide election there are tens or hundreds of thousands ofballots that do not register votes and yet are not manu-ally recounted. But if that recount principle were in factan established fixture of Florida law, it would be hard toescape the conclusion that all ballots must be counted inthe same manner in order to determine each voter's true"intent." For example, once the court believed, howevererroneously, that the outcome of the election was "indoubt," it was irrational to require manually counting"undervotes" but not "overvotes"--the court's rulingwould require courts to ignore the vote of anyone whoclearly marked his ballot for a candidate and also wrotein the same candidate, resulting in his vote being dis-qualified as an "overvote" even though his intent is un-mistakable. The legislative safeguards of § 102.166(5)(c)--which provides that if a county canvassingboard elects to conduct a manual recount, it "shall""[m]anually recount all ballots" (emphasis added)--areplainly designed to avoid the dangers of selective, arbi-

11 Because the Florida legislature has empowered the can-vassing boards to determine what constitutes a "clear indica-tion" of voter intent, the decision below also substitutes judi-cially mandated standards for standards that the canvassingboards had issued pursuant to legislatively delegated author-ity. See Stay App., Exh. J (Palm Beach County Guidelinesproviding that "a chad that is fully attached, bearing only anindentation, should not be counted as a vote").

trary and incomplete results inherent in a partial manualrecount. Indeed, because the legislature imposed "amandatory obligation to recount all the ballots in thecounty'" before certification in those cases in which amanual recount is appropriate, Pet. App. 26a), it is in-conceivable that the legislature intended a partial re-count to suffice for overturning those certified results.12It is no answer to say that § 102.166's requirementthat a manual recount must include all ballots has no ap-plicability in a contest action under § 102.168. As ChiefJustice Wells recognized, "it is only in section 102.166that there are any procedures for manual recounts whichaddress the logistics of a recount," and thus the two sec-tions must be read consistently with one another--particularly where, as here, there was an initial protestfiled in a county pursuant to § 102.166 and a subsequentcontest of that county's return pursuant to §102.168.See Pet. App. 42a-43a (Wells, C.J., dissenting).The decision below therefore ushers in a regime thatcannot possibly be supported by any reasonable readingof the contest statute or any other provision of the Flor-ida Election Code. The authority to count votes, en-trusted by the Legislature to county officials subject tolimited judicial review, has now been seized by the statejudiciary, which alone now has authority to count votesand declare the election winner. A two -step process--administrative action followed by deferential judicialreview--has been transformed by fiat into a unitary ju-

12 Under the new legislative scheme adopted by the courtbelow, an unrepresentative 20 percent of the ballots in Mi-ami-Dade County will have been manually recounted andincluded in the certified total, whereas the remaining 80 per-cent (with the exception of the purported "undervotes") willnot have been manually recounted at all. (As discussed be-low, this also constitutes a patent violation of the Equal Pro-tection Clause.)

dicial examination of the ballots--one in which the cir-cuit court may simply commandeer any county re-sources it might need to conduct its own counts. Indeed,because those counts have been untethered from theminimal statutory moorings that the legislature pre-scribed for vote-counting--such as bipartisan member-ship in counting boards--subjective concepts of equityjurisprudence are the only safeguard on which petition-ers could rely to expect a fair evaluation of the disputedballots. Especially given that there is no objective statu-tory standard--or, even now, any judicially createdstandard--for determining which partially perforated or"dimpled" ballots evince clear voter intent and are there-fore "legal votes," there is no basis for believing thatthat necessarily ad hoc process would produce a resultmore reliable than that produced by the certified electionresults.B. Article II Precludes The Florida Supreme Court's Exercise Of JurisdictionThe Supreme Court of Florida lacked jurisdiction, asa matter of federal law, to enter the judgment below.Under Florida law, assuming arguendo that the legisla-ture has authorized contest actions in presidential elec-tions, only the circuit court possessed legislatively con-ferred jurisdiction to resolve the Gore respondents'claims. See Fla. Stat. § 102.168(1) (permitting electioncertifications to be "contested in the circuit court"); id.§ 102.168(8) (authorizing "[t]he circuit judge to whomthe contest is presented" to resolve contests).13

13 Although petitioners' counsel responded to an oral ar-gument inquiry in a manner expressing acceptance of thatcourt's jurisdiction, petitioners promptly clarified their posi-tion in their post-argument brief in the court below. Thatbrief noted that Article II confers sole authority on state leg-islatures to determine the manner of appointing electors, andthat the legislature's authority "cannot be taken from them

By contrast, the Florida Legislature granted no suchjurisdiction to the Florida Supreme Court--a pointseemingly recognized by the court below, which ration-alized its authority to overturn the circuit court's judg-ment on the sole basis of the Florida Constitution. Pet.App. 1a (citing FLA. CONST. art. V, § 3(b)(5)); see alsoAllen v. Butterworth, 756 So. 2d 52, 63 (Fla. 2000)("appellate jurisdiction of the courts of Florida is de-rived entirely from Article V of the Florida Constitu-tion"). Article II, § 1 of the United States Constitution,however, does not permit state constitutions to circum-scribe in any way a state legislature's selection of themanner of choosing presidential electors. See McPher-son, 146 U.S. at 35 ("This power is conferred upon thelegislatures of the states by the constitution of the UnitedStates, and cannot be taken from them or modified bytheir state constitutions.") (emphasis added) (quotingwith approval Senate Rep., 1st Sess., 43d Cong., No.395). Thus, because the Florida Legislature has con-ferred no role in reviewing contests over the results of apresidential election on the Florida Supreme Court, the

or modified by their State constitutions . . . .'" Pet. App.102a n.1 (citations omitted). As petitioners explained, "equi-table relief cannot lie because . . . the original and appellatejurisdiction of the Courts of Florida is derived entirely fromarticle V of the Florida Constitution, not [from] the Floridalegislature.'" Id. at 104a-105a (citation omitted). For thatreason, the court below had no substantial basis for assertingthat all parties "agree[d]" to that court's jurisdiction. Id. at1a n.1. Indeed, even if petitioners had agreed to--rather thanexpressly challenged--the court's jurisdiction, that would notprovide an adequate state ground for the court's exercise ofjurisdiction in this case, because under Florida law, "the par-ties cannot stipulate to jurisdiction over the subject matterwhere none exists.'" Polk County v. Sofka, 702 So. 2d 1243,1245 (Fla. 1997) (quoting Cunningham v. Standard Guar.Ins. Co., 630 So. 2d 179, 181 (Fla. 1994)).

court below lacked authority to enter its judgment, andthe judgment below must accordingly be reversed.This Court confronted a similar question in Leser v.Garnett, 258 U.S. 130 (1922), where it rejected a claimthat several state legislatures, owing to provisions intheir respective state constitutions, lacked the power toratify the Nineteenth Amendment. The Court held thatthe state constitutions did not limit the legislatures' con-stitutionally delegated power, explaining that "the func-tion of a state legislature in ratifying a proposedamendment to the Federal Constitution, like the functionof Congress in proposing the amendment, is a federalfunction derived from the Federal Constitution; and ittranscends any limitations sought to be imposed by thepeople of a State." Id. at 137. See also Hawke v. Smith,253 U.S. 221, 227 (1920) (rejecting state constitutionallimits on legislature's ratification power and concluding"[i]t is not the function of courts or legislative bodies,national or state, to alter the method which the Constitu-tion has fixed"). The Florida legislature's Article IIpower thus transcends any limitations sought to be im-posed by the Florida Constitution.Contrary to the Gore respondents' assertion, the su-preme court's reliance on the state constitution as a pur-ported basis for jurisdiction cannot be justified on thegrounds that the courts must "assume that the Legisla-ture passed [the contest statute] with knowledge of theprior existing laws." Stay Opp. Br. 12 (citation omit-ted). That principle of interpretation was not invoked bythe court below, and in any event cannot be tortured intothe proposition that the contest statute incorporates "theordinary accouterments of appellate review of circuitcourt decisions." Id. That canon of construction, what-ever it may mean in other circumstances, cannot meanthat the legislature can simply be deemed to havegranted to the state supreme court authority to reviewcontest proceedings in cases where Article II must beobserved. Because the legislature's power in this area is"exclusive[]," McPherson, 146 U.S. at 27, there is noreason to suspect the legislature intended its statutoryscheme to be "supplemented" with appellate reviewprovisions it chose not to include in the statute itself. Itwould amount to a significant erosion of Article II if thatgrant of plenary authority to state legislatures could bedeemed to have been delegated sub silentio.In sum, the court below plainly altered the "manner"of appointing electors. The court was constrained byArticle I, § 2 to follow the statutory scheme establishedby the legislature, but failed to do so, choosing insteadto substitute a scheme of its own devise. Such an unau-thorized exercise of constitutionally delegated powercannot escape this Court's scrutiny through the simpleexpedient of labeling it routine "judicial review" of acontest proceeding.C. The Florida Supreme Court's Decision Is Improperly Predicated On Its Now-Vacated Opinion Of November 21, Perpetuating Its Article II ErrorsAlthough this Court vacated the Florida SupremeCourt's November 21 decision in part based on reserva-tions concerning that opinion's compliance with, andconsideration of, Art. II, § 1, cl. 2 of the United StatesConstitution, Bush, slip op. at 7, the decision below ex-pressly rests--without explanation--on that earlierflawed decision. Such reliance on a prior vacated deci-sion defies this Court's mandate, and extends the errorof the November 21 decision, which was expresslypredicated on the erroneous assumption that state consti-tutional provisions override legislatively mandated pro-cedures for appointing presidential electors. The court'sDecember 8 opinion thus represents an ongoing viola-tion of McPherson and its requirement that the legisla-ture alone may define the method of appointing electors.Most prominently, the court below mandated thatadditional votes reflected in Palm Beach County's un-timely returns be added to Vice President Gore's certi-fied totals explicitly on the sole ground that the Nove m-ber 21 opinion "held that all returns must be consideredunless their filing would effectively prevent an electioncontest from being conducted or endanger the countingof Florida's electors in the presidential election." Pet.App. 29a-30a. Tellingly, the court below failed to ex-plain how its vacated decision is still even binding letalone how it squares with this Court's December 4 vaca-tur and remand with instructions to consider and followfederal law. Bush, slip op. at 7. In relying on its priorvacated decision without justification and without re-consideration, the Florida Supreme Court has flouted themandate of this Court.For example, because the Florida Supreme Court'sNovember 21 decision has been vacated, the Secretary'salternate certification of a 930-vote lead for GovernorBush should be in effect before any contest recounts be-gin, but that is clearly not contemplated by the court be-low. On several separate occasions, the court below ex-plicitly articulates a much smaller margin between thecandidates, and assumes votes counted by the countycanvassing boards after the statutory deadline hadpassed as valid votes for Vice President Gore. Indeed,two of the "errors" committed by the circuit court werein failing to count as valid votes "(1) the 215 net votesfor Gore identified by the Palm Beach County Canvass-ing Board and (2) in not including the 168 net votes forGore identified in a partial recount by the Miami-DadeCounty Canvassing Board." Pet. App. 3a-4a. Thesevotes could only possibly count if the court's November21, 2000 holding were still binding.14 Moreover, the

14 To be clear, the court below did not hold that the circuitcourt erred in merely failing to examine the Palm Beach andMiami-Dade County ballots and determine whether theywere legal votes or not--such a judgment would not neces-sarily conflict with this Court's prior mandate--but in failing

court below also implicitly countenances the inclusionof the returns from Broward County's manual recountconducted after the Florida statutory deadline but beforethe judicially-created November 26 deadline. Pet. App.30a.II. The Florida Supreme Court's Decision Conflicts With 3 U.S.C. § 5Congress has provided in 3 U.S.C. § 5 that "anycontroversy or contest concerning the appointment" of aState's electors should be resolved "pursuant to" "lawsenacted prior to" election day. 3 U.S.C. § 5 (emphasisadded). Two significant benefits follow from Statecompliance with the terms of §5. First, "it creates asafe harbor' for a State insofar as congressional consid-eration of its electoral votes is concerned." Bush, slipop. at 6. This alone advances the "pervasive nationalinterest'" in presidential elections by providing certaintyand finality. Anderson v. Celebrezze, 460 U.S. 780, 795(1983) (quoting Cousins v. Wigoda, 419 U.S. 477, 490(1975)). It embodies the congressional judgment thatrules applicable to election disputes cannot fairly bechanged once the voters have gone to the polls. See 18

to automatically include those votes as legal votes in the votetotals. Pet. App. 25a, 29a. Such conclusive deference is duea canvassing board determination--under the decision of thecourt below--only at the protest and not the contest stage ofthe proceeding. Pet. App. 13a. At the contest stage, the bal-lots--like the additional 9,000 Miami-Dade ballots--must bemanually examined to discern voter intent, Pet. App. 32a,and any canvassing board determinations in this regard aremere "evidence that a ballot does or does not qualify as a le-gal vote." Pet. App. 28a (emphasis added). Thus, the Flor-ida Supreme Court held that the Miami-Dade and PalmBeach County votes were properly counted at the proteststage of the recount process despite the fact that they werecounted after the statutory deadline governing that process.

CONG. REC. 47 (Dec. 8, 1886) (remarks of Rep. Cooper)("these contests should be decided under and by virtueof laws made prior to the exigency under which theyarose"); id. ("How could any court, how could any tri-bunal intelligently solve the claims of parties under alaw which is made concurrent, to the very moment per-haps, with the trouble which they are to settle under thelaw?").Section 5 thus creates a compact between States andCongress. By enacting laws prior to election day thatseek to resolve potential controversies or contests con-cerning presidential electors, in accordance with its ex-clusive authority vested by Article II, the Florida Legis-lature sought to obtain for the State of Florida and itsvoters the protections that § 5 affords.A second, and no-less-important, benefit of Statecompliance with the terms of § 5 is that it alleviates theneed for Congress to intervene actively in a presidentialelection. Indeed, Congress enacted § 5 precisely toavoid a repetition of the near-cataclysmic result of itseffort to resolve the presidential election of 1876. See,e.g., 18 CONG. REC. 30 (Dec. 7, 1886) (remarks of Rep.Caldwell) (bill is intended to prevent repeat of "the yearof disgrace, 1876"). Or, in the words respondents usedin a prior brief to this Court: "Congress recognized that. . . it was essential to take this question out of the po-litical cauldron.'" Gore Br., No. 00-836, at 24 n.14(quoting 15 CONG. REC. 5079 (June 12, 1884) (remarksof Rep. Browne)). There is a strong federal interest inpreventing questionable applications of state law thatcould force Congress to arbitrate divisive electoral dis-putes. The very purpose of §5 was to avoid the chaosand confusion sown in the national polity by a protractedand unresolved dispute about the results of a presidentialelection--even in an individual State.If this "principle of federal law" is complied with,Bush, slip op. at 6, the determination of an electoral dis-pute is entitled to "conclusive" effect and "shall governin the counting of the electoral votes," 3 U.S.C. § 5. Asthe language and history of the statute make clear, Con-gress has asserted its federal role in the context of presi-dential elections to "assure finality" to States' determi-nations of disputes as long as they comply with § 5's re-quirements. Bush, slip op. at 6.Despite this Court's recent suggestion to the FloridaSupreme Court that it is not free to disregard the FloridaLegislature's decision to secure for the citizens of Flor-ida the benefits of § 5,15 and despite the Florida court'srecognition that "because the selection and participationof Florida's electors in the presidential election processis subject to a stringent calendar controlled by federallaw, the Florida election law scheme must yield in theevent of a conflict," Pet. App. 16a n.11, the court belowhas again ordered relief that fails to adhere to § 5's re-quirements--this time only four days before the Decem-ber 12 deadline imposed by § 5. As Chief Justice Wellsexplained in his dissenting opinion:

My succinct conclusion is that the majority'sdecision to return this case to the circuit courtfor a count of the under-votes from either Mi-ami-Dade County or all counties has no founda-tion in the law of Florida as it existed on No-vember 7, 2000, or at any time until the issuanceof this opinion.

Pet. App. 35a (Wells, C.J., dissenting). Reversal of thedecision below is essential to preserve the protectionsthat Congress sought to confer upon the States through§ 5, to secure the certainty and finality of Florida's elec-toral process, and to ensure that Florida's electoral votesare accorded proper consideration in Congress.

15 In Bush, this Court cautioned that "a legislative wish totake advantage of the safe harbor' would counsel againstany construction of [state law] that Congress might deem tobe a change in the law." Bush, slip op. at 6.

As discussed in Part I above, the Florida SupremeCourt's decision announces a substantial, judiciallymandated change in Florida law and thus fails to deter-mine the election dispute "pursuant to" the laws enactedprior to November 7, 2000. The changes in Florida lawannounced in the court's decision are numerous.First, and most fundamentally, the extraordinaryremedy provided by the Florida Supreme Court has nostatutory support. Nothing in the Florida Election Codeprovides for the procedure and results mandated by theFlorida Supreme Court, and there is no indication thatsuch a remedy was ever contemplated by the legislature.Second, as noted more fully above, see Part I.A, su-pra, the Florida Supreme Court's novel exposition of thecontest statute effectively renders superfluous the morespecific provisions regarding recounts. See, e.g., Fla.Stat. §§ 102.141(4), 102.166.16Third, by ordering that the results of a partial re-count in Miami-Dade County be included in the certifiedresults, the court effectively rewrote the statutory provi-sions in Fla. Stat. §§ 102.166(4)(d) and 102.166(5)(c)that require that "all" ballots be counted in a manual re-count.Fourth, the court's decision flatly disregarded theFlorida Election Code by authorizing courts, rather thancounty canvassing boards, to determine the validity of aballot. See Fla. Stat. § 101.5614(5).Fifth, the court departed from the statutory languageproviding county canvassing boards with discretion todetermine whether to conduct manual recounts in thefirst place, Fla. Stat. §§ 102.166(4)(c) and (5)(a)-(c), and

16 The legislatively enacted statutory scheme must be readas a whole, which includes giving effect to the detailed pro-visions specifically governing recounts. See Pet. App. 39a,42a-43a (Wells, C.J., dissenting).

instead directly ordered that manual recounts be con-ducted.Sixth, the Florida Supreme Court created a newstandard for determining whether a ballot should bedeemed a legal vote, and included "dimpled" ballots asvalid votes. Prior to the court's decision there was nosuch standard in Florida.17Seventh, the court established a new multi-tieredstandard of review in which some ballots will be re-viewed by the trial court under a de novo standard andothers will not be reviewed at all.Eighth, the court's decision ordered that votes fromPalm Beach and Miami-Dade Counties that were notsubmitted before either the seven-day statutory deadline(Fla. Stat. §§ 102.111 and 102.112) or the judiciallyfashioned November 26 deadline, must nevertheless beincluded in the statewide certification. The court's de-termination to include these votes in the final tally con-stitutes a further change in the law.Finally, the Palm Beach County Canvassing Board'sdecision to count "dimpled" or indented chads as voteswas a plain deviation from the County's prior, estab-lished written policy. The Palm Beach County guide-lines on counting ballots, issued in Nove mber 1990,make clear that "a chad that is fully attached, bearingonly an indentation, should not be counted as a vote . . .

17 The judgment below is also at odds with the previouspolicy that the counties undertook manual recounts only be-cause of evidence of machine error and not solely because ofthe alleged failure of certain voters to fully punch throughtheir ballot cards. During oral argument before this Court inBush, the Florida Attorney General's office could not name asingle instance, prior to this year's presidential election, inwhich manual recounts were undertaken for mere voter er-ror. See No. 00-836, Or. Arg. Trans. 39-40 (Dec. 1, 2000).

an indentation is not evidence of intent to cast a validvote." See Exh. J attached to Applic. for Stay, No. 00-A504; see also Trial Tr. 238-39 (testimony discussing1990 standards).18 Despite that previously announcedstandard, the Board changed its approach after the No-vember 7 election and decided to count some ballots thatwould not have complied with its prior policy.19 Thischange in policy by the organ of government granted theauthority to conduct manual recounts fails to satisfy 3U.S.C. § 5's express requirement that controversies beresolved pursuant to law as it exists prior to election day.By giving effect to that change in policy, the decisionbelow compounds the noncompliance.In each of these ways, the Florida Supreme Court'sdecision conflicts with § 5's requirements.20 By an-

18 That standard of what constitutes a vote was clearly re-flected in the instructions given to Palm Beach voters onelection day, which stated: "After voting, check your ballotcard to be sure your voting sections are clearly and cleanlypunched and there are no chips left hanging on the back ofthe card." Touchston v. McDermott, No. 00-15985, 2000WL 1781942, at *6 n.19 (11th Cir. Dec. 6, 2000) (Tjoflat, J.,dissenting).19 The Board's decision was triggered by a judicial ruling(itself a change in the law) that the Board could not have aper se rule against counting such ballots. See Florida De-mocratic Party v. Palm Beach County Canvassing Bd., No.CL00-11078-AB, Trial Tr. 244-47 (Fla. 15th Jud. Cir. Nov.15, 2000).20 Although the Florida court's decision purports to applystate law, the court was clearly cognizant of 3 U.S.C. § 5; yetits decision ultimately misinterprets that federal law and failsto heed this Court's admonition to avoid construing the Flor-ida statute in this context to create newly announced changesin law. When the resolution of a federal question turns onwhether state law has changed or a state court has adopted a

nouncing new, post-election changes in the law, theFlorida Supreme Court's decision ensures that anychange in the certified election results will not be "con-clusive" under §5. The decision thus lacks binding ef-fect on the parties and on the state election officials itseeks to command, and it places Florida's 25 electors atrisk, thereby frustrating the Florida Legislature's choicesin establishing a statutory scheme consistent with 3U.S.C. § 5.21 These actions also frustrate one of the ob-

new rule of law in violation of federal constitutional norms,this Court will examine the state court's decision. See, e.g.,Bouie v. City of Columbia, 378 U.S. 347, 353-55 (1964);NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 455(1958) (This Court's "jurisdiction is not defeated if the non-federal ground relied on by the state court is without any fairor substantial support"; "in order that constitutional guaran-ties may appropriately be enforced, [this Court must ascer-tain] whether the asserted non-federal ground independentlyand adequately supports the judgment." (internal quotationsand citations omitted)); Lindsey v. Washington, 301 U.S. 397,400 (1937) ("[W]hether the [state-law] standards of punish-ment set up before and after the commission of an offensediffer, and whether the later standard is more onerous thanthe earlier within the meaning of the constitutional prohibi-tion, are federal questions which this Court will determine foritself." (citation omitted)); see also Michigan v. Long, 463U.S. 1032, 1039 n.4 (1983) ("[W]here the non-federal groundis so interwoven with the [federal ground] as not to be an in-dependent matter, or is not of sufficient breadth to sustain thejudgment without any decision of the other, our jurisdictionis plain."); Terre Haute and Indianapolis R.R. Co. v. Indianaex rel. Ketcham, 194 U.S. 579, 589 (1904) (to decline juris-diction because state court relied on "untenable construction"of unconstitutional state law "would open an easy method ofavoiding the jurisdiction of this Court").21 The court below acknowledged that "[t]he need forprompt resolution and finality is especially critical in presi-

vious objectives of both Article II and Title 3--confidence in presidential election results, which followsfrom assurances that elections are determined underrules in effect when the votes are cast. This Court's re-versal of the Florida Supreme Court's decision is neces-sary to preserve these fundamental attributes of the fed-eral and state compact embodied in §5, a compact en-tered into by the Florida Legislature pursuant to its ex-clusive constitutional power to determine the manner ofappointing Florida's electors.III. The Florida Supreme Court's Decision Vi olates Equal Protection And Due Process GuaranteesThe Florida Supreme Court's decision is a recipe forelectoral chaos. The court below has not only condoneda regime of arbitrary, selective and standardless manualrecounts, but it has created a new series of unequal after-the-fact standards. This unfair, new process cannot besquared with the Constitution.A. Equal Protection"Undeniably the Constitution of the United Statesprotects the right of all qualified citizens to vote .. . ."Reynolds v. Sims, 377 U.S. 533, 554 (1964). "The con-

dential elections where there is an outside deadline estab-lished by federal law," Pet. App. 31a, but conceded that, inlight of its decision, "practical difficulties may well end upcontrolling the outcome of the election," id. at 32a n.21. Thecourt made no effort to explain how the arbitrary and hap-hazard recount process it had invented could properly beconducted within the time limits established by federal law.Nor did it offer any justification for its decision to effectivelyoverride the legislature's decision to secure the benefits of§ 5 for the State of Florida. Justice Harding explained thereality of the situation in his dissent by noting that the major-ity's remedy "is impossible to achieve and . . . will ultimatelylead to chaos." Id. at 56a.

ception of political equality . . . can mean only onething--one person, one vote . . . ."--"[t]he idea thatevery voter is equal to every other voter in his State,when he casts his ballot in favor of one of several com-peting candidates, underlies many of our decisions." Id.at 558 (internal citations omitted).The Equal Protection Clause prohibits governmentofficials from implementing an electoral system thatgives the votes of similarly situated voters different ef-fect based on the happenstance of the county or districtin which those voters live. See, e.g., Roman v. Sincock,377 U.S. 695, 707-12 (1964); WMCA, Inc. v. Lomenzo,377 U.S. 633, 653 (1964) (state apportionment scheme"cannot, consistent with the Equal Protection Clause,result in a significant undervaluation of the weight of thevotes of certain of a State's citizens merely because ofwhere they happen to reside").The new electoral system created by the Florida Su-preme Court is not facially neutral, but even if it were,the disparate treatment of voters based on the counties orgeographic regions in which they live would nonethelessviolate the Constitution. In O'Brien v. Skinner, 414 U.S.524 (1974), for example, this Court held unconstitu-tional the New York absentee ballot statute because itmade no provision for persons who were unable to votewhile they were incarcerated in their county of resi-dence. Under the New York statute, "if [a] citizen isconfined in the county of his legal residence he cannotvote by absentee ballot as can his cellmate whose resi-dence is in the adjoining county." Id. at 529. As a re-sult, the Court held, "New York's election statutes .. .discriminate between categories of qualified voters in away that . . . is wholly arbitrary." Id. at 530. The Courttherefore concluded that "the New York statutes denyappellants the equal protection of the laws guaranteed bythe Fourteenth Amendment." Id. at 531.Respondents attempts to distinguish O'Brien, argu-ing that it "stands only for the unremarkable propositionthat voters cannot be denied the right to vote solely be-cause of their county of residence," and Florida voters,unlike the inmates in O'Brien, have not been "denied theright to vote altogether" on that basis. Stay Opp. at 19-20. That argument, however, ignores settled equalprotection precedent, and does a significant disservice tothe fundamental right to vote. As this Court has longrecognized, the right to vote is "denied by a debasementor dilution of the weight of a citizen's vote just as effec-tively as by wholly prohibiting the free exercise of thefranchise." Reynolds, 377 U.S. at 555.22As in O'Brien and Reynolds, the necessarily dispa-rate manual recounts ordered by the Florida SupremeCourt arbitrarily treat voters differently based solely onwhere they happen to reside. For example, where thereis a partial punch or stray mark on a ballot, that ballotmay be counted as a "vote" in some counties but notothers. The court's order also requires that ballotscounted as part of the contest proceedings are evaluatedunder a different standard than ballots in other countiesthat have already completed manual recounts. Indeed,the "standards" used in those earlier manual recountsthemselves constituted equal protection violations, since,to the extent "standards" existed at all, they variedwidely from county to county, and even changed fromday to day or hour to hour within a single Floridacounty. See 00-837, Pet. at 5, 11-13.Respondents nonetheless assert that the Florida Su-preme Court's so-called "standard" based on the "clear

22 Respondents are also mistaken in suggesting that therecan be no unconstitutional vote dilution when additional"votes" are counted. Stay Opp. at 20-21. As the EleventhCircuit explained in Roe v. Alabama, 43 F.3d 574 (11th Cir.1995), if some ballots are counted improperly, other citizens'votes will be unconstitutionally diluted, even though the totalnumber of votes may increase. Id. at 581.

indication of the intent of the voter" represents "a uni-form, statewide standard" for conducting manual re-counts. Stay Opp. at 19, 22. Indeed, respondents evengoes so far as to call that infinitely elastic phrase "a clearstandard--one that has been in place in Florida .. . foryears," and one that "[t]he Florida canvassing boardsand courts have long implemented." Id. at 22-23. Re-spondents' present characterization is strikingly differentfrom reality and the position respondents took before thestate courts. The Gore respondents conceded to theFlorida Supreme Court in the earlier case involving thecertification deadline that "different canvassing boardshave used different standards." Gore Answer Br., Nos.SC 00-2346, -2348 and -2349, at vi <http://news.find-law.com/cnn/docs/election2000/fsc1119gorerply.pdf>.In addition, the decision below manifestly violatesequal protection by mandating the inclusion of 168 votesbased on a manual recount of 20 percent of the ballots inMiami-Dade County (from predominantly Democraticprecincts), while ordering that only approximately 9,000of the remaining 80 percent of the ballots be recounted--even though many of those ballots were cast by votersin predominantly Hispanic (and Republican-leaning)precincts. This patent violation is compounded by thefact that the judgment below disenfranchises numerousvoters in Miami-Dade County and elsewhere whose bal-lots were rejected by the machine count as so-called"over-votes" but might upon manual inspection reflect aclear intent to vote for a particular candidate. See Pet.App. at 38a-39a n.26 (Wells, C.J., dissenting) (empha-sizing disparate treatment of over-votes).23

23 This disparate treatment of predominantly Hispanic com-munities in Miami-Dade County also violates §2 of the Vot-ing Rights Act. See Bush Amended Br., No. SC00-2431, at35 (Dec. 6, 2000). This Court has recognized that faciallyneutral changes in governmental structure that effectivelydiscriminate against protected classes violate the Equal Pro-

The manual recount in Miami-Dade and the rest ofthe counties in Florida presents yet another intractableequal protection problem. The undisputed evidence attrial established that the very process of segregating un-dervotes from the rest of the ballots inevitably will iden-tify as undervotes ballots that were already counted inthe first (or second) machine counts, but not in the thirdpass through the machine. Trial Tr. 549 (34 precincts inMiami-Dade had more undervotes after segregating un-dervotes than were reported after the first recount).Votes that have already been included in the count maybe counted again, after examination, as undervotes.Such double-counting of votes is a plain dilution of thevotes of the remaining voters in violation of the equalprotection clause. That equal protection violation withrespect to Miami-Dade has already occurred, and wouldbe exacerbated if more ballots were counted. Moreover,the decision below orders the rest of the counties inFlorida to engage in the same sort of selective manualrecount. Some "undervotes" would be segregated in thatprocess that have already been included in the certifiedcount, with the result that some votes would be countedand included twice.By requiring further inconsistent and standardlessrecounts, the court's order guarantees disparate treat-ment for similarly situated voters. The equal protectionviolations are compounded by the fact that the courtadopted a standard of "selective deference" to the deci-sions of the county canvassing boards. This consciousdiscrimination among voters on the basis of their county,or even precinct, of residence, violates the fundamentalprinciple of equal protection that voters cannot be sub-

tection Clause, see, e.g., Washington v. Seattle School Dist.No. 1, 458 U.S. 457 (1982); Hunter v. Erickson, 393 U.S.385 (1969); Reitman v. Mulkey, 387 U.S. 369 (1967), and noless is true for changes in government operations that dilutethe fundamental right to vote.

jected to disparate treatment "merely because of wherethey reside[ ]." Reynolds, 377 U.S. at 557; see id. at 566("Diluting the weight of votes because of place of resi-dence impairs basic constitutional rights under the Four-teenth Amendment just as much as invidious discrimina-tions based upon factors such as race or economicstatus.") (citations omitted).24B. Due ProcessThe Florida Supreme Court's radical departure frompreexisting Florida law, and its failure to provide andapply clear and consistent guidelines to govern the man-ual recounts, also violates the Due Process Clause. SeeLogan v. Zimmerman Brush Co., 455 U.S. 422, 432(1982). The facts here present "an officially-sponsoredelection procedure which, in its basic aspect, [is]flawed.'" Duncan v. Poythress, 657 F.2d 691, 703 (5thCir. 1981) (quoting Griffin v. Burns, 570 F.2d 1065,1077-78 (1st Cir. 1978)), cert. dismissed, 459 U.S. 1012(1982).As explained above, the Florida Supreme Court hasdeviated substantially from the election law and prac-tices in place prior to election day by ordering that themanual recount occur under circumstances and stan-dards that have never before existed in Florida law, in-cluding fundamentally changing the meaning and legalconsequences of certification of election results. See

24 Respondents incorrectly assert that the one-person-one-vote rule of the Fourteenth Amendment has no application to"at-large" elections based on a "statewide vote." Stay Opp.at 21. A voting scheme that places more weight on votesfrom a particular county, particularly where that county isdominated by one political party, violates equal protectionprinciples regardless of whether the election involves a"statewide" vote. Roe, 43 F.3d at 577, 581 (invalidating stateballot scheme in statewide elections).

Part I, supra. The court has therefore changed the rulesyet again, and as a result, the contest is being determinedby "rules" that were not in place when the votes werecast--in plain violation of the Due Process Clause. SeeLogan, 455 U.S. at 432; Duncan, 657 F.2d at 703; Grif-fin, 570 F.2d at 1077-79; Briscoe v. Kusper, 435 F.2d1046 (7th Cir. 1970).In Roe v. Alabama, 43 F.3d 574 (11th Cir. 1995), forexample, the court of appeals held that the State of Al a-bama violated a group of absentee voters' First andFourteenth Amendment rights when it departed from theState's longstanding policy of not counting unwitnessedabsentee ballots. The court stated that such a post-election change in the way absentee ballots are countedviolates fundamental fairness because it "would dilutethe votes of those who met the requirements" and be-cause "the change in the rules after the election wouldhave the effect of disenfranchising those who wouldhave voted but for the inconvenience imposed by the[requirements]." Id. at 581. Here, as in Roe, ballots thatwould not have been counted as lawful votes on electionday will necessarily have their legal status changed as adirect consequence of selective, subjective, standardless,and shifting methods of manual recounting.It cannot be seriously argued that there have notbeen post-election changes to the "standards" used tocount votes. Since 1990, for example, Palm BeachCounty has had a policy against counting mere indentedor "dimpled" chad as valid votes. The Chairman of thePalm Beach County Canvassing Board testified thatupon commencing the sample recount, the Board usedthese established standards declaring that "a chad that isfully attached, bearing only an indentation, should notbe counted as a vote." Trial Tr. at 239; see also Exh. J.,Applic. For Stay, No. 00A504 (1990 policy declaringthat a mere indentation "is not evidence of intent to casta valid vote"). That understanding of what constitutes alegal vote was clearly reflected in the instructions givento voters on election day. See n.18, supra. The countycanvassing board, however, changed that policy post-election after litigation brought by Vice President Goreand his allies to require a more discretionary standard.See Don van Natta Jr. with David Barstow, ElectionsOfficials Focus of Lobbying From Both Camps, N.Y.TIMES, Nov. 18, 2000, at A1. The "standards" used byother manual recount counties have undergone similarchanges, Trial Tr. at 245-46, 497, 499 (Miami-Dade Su-pervisor would not count nonconforming ballot unless"there was a hanging chad by two points" during thesample recount, but then examined light penetration forthe full recount). The decision below only magnifies thedue process problem by replicating such changes, on aselective and unfair basis, throughout the State. Thosechanges alone constitute a clear constitutional viola-tion.25Respondents attempt to distinguish the due processcases upon which petitioners rely on the ground that thevoter plaintiffs in cases such as Roe and Briscoe reliedto their detriment on the preexisting election laws in de-termining how to cast their ballots, whereas in this case,no voter could have relied upon the standards by whichvoter intent is determined in voting. Stay Opp. at 22.Respondents are mistaken. Just as in Roe, Florida vo tersin, for example, Palm Beach County relied upon thedefinition of a legally valid vote reflected in the voterinstructions they were given. Pursuant to those stan-dards, voters who made some minor mark on their ballotbut ultimately determined not to vote for any presiden-

25 Respondents' reliance (Stay Opp. at 21) on Eastern En-ters. v. Apfel, 524 U.S. 498 (1998), is misplaced. That casedid not involve the fundamental right to vote. Moreover, theunstructured and chaotic procedures mandated by the FloridaSupreme Court are "arbitrary and irrational," and thereforewould plainly fail the due process standard articulated in thatcase. Id. at 548 (Kennedy, J., concurring).

tial candidate had no notice whatsoever that that minormark could later be counted as a vote. If they had re-ceived such notice, they could have examined their bal-lots after voting, determined that some minor mark ap-peared on the ballot, and requested a new one or other-wise corrected the stray mark. See Trial Tr. at 456(voter who may have dimpled his ballot by "plac[ing thestylus] over the name of one of the candidates," beforedeciding he did not want to cast a vote for President).Moreover, the candidates were also forced to makedecisions regarding, inter alia, whether or not to seekmanual recounts in certain counties (or how to respondto such recounts requested by their opponents). Thesedecisions, like the decision of the voters describedabove, turned in part on the candidates' assessment ofthe kinds of standards and processes in place prior to theelection, including the procedures that had been used inprior recounts. Thus, respondents' assertion that no onecould have meaningfully relied upon the standards fordetermining voter intent in place on election day is sim-ply mistaken.In addition, if the State of Florida wishes to imple-ment a manual recount procedure, it must ensure thatmeaningful guidelines are established for determiningwhether and how to conduct such a recount, rather thanleaving such crucial decisions to the unbridled discretionand arbitrary decisionmaking of local election officialsand as-yet unspecified other individuals who may have akeen personal interest in the outcome of an election.The court's failure to provide such guidelines constitutesa clear vi olation of the Due Process Clause.With humans making subjective determinationsabout an absent voter's intent, without standards estab-lished by law, there is a very substantial risk that themethod for determining how to count a vote will be in-fluenced, consciously or unconsciously, by individualdesire for a particular result. That risk is heightenedsignificantly here because of the irreversible damagedone to the ballots during the recount processes and theclear errors that have occurred during the manual re-counts.26 Further manual recounts, by another varyingand inconsistent set of arbitrary "standards," will not beaccurate. They will simply compound the unfair andstandardless methods that have been the hallmark of theFlorida recount. As Chief Justice Wells warned in hisdissenting opinion below: "The majority returns thecase to the circuit court for this partial recount of under-votes on the basis of unknown or, at best, ambiguousstandards with authority to obtain help from others, thecredentials, qualifications, and objectivity of whom aretotally unknown. That is but a first glance at the impon-derable problems the majority creates." Pet. App. 35a.Finally, the chaotic and unfair procedures mandatedby the Florida Supreme Court effectively deny the par-ties any meaningful opportunity to raise objections toballot determinations made by nonjudicial counters dur-ing the manual recount, and preclude any chance for ju-dicial review of those determinations. Under the deci-sion below, the trial court delegates its judicial role un-der Fla. Stat. §102.168 to various county officials andother counters, and the trial court lacks the opportunityto review the ballots itself to form its own understandingof a particular voter's intent. Such sweeping denial ofthe opportunity to raise objections and obtain meaning-ful judicial review plainly violates the Due ProcessClause. See, e.g., Brinkerhoff-Faris Trust & Sav. Co. v.Hill, 281 U.S. 673, 678 (1930).

26 For example, during the manual recount process, ballotswere treated roughly and dropped, causing serious and mate-rial damage to the ballots, including dislodging and removing"chads" from ballots. Trial Tr. at484-85, 505-06. This typeof degradation obviously limits the accuracy of each succeed-ing recount. See also 00-837, Pet. at 10-11.

CONCLUSIONThe judgment of the Supreme Court of Floridashould be reversed.Respectfully submitted.MICHAEL A. CARVIN
COOPER, CARVIN &
ROSENTHAL, P.L.L.C.
1500 K Street, N.W.
Suite 200
Washington, D.C. 20005
(202) 220-9600

BARRY RICHARD
GREENBERG TRAURIG, P.A.
101 East College Avenue
Post Office Drawer 1838
Tallahassee, FL 32302
(850) 222-6891

GEORGE J. TERWILLIGER III
TIMOTHY E. FLANIGAN
WHITE & CASE LLP
601 13th Street, N.W.
Washington, D.C. 20005
(202) 626-3600
THEODORE B. OLSON
Counsel of Record
DOUGLAS R. COX
THOMAS G. HUNGAR
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036
(202) 955-8500

BENJAMIN L. GINSBERG
PATTON BOGGS LLP
2550 M Street, N.W.
Washington, D.C. 20037
(202) 457-6000

WILLIAM K. KELLEY
Notre Dame Law School
Notre Dame, IN 46556

JOHN F. MANNING
435 W. 116th Street
New York, N.Y. 10027

BRADFORD R. CLARK
2000 H Street, N.W.
Washington, D.C. 20052
Counsel for PetitionersDecember 10, 2000

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