US Supreme Court Briefs

No. 00-836========================================In the Supreme Court of the United States--------------------George W. Bush,                                Petitioner,vs.Palm Beach County Canvassing Board, et al.,                               Respondents.--------------------On Petition For a Writ Of CertiorariTo The Supreme Court Of Florida--------------------BRIEF OF THE STATES OF IOWA, CALIFORNIA,CONNECTICUT, HAWAII, INDIANA, MAINE,MARYLAND, MASSACHUSETTS, MONTANA,NEVADA, NEW MEXICO, OKLAHOMA,OREGON, AND RHODE ISLAND AS AMICI CURIAEIN SUPPORT OF RESPONDENTS--------------------                Thomas J. Miller                                Attorney General of Iowa                    *Dennis W. Johnson                              Solicitor General of Iowa                   Tam B. Ormiston                                 Deputy Attorney General                       Hoover State Office Building                  Des Moines, Iowa 50319                        (515) 281-5164                              *  Counsel of Record          [additional counsel listed on inside cover]========================================BILL LOCKYER            JOSEPH P. MAZUREK    Attorney General        Attorney General     State of California     State of Montana     RICHARD BLUMENTHAL      FRANKIE SUE DEL PAPA  Attorney General        Attorney General     State of Connecticut    State of Nevada      EARL I. ANZAI           PATRICIA A. MADRID   Attorney General        Attorney General     State of Hawaii         State of New Mexico  KAREN M.                DREW EDMONDSON         FREEMAN-WILSON        Attorney General     Attorney General        State of Oklahoma    State of Indiana                             ANDREW KETTERER         HARDY MYERS          Attorney General        Attorney General     State of Maine          State of Oregon      J. JOSEPH CURRAN, JR.   SHELDON WHITEHOUSE   Attorney General        Attorney General     State of Maryland       State of Rhode IslandTHOMAS F. REILLY                             Attorney General                             Commonwealth of Massachusetts                 








    1. The State Legislatures Are Vested Withthe Power to Enact Statutory SchemesRegulating the Conduct of Elections

    2. The State Judiciaries Are Vested With thePower to Interpret the State Election Codes


    1. The Florida Supreme Court's Decision Did NotConstitute A "Post-Election" Change in the Law

    2. The Florida Supreme Court Did Not EncroachUpon the Power of the Legislature




This case comes before the Court under the mostextraordinary circumstances. The tumultuous presidentialelection has created an emotionally charged atmosphere andraised a multitude of issues in the state and federal courts, manyof which are questions of first impression. At the core of thiscontroversy are basic questions of federalism which could affectthe delicate relationship between the federal and stategovernments, and the judicial branches of those governments.These principles, which are basic to our federal system ofgovernment, must not be overlooked in the midst of heatedpolitical rhetoric.

The amici States have a strong interest in preserving therights of the individual states to control the election ofpresidential electors. The amici States want to ensure that thestate judiciaries remain free to interpret state laws governingelections, without interference by the federal courts, as theyhave done for nearly 200 years. And the amici States have acompelling interest in guarding against the erosion of thesefundamental principles of federalism in any way that couldimpair the rights of the states to govern their affairs in othermatters that have been entrusted to them by the United StatesConstitution.

This Court has a unique opportunity to clarify for theAmerican public the basic workings of the state and federaljudiciaries and their proper roles in our federal and stateschemes of government. The amici States believe that thisCourt can take a significant step toward healing the nation fromthe divisiveness that has resulted from the presidential electionand in giving credibility to the final result of this election whatever that might be. The amici States respectfully requestthis Court to undertake that process with due regard forfundamental principles of federalism.


The fundamental question before the Court is whether thestate or federal courts are the final arbiters of state law. Thiscase is based on a claim that the Florida Supreme Courtretroactively changed the law and impinged on the FloridaSecretary of State's discretion when it interpreted Florida'selection code, and thereby violated the due process clause ofthe United States Constitution and 3 U.S.C. § 5. Closely relatedis the claim that the Florida Supreme Court changed theelection laws passed by the Florida legislature, in derogation ofthe legislature's constitutional right to control the manner inwhich presidential electors are appointed pursuant to Article II,section 1 of the United States Constitution.

Because the actions of the Florida Supreme Court ininterpreting state law are being reviewed by the United StatesSupreme Court, fundamental questions of federalism becomeparamount. State courts traditionally have been charged withthe responsibility of interpreting state law. For nearly 200 years,this Court has deferred to state courts on questions regarding themeaning of state laws. Any departure from that tradition wouldsignificantly alter fundamental notions of federalism.

There is no justification in this case for such an erosion offederalism. The Florida Supreme Court did not retroactivelychange the law. It simply interpreted a state law, according totraditional rules of statutory construction, with the result beingthat the Florida Supreme Court explained its interpretation ofwhat the statutory law had been since the date it was adopted.The Florida Supreme Court was guided by the cardinal principlethat its task, in interpreting ambiguous and inconsistent statutes,was to give effect to the intent of the Florida legislature.

If this Court were to superimpose its judgment on that ofthe Florida Supreme Court in matters of state law, such actionwould constitute a remarkable intrusion by the federalgovernment into the province of the state judiciary. It wouldconstitute a significant erosion of fundamental principles offederalism, and could have effects far beyond this case.

If this Court were to strike down the Florida SupremeCourt's interpretation of a Florida statute as a retroactive changeof the law, it would find itself on a slippery slope of claimsalleging "retroactive" application of laws and ex post facto lawswhenever a court interpreted a statute for the first time. Indeed,the federal courts themselves would be beset with claims thatthey had retroactively changed the laws whenever they engagedin statutory construction.

Under basic principles of comity and federalism, this Courtshould respect the Florida Supreme Court as the final arbiter ofstate law and dismiss this petition.


  1. Basic Concepts of Federalism Are At the Core of ThisCase

Amidst the furor over the presidential election, it isimportant to reflect on one of the basic principles underlying ourdemocracy:

Federalism was our nation's own discovery. TheFramers split the atom of sovereignty. It was thegenius of their idea that our citizens would have twopolitical capacities, one state and one federal, eachprotected from incursion by the other. The resultingConstitution created a legal system, unprecedented inform and design, establishing two orders ofgovernment, each with its own direct relationship, itsown privity, its own set of mutual rights andobligations to the people who sustain it and aregoverned by it. It is appropriate to recall these origins,which instruct us as to the nature of the two differentgovernments created and confirmed by theConstitution.
U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995)(Kennedy, J., concurring).

The dual sovereignty of the states and the federalgovernment is manifested in the Constitution both implicitly andexplicitly. The states' residual sovereignty was implied byArticle I, section 8, which conferred upon Congress only certaindiscrete, enumerated powers. The sovereignty of the states waslater explicitly recognized by the Tenth Amendment, whichacknowledged that those "powers not delegated to the UnitedStates by the Constitution, nor prohibited by it to the States,are reserved to the States respectively, or to the people." Printzv. United States, 521 U.S. 898, 919-20 (1997).

No power of the states is more clearly recognized in theConstitution than the power to control elections particularlywith regard to the appointment of electors for President of theUnited States. See U.S. Const. art. II, §1. It is thatconstitutional power in particular, and the sovereign powers ofthe states in general, which are now being challenged beforethis Court.

  1. The Constitution and Congress Have Given The StatesConsiderable Power to Control Elections for Presidentof the United States.

  1. The State Legislatures Are Vested With the Powerto Enact Statutory Schemes Regulating theConduct of Elections

The authority to control the appointment of electors forPresident of the United States is vested in the states by virtue ofboth the United States Constitution and federal statute. ArticleII, section 1, clause 2 of the Constitution gives the statesexclusive control over the process by which presidential electorsare chosen: "Each state shall appoint, in such manner as theLegislature thereof may direct, a Number of Electors, equal tothe whole Number of Senators and Representatives to which theState may be entitled in the Congress."U.S. Const., art. II, § 1, cl.2 (emphasis added).

Congress has confirmed the power of the states in this areaby authorizing the states to establish procedures for conclusivelyresolving disputes over the appointment of electors:

If any State shall have provided, by lawsenacted prior to the day fixed for theappointment of the electors, for its finaldetermination of any controversy or contestconcerning the appointment of all or any ofthe electors of such State, by judicial or othermethods or procedures, and suchdetermination shall have been made at leastsix days before the time fixed for the meetingof the electors, such determination . . . shallbe conclusive, and shall govern in thecounting of the electoral votes as provided inthe Constitution . . . .
3 U.S.C. § 5.

This Court has recognized the plenary authority of the statelegislatures to control the manner of selecting presidentialelectors. In McPherson v. Blacker, 146 U.S. 1 (1892), the Courtheld that the Constitution "recognizes that the people actthrough their representatives in the legislature, and leaves it tothe legislature exclusively to define the method of effecting theobject [of selecting presidential electors]." Id. at 27. (Emphasisadded).

The states have been given similar authority to control themanner in which United States Senators and members of theHouse of Representatives are elected to office. U.S., § 4. Although those powers are not as plenary as thepowers regarding presidential electors, they are still quiteextensive: "This court has recognized the breadth of thosepowers . . . ." Roudebush v. Hartke, 405 U.S. 15, 24 (1972).See Burdick v. Takushi, 504 U.S. 428, 433 (1992); Munro v.Socialist Workers Party, 479 U.S. 189, 194-96 (1986); Andersonv. Celebrezze, 460 U.S. 780, 788 (1983).

This Court has acknowledged that, as a practical matter,there must be substantial regulation of elections if they are to befair and honest and orderly. As a result, "the States haveevolved comprehensive, and in many respects complex, electioncodes regulating in most substantial ways, with respect to bothfederal and state elections, the time, place, and manner ofholding primary and general elections, the registration andqualifications of voters, and the selection and qualification ofcandidates." Storer v. Brown, 415 U.S. 724, 730 (1974)(emphasis added).

  1. The State Judiciaries Are Vested With the Powerto Interpret the State Election Codes

The constitutional provisions and federal law vesting powerin the states to control the manner of elections and, in particular,the manner of selecting the electors for President of the UnitedStates, have necessitated the adoption of comprehensive, oftencomplex election codes by the states. The statutory schemeenacted by Florida, at issue in this case, is but one example ofsuch a scheme. A foreseeable, indeed, unavoidable consequenceof detailed legislative schemes of this type is that statutoryambiguities and inconsistencies arise. When this occurs, it isincumbent upon the judicial branch to interpret those statutes, toclarify their ambiguities, and to resolve their inconsistencieswhere possible. "The judicial department of every governmentis the rightful expositor of its laws . . . ." Bank of Hamilton v.Lessee of Dudlee, 27 U.S. 492, 524 (1829).

In our federal system based upon dual sovereignty, whenquestions of state law arise, the state judiciary is the proper andfinal arbiter of the meaning of the state statute. This wasexplained as follows by Chief Justice Marshall:

This Court has uniformly professed itsdisposition, in cases depending on the laws ofa particular State, to adopt the constructionwhich the Courts of the State have given tothose laws. This course is founded on theprinciple, supposed to be universallyrecognised, that the judicial department ofevery government, where such departmentexists, is the appropriate organ for construingthe legislative acts of that government . . . .We receive the construction given by theCourts of the nation as the true sense of thelaw, and feel ourselves no more at liberty todepart from that construction, than to departfrom the words of the statute . . . . [T]heconstruction given by the Courts of theseveral States to the legislative acts of thoseStates, is received as true, unless they comein conflict with the Constitution, laws, ortreaties of the United States.
Elmendorf v.Taylor, 23 U.S. 152, 159-60 (1825).

Indeed, as a general proposition, it is beyond dispute that,"[w]here a state court has interpreted a provision of state law,[the Court] cannot ignore that interpretation, even if it is not onethat we would have reached if we were construing the statute inthe first instance." R.A.V. v. City of St. Paul, 505 U.S. 377, 412(1992). Even where this Court is empowered to protect anunderlying federal right that is threatened by the interpretationof state law, it will not do so unless the interpretation is "socertainly unfounded that it properly may be regarded asessentially arbitrary." If the interpretation has "fair support" instate law, the Court is "not at liberty to inquire whether it is rightor wrong, but must accept it, as [it does] other state decisions ofnon-Federal questions." Enterprise Irrigation Dist. v. FarmersMut. Canal Co., 243 U.S. 157, 164 (1917).

When the states were given the power to regulate themanner in which elections are conducted, that power necessarilyinvolved both the state legislatures and the state judiciaries. Thelegislatures were given the authority and the responsibility toenact appropriate statutory schemes to govern the conduct ofelections. The state judiciaries were charged with theresponsibility to interpret those statutes, just as they interpret allother statutes enacted by their state legislatures. And in ourfederalist system of dual sovereignty, the federal courts defer tothe state courts on the interpretation of state law. Nearly twocenturies of precedent and time-honored principles of federalismmandate that the Florida Supreme Court's interpretation ofFlorida law be considered final.

  1. There Is No Reason In This Case For The Court toAbandon Basic Principles of Federalism By InterferingWith The Decision of The Florida Supreme Court

The petitioner has attempted to federalize a state law issueby characterizing the Florida Supreme Court's decision as onewhich substantively changed Florida's election laws after thedate of the election and infringed upon the right of thelegislature to control the manner of selecting presidentialelectors.1 An examination of the Florida Supreme Court's

1 It should be noted that this case does not involve claims that theFlorida election code, as interpreted by the Florida Supreme Court,violates the Voting Rights Act, 42 U.S.C. § 1971, or the First orFourteenth Amendments to the United States Constitution because ofany course of conduct sanctioned by the Florida Supreme Court. Ifsuch prohibited conduct occurred as a result of state legislative orjudicial action, this Court would become involved. See, e.g., Williamsv. Rhodes, 393 U.S. 23 (1968). No such prohibited conduct is allegedin this case. The constitutional claims before this Court ariseprimarily out of the fact that the Florida Supreme Court interpretedthe Florida election code after election day, thereby allegedlyretroactively changing the law in violation of due process and other

decision indicates, however, that it was nothing more than thenormal exercise by the judiciary of its authority to interpret statelegislation, to clarify ambiguities in that legislation, and toresolve inconsistencies in that legislation, all for the purpose ofeffectuating the intent of the Florida legislature. Accordingly,this Court should not permit itself to be drawn into reviewingthe substance of the Florida Supreme Court's interpretation.

  1. The Florida Supreme Court's Decision Did NotConstitute A "Post-Election" Change in the Law

The Florida Supreme Court's decision consisted entirely ofinterpreting and reconciling Florida statutes which wereinconsistent and ambiguous. By interpreting the statutes afterthe date of the election, however, the Florida Supreme Court didnot engage in "post-election" lawmaking. Indeed, this Court hasrecognized that "judicial construction of a statute is anauthoritative statement of what the statute meant before as wellas after the decision of the case giving rise to that construction."Rivers v. Roadway Express, Inc., 511 U.S. 298, 313 (1994)(emphasis added). "[W]hen this Court construes a statute, it isexplaining its understanding of what the statute has meantcontinuously since the date when it became law." Id. at 313n.12. See Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 215(1995). Consistent with these principles, the decision of theFlorida Supreme Court constitutes an explanation by that courtof its understanding of what the Florida statutes have meantsince the date they became law, which was prior to the election.That does not constitute "post-election" lawmaking.

The analysis utilized by the Florida Supreme Court ininterpreting the Florida election statutes was neither unusual norsurprising. The Florida Supreme Court attempted to determine

constitutional provisions. If the Florida court had interpreted theFlorida election code before the election, it is unlikely that this casewould be before the Court.

the legislature's intent, "the polestar that guides a [Florida]court's inquiry into the provisions of the Florida Election Code."(App.23a). The Court followed traditional rules of statutoryconstruction throughout its opinion. (App. 23-26a). It appliedthe rule that specific statutes control general ones, which thisCourt also uses routinely. See, e.g. Green v. Bock LaundryMach. Co., 490 U.S. 504, 524-26 (1989); Radzanower v. ToucheRoss & Co., 426 U.S. 148, 151 (1976). It relied on the canonthat newer statutes control older ones, a perfectly logicalpresumption that this Court also applies. See, e.g., United Statesv. Estate of Romani, 523 U.S. 517, 532 (1998). The Courtapplied the rule that statutes should be interpreted in a mannerthat avoids rendering other statutory provisions meaningless orabsurd, an approach that also is utilized by this Court. See, e.g.,Ratzlaf v. United States, 510 U.S. 135, 141 (1994); Griffin v.Oceanic Contractors, Inc., 458 U.S. 564, 575 (1982). Finally,the Florida Supreme Court applied the canon that statutes shouldbe read in their entirety, which is also applied in this Court. See,e.g., FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120,120 S. Ct. 1291, 1300 (2000). Against this background, theFlorida Supreme Court plainly did not "enact" new law; itsimply interpreted laws which were in existence prior to electionday.

  1. The Florida Supreme Court Did Not EncroachUpon The Power of The Legislature

Petitioners's argument that the Florida Supreme Courtencroached upon the power of the Florida legislature to controlthe manner in which presidential electors are appointed, inviolation of Article II, section 1 of the Constitution, ignores thereality of how state governments function. The Floridalegislature had a duty under the Constitution and federal law toenact legislation governing the manner in which presidentialelectors would be elected. It was the proper function of thejudiciary to interpret those election laws when interpretationbecame necessary as a result of ambiguities, inconsistencies, orother uncertainties in the meaning of those laws. Rather thanencroaching on the authority of the legislature, the FloridaSupreme Court was attempting to give effect to the legislature'sstatutory scheme. That is exactly what a state supreme court issupposed to do. Therefore, it is incumbent upon this Court, asa federal court, to respect the Florida Supreme Court'sinterpretation of its state election laws. McPherson v. Blacker,146 U.S. 1, 23 (1892) ("We are not authorized to revise theconclusions of the state court on these matters of local law.")

  1. Overturning the Decision of the Florida Supreme CourtWould Have Serious Adverse Consequences for Boththe Federal and State Judiciaries

The states are clearly charged with the duty to establish themanner of selecting presidential electors. The Florida legislaturehas performed its function by adopting the state election laws inquestion. The Florida Supreme Court, likewise, has performedexactly as a Supreme Court should. It would be highlyoffensive to basic principles of federalism for this court tosuperimpose its judgment on the Florida Supreme Court or todisagree or change the interpretation of state law rendered bythat court. Indeed, such action by this Court would be aremarkable intrusion into the province of the state judiciary.

If this Court accepts the claim that the Florida SupremeCourt invaded the province of the legislature by merelyinterpreting the Florida election code, it will fundamentally alterthe separation of powers that presently exists between thelegislative and judicial branches of government. Such a decisionby this Court would diminish the authority of the state judiciaryto be the final arbiter of the meaning of state law, leaving everystate court decision open to appeal to the federal courts on dueprocess grounds. And, if this Court superimposes its judgmenton that of the Florida Supreme Court, it might find itself or thelower federal courts embroiled in the process of managing thefinal resolution of the Florida election disputes.

If this Court were to hold that the Florida Supreme Court'sinterpretation of Florida law constituted a retroactive "change"in the law, rather than an explanation of what the law hadalways been, this Court would be opening the door to a flood ofdue process claims. Whenever a court adopted a newinterpretation of a statute, or answered a question of statutoryinterpretation for the first time, individuals adversely affected bythe decision could claim a violation of due process rights.Whenever the courts were required to interpret statutes withcivil or criminal penalties, such as consumer fraud statutes, toapply to new factual situations, adversely affected parties couldclaim a violation of due process rights. Any new interpretationof a criminal statute could lead to claims of ex post facto laws inviolation of Article I, section 10 of the Constitution. Indeed,this Court itself engages in statutory construction of federalstatutes. Litigants could very well claim that new interpretationsof federal statutes by this Court, or other federal courts, give riseto claims that their due process rights were violated.

Although the presidential election is unquestionablyimportant to the people of this nation, upholding the basicprinciples of federalism is equally important and perhaps couldhave longer lasting effects on ths nation than the decision as towho will be our next president. This Court should follow well-recognized principles of comity and federalism and respect thedecision of the Florida Supreme Court as a bindinginterpretation of Florida law, regardless of whether it agreeswith the substance of the Florida court's analysis. To dootherwise would plunge this Court into the province of the statejudiciary, in substantial derogation of the basic principles offederalism which have guided this country since its inception.


This Court should be guided by fundamental principles offederalism in resolving the issues presented by this highlycharged case. The matters presented to the Court are trulymatters of state law, and it is appropriate that they be resolvedby the Florida Supreme Court, without interference from thefederal government. The Court is respectfully urged to dismissthe petition.

Attorney General of Iowa

Solicitor General of Iowa
Deputy Attorney General
Hoover State Office Building
Des Moines, Iowa 50319
(515) 281-5164

* Counsel of Record

BILL LOCKYER            JOSEPH P. MAZUREKAttorney General        Attorney GeneralState of California     State of MontanaRICHARD BLUMENTHAL      FRANKIE SUE DEL PAPAAttorney General        Attorney GeneralState of Connecticut    State of NevadaEARL I. ANZAI           PATRICIA A. MADRIDAttorney General        Attorney GeneralState of Hawaii         State of New MexicoKAREN M.                DREW EDMONDSON  FREEMAN-WILSON        Attorney GeneralAttorney General        State of OklahomaState of IndianaANDREW KETTERER         HARDY MYERSAttorney General        Attorney GeneralState of Maine          State of OregonJ. JOSEPH CURRAN, JR.   SHELDON WHITEHOUSEAttorney General        Attorney GeneralState of Maryland       State of Rhode IslandTHOMAS F. REILLYAttorney GeneralCommonwealth of Massachusetts

NOVEMBER 28, 2000

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