US Supreme Court Briefs

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


The Supreme Court of Florida has held that the Sec- retary of State cannot certify election results in accor- dance with preexisting Florida law and must instead wait for the statutorily untimely results of manual re- counts conducted in three Florida counties before certi- fying the results of the November 7, 2000 presidential election. This holding raises three substantial federal questions that warrant immediate review by this Court: 1. Whether post-election judicial limitations on the discretion granted by the legislature to state executive officials to certify election results, and/or post-election judicially created standards for the determination of con- troversies concerning the appointment of presidential electors, violate the Due Process Clause or 3 U.S.C. § 5, which requires that a State resolve controversies relating to the appointment of electors under "laws enacted prior to" election day. 2. Whether the state court's decision, which cannot be reconciled with state statutes enacted before the elec- tion was held, is inconsistent with Article II, Section 1, clause 2 of the Constitution, which provides that electors shall be appointed by each State "in such Manner as the Legislature thereof may direct." 3. Whether the use of arbitrary, standardless, and selective manual recounts that threaten to overturn the results of the election for President of the United States violates the Equal Protection or Due Process Clauses, or the First Amendment.


The following individuals and entities are parties to the proceeding in the court below: Governor George W. Bush, as candidate for Presi- dent; Katherine Harris, as Secretary of State, State of Florida; Katherine Harris, Bob Crawford, and Laurence C. Roberts, as members of the Elections Canvassing Commission; Matt Butler; Palm Beach County Canvass- ing Board; Broward County Canvassing Board; Broward County Supervisor of Elections; Robert A. Butterworth, as Attorney General, State of Florida; Florida Democ- ratic Party; and Vice President Albert Gore, Jr., as can- didate for President.



Page QUESTIONS PRESENTED....................................i PARTIES TO THE PROCEEDING ............................ii OPINIONS BELOW ........................................1 JURISDICTION ..........................................1 CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED......................................2 STATEMENT OF THE CASE..................................4 I. The Underlying Litigation........................4 A. The Recount Authority Litigation..............5 B. The Recount Certification Litigation..........7 II. Proceedings In The Florida Supreme Court ...........................................8 A. The State Court's Decision ...................8 B. The Federal Issues Were Raised And Ruled On Below.................................9 REASONS FOR GRANTING THE PETITION.....................10 I. Review Is Warranted In This Case Because The Florida Supreme Court Disregarded Federal Law Governing Disputes Over The Appointment Of Electors........................................12 II. Review Is Warranted Because The Court Below Disregarded Constitutional Limitations On The Appointment Of Electors........................................18 III. Review Is Warranted Because The Supreme Court Of Florida's Decision Conflicts With This Court's And Eleventh Circuit Precedent And The Recount Procedures Sanctioned By The Court Below Do Not Pass Constitutional Muster..........................................20 A. Equal Protection ............................21 B. Due Process..................................23 C. First Amendment .............................26 CONCLUSION............................................27


Petitioner George W. Bush, the candidate of the Re- publican Party for the office of President of the United States, respectfully prays that a writ of certiorari be is- sued to review the judgment of the Supreme Court of Florida in this case. In plain contravention of the re- quirements of the Constitution of the United States and federal law, the state supreme court has embarked on an ad hoc, standardless, and lawless exercise of judicial power, which appears designed to thwart the will of the electorate as well as the considered judgments of Flor- ida's executive and legislative branches. Because the selection of presidential electors is governed directly by the Constitution and congressional enactments, as well as by state law, the court's decision involves issues of the utmost federal importance.


The opinion of the Supreme Court of Florida (App., infra, 1a-39a) is not yet reported. The orders of the Cir- cuit Court of the Second Judicial District for the County of Leon, Florida (App., infra, 43a-44a & 45a-51a) are not reported.


The judgment of the Supreme Court of Florida was entered on November 21, 2000. The jurisdiction of this Court rests upon 28 U.S.C. § 1257. The decision below compels the Florida Secretary of State and Elections Canvassing Commission to accept, and include in the State's certification of election re- turns, untimely election results derived from selective manual recounts being conducted in certain Florida counties. App., infra, 42a. The judgment below is therefore "final" for purposes of this Court's jurisdiction under §1257; indeed, it amounts to the entry of a per-manent injunction against the responsible state officials. Market Street Ry. Co. v. Railroad Comm'n, 324 U.S. 548, 551 (1945) (entry of injunction is "an effective de- termination of the litigation and not of merely interlocu- tory or intermediate steps therein"). As demonstrated infra, petitioner expressly raised below the federal questions presented in this petition. Accordingly, the Florida Supreme Court's failure to ad- dress petitioner's federal claims, and its assertion that "[n]either party has raised as an issue on appeal the con- stitutionality of Florida's election laws" (App., infra, 11a, n.10), is no barrier to review by this Court. "The issue of whether a federal question was sufficiently and properly raised in the state courts is itself ultimately a federal question, as to which this Court is not bound by the decision of the state courts." Street v. New York, 394 U.S. 576, 583 (1969). See also Black v. Cutter Labs., 351 U.S. 292, 298 (1956) (this Court has a "duty to . . . determine for ourselves precisely the ground on which the judgment rests"). Accordingly, a state court cannot evade this Court's review by failing to discuss federal questions in its opinion. Chapman v. Goodnow's Adm'r., 123 U.S. 540, 548 (1887) ("If a federal question is fairly presented by the record, and its decision is actu- ally necessary to the determination of the case, a judg- ment which rejects a claim, but avoids all reference to it, is as much against the right . . . as if it has been specifi- cally referred to and the right directly refused.").


Title 3, Section 5 of the United States Code pro- vides: "If any State shall have provided, by laws en- acted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meet- ing of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned." 3 U.S.C. § 5. Article II, Section 1, Clause 2 of the Constitution provides: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Elec- tors, equal to the whole Number of Senators and Repre- sentatives to which the State may be entitled in the Con- gress: but no Senator or Representative, or Person hold- ing an Office of Trust or Profit under the United States, shall be appointed an Elector." The Fourteenth Amendment to the Constitution of the United States provides, in pertinent part, that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal pro- tection of the laws." U.S. CONST. amend. XIV, § 1. The First Amendment to the Constitution of the United States provides, in pertinent part, that "Congress shall make no law .. . abridging the freedom of speech, . . . or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." U.S. CONST. amend. I. Pursuant to this Court's Rule 14.1(f), the provisions of Florida election law involved in this case, including Fla. Stat. §§ 102.111, 102.112, 102.141(4), 102.166, 102.168, and 106.23, are set forth at App., infra, 52a- 61a.


On Tuesday, November 7, 2000, the citizens of the several States, including Florida, cast their votes for the electors for the President and Vice President of the United States. An initial count of the ballots cast in Florida showed that Governor George W. Bush and Dick Cheney received the most votes in the election, subject to the counting of absentee ballots. Because the margin of victory was less than .5 percent, however, an automatic statewide recount commenced. See Fla. Stat. § 102.141(4). The automatic statewide recount con- firmed that Gov. Bush and Secretary Cheney received the most votes. The absentee ballots have now been counted, and Gov. Bush and Secretary Cheney again have received the most votes. Nonetheless, the outcome of the Florida election has not been certified, and the American people are still uncertain as to who their next President will be. Petitioners have no choice but to seek this Court's interve ntion. I. The Underlying Litigation Once election results had been tabulated in most of the other states in the union, it became apparent that the victor in the State of Florida would almost certainly be the next President of the United States. Dissatisfied with the results of the initial count and the automatic re- count, officials of the Democratic Party filed requests for manual recounts in four selected Florida counties: Broward, Miami-Dade, Palm Beach, and Volusia Coun- ties. In each of these counties, Vice President Gore had received a substantial majority of the votes cast in the election. As this Court is undoubtedly aware, the chaos that erupted in the wake of these selectively focused requests for manual recounts has been striking. Unrestrained by statutory guidance, the counties have embarked upon various paths in attempting to divine the "intent of the voters." Counties have adopted conflicting guidelines for achieving this goal, and have repeatedly changed guidelines and standards in the midst of the recounting process. The widely varying and inconsistent policies (or lack of policies) underscores the absurdity of the purported objective of a manual recount conducted un- der these conditions. A manual recount in selected lim- ited counties without consistent standards according to guidelines that are constantly changing and where sub- jective judgments are being exercised by persons who know that their decisions may alter the results of the presidential election will not yield a more accurate tabu- lation than the original statewide machine count, it will simply undermine the credibility and integrity of any fi- nal result. The manual recount process has also undermined the physical integrity of the voters' ballots. Ballots have been damaged throughout the manual recount process by being twisted, rumpled, creased, and dropped; some have been stained with ink, poked with pens, and crushed. This aggressive, careless treatment of the bal- lots has apparently changed their original character in that chads, still attached after voters cast the ballots, have been dislodged in bunches, littering the floor of the recount rooms. It has become impossible to determine the actual condition of the ballots as they appeared when they were cast in the November 7 election in the speci- fied counties. The chaos and confusion over the manual recount process has triggered numerous legal actions. Two of those legal actions reached the Florida Supreme Court and are the subject of this petition. A. The Recount Authority Litigation One lawsuit at issue involves the authority of the se- lected counties to conduct a manual recount of the votes cast on November 7. This proceeding centers on a re- quest by the Palm Beach County Canvassing Board, which asked whether an "error in the vote tabulation" under Florida election law (Fla. Stat. § 102.166(5)), which was the statutory condition precedent for the ex- ercise of the authority to initiate manual recount pro- ceedings, referred to errors in the tabulation system itself or, more broadly, included discrepancies between the number of votes determined by the tabulation system and a sample manual recount. Exhibits A and B, at- tached to Palm Beach County Canvassing Board's Emergency Petition For Extraordinary Writ in case number SC00-2346. In response to the Palm Beach request, the state Di- vision of Elections, the State office charged by the legis- lature with responsibility for interpreting Florida elec- tion law, Fla. Stat. § 106.23, issued an opinion that man- ual recounts are not authorized unless the County Can- vassing Board concludes that "the vote tabulation sys- tem fails to count .. . properly punched punchcard bal- lots." Exhibit C, attached to Palm Beach County Can- vassing Board's Emergency Petition For Extraordinary Writ in case number SC00-2346. The opinion continued that "unless the discrepancy between the number of votes determined by the tabulation system and by the manual recount of four precincts is caused by incorrect election parameters or software errors, the county can- vassing board is not authorized to manually recount bal- lots for the entire county. . . ." Id. The following day Florida's Attorney General issued an advisory opinion on the same issue that contradicted the Division of Elec- tion's advisory opinion. Exhibit D, attached to Palm Beach County Canvassing Board's Emergency Petition For Extraordinary Writ in case number SC00-2346. In response to these conflicting opinions from the Florida executive branch, the Palm Beach County Can- vassing Board filed a pleading with the Florida Supreme Court in which it asked the court to resolve the conflict. B. The Recount Certification Litigation The second legal proceeding relevant to this petition arose out of the Florida statutory deadline for certifying election results, which by law is set for 5:00 p.m. on the seventh day after the election, i.e., Tuesday, November 14. Fla. Stat. § 102.111(1).1 After a Florida Circuit Court enjoined the Secretary of State from declaring that all manual recounts had to be completed by the statutory deadline and directed her to exercise her discretion to determine whether to include untimely election returns in her certification of the election results, the Secretary asked counties interested in submitting explanations for extending the deadline to do so by 2:00 p.m. on Wednesday, November 15. FDEC App. 5, Ex. E.2 Af- ter receiving submissions from four counties (FDEC App. 5, Ex. O), the Secretary of State exercised her dis- cretion and concluded that insufficient reasons had been given to justify extending the deadline to include the re- sults of manual recounts not yet complete. FDEC App. 5, Ex. H. Vice President Gore and others sued for an order di- recting the Secretary to waive the statutory deadline and allow late results from three countiesBroward, Miami- Dade, and Palm Beachto be included in the final vote tally. FDEC App. 12. On November 17, after a hearing the previous afternoon, the Circuit Court for Leon County issued its decision denying the motion. FDEC App. 13. The court held that the Secretary of State had not violated its November 14 Order and explained that 1 Volusia County submitted its manual recount results be- fore the 5:00 p.m., November 14 deadline and, therefore, is in a different category than the other three counties. 2 "FDEC App." refers to the Appendix to the Initial Brief filed on behalf of Albert Gore, Jr., and the Florida Democ- ratic Executive Committee in the court below."the Secretary has exercised her reasoned judgment to determine what relevant factors and criteria should be considered, applied them to the facts and circumstances pertinent to the individual counties involved, and made her decision." App., infra, 44a. II. Proceedings In The Florida Supreme Court The Supreme Court of Florida consolidated the two cases discussed above: (a) the original action brought by the Palm Beach County Canvassing Board asking the court to resolve the conflicting advisory opinions issued by the Division of Elections and the Attorney General; and (b) the appeal from the Leon County Circuit Court's decision that the Secretary of State had not abused her discretion in deciding not to include results from manual recounts filed after the 5:00 p.m. November 14 deadline in the statewide tabulation. A. The State Court's Decision On Friday, November 17, 2000, the Florida Su- preme Court sua sponte enjoined the Secretary of State from certifying the November 7 presidential election re- sults for the State of Florida until further order from the Court. App., infra, 40a-41a. On Monday, November 20, after weekend briefing by the parties, the court heard oral argument. Late on the evening of November 21, 2000, the Florida Supreme Court issued its opinion reversing the orders of the state trial court. App., infra, 1a-39a. The supreme court held that the trial court "erred in holding that the Secretary [of State] acted within her discretion in prematurely rejecting any amended returns that would be the result of ongoing manual recounts." App., infra, 35a. The supreme court reached this conclusion by an- nouncing a new rule of law to constrain the Secretary's discretion under Fla. Stat. §§ 102.111 and 102.112, de- claring for the first time that "the Secretary may reject a Board's amended returns only if the returns are submit-ted so late that their inclusion will preclude a candidate from contesting the certification or preclude Florida's voters from participating fully in the federal electoral process." Id. at 37a. Based on this newly fashioned, hitherto unrecognized rule of law, the Florida Supreme Court directed the Secretary of State to accept untimely manual recount returns through Sunday, November 26, 2000. Id. at 38a-39a. Moreover, the court maintained its injunction preventing the Secretary from certifying any election results by that date, and directed the Secre- tary to include in her certified election results all manual recount returns received by that date. Id. at 39a. B. The Federal Issues Were Raised And Ruled On Below Each of the issues presented by this petition was ex- pressly raised in the court below. First, petitioners ar- gued that a post hoc judicial decision on the appointment of electors would vi olate 3 U.S.C. §5, which requires that any such disputes be resolved in accordance with laws enacted prior to election day. Bush Answer Br. 42- 43; App., infra, 62a. Second, petitioners contended that any decision overriding the Florida legislature's proce- dures for appointing electors (including the November 14 deadline for certifying votes) would violate Article II, which vests sole authority over such matters in the legis- latures of the several States. Bush Answer Br. 43 n.15; App., infra, 62a-63a, n.15. And third, petitioners argued that the manual recount being sought by the Gore faction would "violat[e] the United States Constitution," by diluting votes in violation of the Due Process and Equal Protection Clauses, by allowing standardless decision- making in the voting arena in violation of the Due Proc- ess Clause, and by impairing the right of association through voting in violation of the First Amendment. Bush Answer Br. 43-44; App., infra, 63a-64a. As noted above, the Supreme Court of Florida did not expressly rule on petitioner's federal claims. Be-cause the judgment below necessarily rejects those fed- eral claims on the merits, however, those federal ques- tions are squarely presented here.


Few issues could be more important than those pre- sented in this case. At stake is the lawful resolution of a national election for the office of President of the United States. As this Court has often recognized, the Ameri- can public's right to vote is one of the most sacred pro- tected by our Constitution: "No right is more precious in a free country than that of having a voice in the elec- tion of those who make the laws under which, as good citizens, we must live. Other rights, even the most ba- sic, are illusory if the right to vote is undermined." Wil- liams v. Rhodes, 393 U.S. 23, 31 (1968) (quoting Wes- berry v. Sanders, 376 U.S. 1, 17 (1964)). The Florida Supreme Court's decision poses a clear and present dan- ger to that right, and should be corrected forthwith to en- sure that our Nation continues to be governed by the rule of law. The choosing of presidential electors is a matter of great national importance and interest. As this Court stated in Anderson v. Celebrezze, 460 U.S. 780 (1983), "[I]n the context of a Presidential election, state- imposed restrictions implicate a uniquely important na- tional interest. For the President and Vice President of the United States are the only elected officials who rep- resent all the voters in the Nation. Moreover, the impact of the votes cast in each State is affected by the votes cast for the various candidates in other States." Id. at 794-95. Given the national significance of the Florida election results, it is essential that the counting of ballots be conducted in a fair and consistent manner in accor- dance with established Florida law. Counties in Florida, however, have undergone a blatantly arbitrary, subjec- tive, and standardless process in attempting to count bal- lots by hand in an effort to divine the intent of the vot-ers. The Nation's citizens have witnessed this standard- less process unfold as they anxiously await a resolution of the election outcome. By retroactively changing the law in Florida through judicial intervention, the Su- preme Court of Florida's decision preventing the Secre- tary of State of Florida from exercising her legislatively conferred authority to perform the act of certification that would complete the electoral process in Florida has added to that angst and has strayed from established fed- eral constitutional and statutory law. Governor George W. Bush and Dick Cheney re- ceived the most votes cast in Florida, as initially counted, as recounted, and as retabulated again after re- ceipt of overseas ballots. Nevertheless, the Secretary of State of Florida has been precluded from certifying these results or appointing electors in accordance with that popular vote, pending the completion of an arbitrary, standardless and selective manual recount of ballots cast in three heavily populated, predominantly Democratic counties in Florida. This Court's review of the Supreme Court of Flor- ida's decision is warranted because it "decided an im- portant federal question that conflicts with relevant deci- sions of this Court," Sup. Ct. R. 10(c); it "decided an important federal question in a way that conflicts with the decision of . . . a United States court of appeals," Sup. Ct. R. 10(b); and it "decided an important question of federal law that has not been, but should be, settled by this Court .. . ." Sup. Ct. R. 10(c). As discussed in greater detail below, this case presents important ques- tions regarding the federal statutory and constitutional restraints on the ability of States to impose post hoc re- quirements on the appointment of presidential electors, and to change requirements for the resolution of contro- versies concerning the appointment of electors. The de- cision below also conflicts with precedents of this Court and the court of appeals regarding the scope of the First and Fourteenth Amendment protections for the funda-mental right to vote. Moreover, these important ques- tions are presented in the context of one of the closest elections for President in our Nation's history. There is a profound national interest in ensuring the fairness and finality of elections, particularly an election for the highest office in the land. This is precisely the type of question that the Nation justifiably expects this Court to decide. Indeed, absent a decision by this Court, the election results from Florida could lack finality and legitimacy. The consequence may be the ascension of a President of questionable legitimacy, or a constitutional crisis. Quite simply, this is the sort of case that this Court should unquestionably hear. I. Review Is Warranted In This Case Because The Florida Supreme Court Disregarded Federal Law Governing Disputes Over The Appointment Of Electors Although election procedures are often governed exclusively by state law, that is not the case in elections for the members of the Electoral College, who choose the President and Vice President of the United States. While some of the details of appointing presidential electors are left to the several States, the basic frame- work is established by the Constitution itself, in Section 1 of Article II and the Twelfth Amendment. Moreover, Congress has enacted legislation to implement the con- stitutional framework, and those federal laws, of course, reign supreme over state laws in this area. U.S. CONST., art. VI, cl. 2. In particular, Congress has provided that when "any controversy or contest concerning the appointment of all or any of the electors" from a State arises, the dispute must be resolved exclusively by reference to "laws en- acted prior to" election day. 3 U.S.C. §5 (emphasis added). The evident purpose of this federal law is to en- sure that the applicable rules cannot be changed once the voters have gone to the polls. As Representative Wil-liam Craig Cooper of Ohio explained in the congres- sional debate on this provision (Act of Feb. 3, 1887, ch. 90, § 2, 24 Stat. 373), "these contests, these disputes be- tween rival electors, between persons claiming to have been appointed electors, should be settled under a law made prior to the day when such contests are to be de- cided." 18 CONG. REC. 47 (Dec. 8, 1886) (remarks of Rep. Cooper); see also id. ("these contests should be de- cided under and by virtue of laws made prior to the exi- gency under which they arose"); id. ("How could any court, how could any tribunal intelligently solve the claims of parties under a law which is made concurrent, to the very moment perhaps, with the trouble which they are to settle under the law?"). Representative Cooper's concerns, although expressed more than a century ago, seem remarkably prescient when read against the back- drop of events of the past fifteen days in Florida. As he asked rhetorically, in opposing the views of congres- sional Democrats who wished to permit the use of retro- active rulemaking to resolve electoral disputes: "To what anarchy, to what confusion, to what riot, if you please, Mr. Speaker, might such a course of procedure lead!" Id. Despite the express federal statutory prohibition against the post hoc creation of new legal rules to affect the outcome of controversies over the appointment of presidential electors, the Supreme Court of Florida has authorized a clear departure from the established legal requirements set forth by the Florida Legislature that were in place on November 7. Prior to election day 2000, the Florida Legislature had enacted clear legisla- tive directives regarding the certification of votes cast in the Presidential election. Under § 102.111 of the Florida Statutes, for example, election returns by county can- vassing boards "must be filed by 5:00 p.m. on the 7th day following the . . . general election . . . ." By con- trast, under the new rule of law announced by the deci- sion below, the effective deadline for submission of election returns has been extended from November 14 until November 26 (App., infra, 37a), nearly tripling the statutory seven-day time period mandated by the Florida Legislature. In addition, §102.112 of the Florida Statutes pro- vides that the Elections Canvassing Commission "shall . . . ignore[]" county returns filed after 5:00 p.m. on the seventh day following the election, and "shall . . . cer- tif[y]" the election based on the results returned before the deadline. Section 102.111(1) confirms that late-filed returns "may be ignored" by the Elections Canvassing Commission.3 See Fla. Stat. §102.112. Notwithstand- ing this clear, and preexisting, legislative directive, the Supreme Court of Florida has now concluded retroac- tively that the Elections Canvassing Commission could 3 Section 102.112(1) of the Florida statutes provides that if election returns are not received by the Department of State by 5:00 p.m. on the seventh day following the election, the returns "may be ignored." This statute, enacted in 1989, ap- pears to have been passed in response to the Supreme Court of Florida's decision in Chappell v. Martinez, 536 So. 2d 1007 (Fla. 1988). In Chappell, one of the six counties in the Fourth Congressional District failed to submit its original certificate until two days after the statutory deadline in § 102.111. The county had, however, informed the Depart- ment of State by telephone of its results prior to the deadline. The supreme court ruled that the county had substantially complied with § 102.111 and thus allowed the county's votes to count. See Chappell, 536 So. 2d at 1008-09. In passing § 102.112, however, the State Legislature did not repeal § 102.111. Nor does this case involve a situation like that at issue in Chappell, in which a county conducting a recount in- formed the Department of State of its results prior to the deadline, but simply failed to submit its official results in writing by the deadline. In any event, as discussed below, § 102.112 states that late results may be ignored, not that such results may not be ignored, as the Florida Supreme Court has now directed.not ignore late-filed returns, but must hold the results of a national election open for an additional extended pe- riod of time, pending the completion of selective manual recounts in indivi dual counties. App., infra, 34a-37a. In addition, the judicially established waiver of the statutory deadline contained in § 102.112, is contrary to the legislative provisions contained in § 102.168 provi d- ing for contests to election results. See Fla. Stat. § 102.168. That statute clearly anticipates that results will be certified in a timely fashion, in order for the results to be contested in court. Pushing back the deadline for cer- tification by judicial fiat thus runs headlong into the Florida Legislature's intent to allow a period of time for court challenges. The Supreme Court of Florida's decision also devi- ated from its prior decisions making clear that the "judgments" of officials such as the Secretary of State in fulfilling their specifically charged duties in the election process "are entitled to be regarded by the courts as pre- sumptively correct." Krivanek v. The Take Back Tampa Political Comm., 625 So. 2d 840, 844 (Fla. 1993) (quot- ing Boardman v. Esteva, 323 So. 2d 259, 268 n.5 (Fla. 1975)); see also Greyhound Lines, Inc. v. Yarborough, 275 So. 2d 1, 3 (Fla. 1973) ("This Court has often reiter- ated the principle that a construction of a statute by the administrative body in whom authority to administer is reposed is entitled to great weight and should not be overturned unless clearly contrary to the language of the statute."). This arbitrary judicial departure from the well-established law of Floridaas it plainly stood prior to November 7, 2000is in flagrant violation of Con- gress's federally imposed requirement that controversy over the appointment of electors be resolved solely un-der legal standards "enacted prior to" the date of the election. 3 U.S.C. § 5.4 Even if the Secretary of State might be authorized to excuse county board noncompliance with the 5:00 p.m. November 14 deadline (see Fla. Stat. §102.112), noth- ing in Florida law as it existed before November 7, 2000, required that she do so, and certainly there was no preexisting rule of Florida law that mandated that result in the circumstances presented here. The Florida Legis- lature directly contemplated close elections when it en- acted the controlling statutory provisions at issue here. Indeed, the State's legislative body required that when the margin of victory in an election is less than .5 per- cent, an automatic statewide recount is to be held. See Fla. Stat. § 102.141(4). The Florida Legislature also contemplated that manual recounts might be requested by candidates or parties (but not by voters) in some cir- cumstances, but established no standards to guide the discretion of county canvassing boards in determining whether to conduct such manual recounts See Fla. Stat. 4 The Supreme Court of Florida purported to follow prior Florida case law in reaching its decision but that claim is manifestly without foundation. Under 3 U.S.C. § 5, of course, this Court has an independent obligation to ensure that Florida resolves any controversies over appointment of electors by reference to the rules of law enacted prior to the election, not post hoc standards announced for the first time some two weeks after the election. Moreover, this Court has repeatedly recognized that when a state court rests its deci- sion on a nonfederal ground that "is so plainly unfounded that it may be regarded as essentially arbitrary," such action does not remove consideration of the federal question from this Court's jurisdiction. See McCoy v. Shaw, 277 U.S. 302, 303 (1928); Enterprise Irrigation Dist. v. Farmers Mut. Ca- nal Co., 243 U.S. 157, 164 (1917); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 454-55 (1958).§ 102.166(4)(c). In passing §§ 102.111 and 102.112, however, the legislature plainly determined that finality had an important place in the certification process as well. The Florida Legislature thus consciously weighed the interests of finality against competing interests sup- porting manual recounts. It is clear from the legislative enactments that the court struck the balance between fi- nality and manual recounts in such a way that ongoing manual recounts do not warrant abandoning the statuto- rily imposed deadline found in §§ 102.111 and 102.112, unless, in the most permissive reading of the statutes, the Secretary of State decides in her lawfully granted discre- tion that such late-filed returns should be included in the final election results. Where, as here, no preexisting rule of law required (or even authoritatively authorized) the Secretary of State to waive the time limit on the facts presented, 3 U.S.C. § 5 precludes the retroactive en- forcement of a new rule of law compelling that previ- ously unknown result. The federal rule enunciated by Congress in 3 U.S.C. § 5 serves obvious and important public policy interests by prohibiting precisely what is happening in Florida to- day, where the candidate who did not receive the most votes and his supporters are attempting to overturn the results of the Presidential election by changing the rules after the election has been held. Section 5's prohibition against such retroactive rulemaking in the election con- text provides a statutory corollary to the principle of federal constitutional law recognized by the Eleventh Circuit in Roe v. Alabama, 43 F.3d 574 (11th Cir. 1995). As the court of appeals held in that case, constitutional principles of due process and fundamental fairness pre- clude the States from adopting "a post-election departure from previous practice" and applying that post-election rule retroactively to determine the outcome of an elec- tion. Id. at 581. Here, as in Roe, "had the candidates . . . known" that the state supreme court would retroactively extend the deadline for submission of election returns notwithstanding the plain language of the governing statutes, "campaign strategies wo uld have taken this into account .. . ." Id. at 582. Indeed, the candidates' deci- sions whether to seek a manual recount in specific addi- tional counties might well have been affected had peti- tioner and other candidates known that the Florida Su- preme Court would subsequently extend the statutory deadline nearly threefold. The application of 3 U.S.C. § 5 in these circum- stances is straightforward. Perhaps because no candi- date has previously resisted so strenuously and resource- fully, the certification of election results as has Vice President Gore, this Court has not previously been called upon to decide whether or not the States must adhere to preexisting law in resolving election disputes. But the plain language of the federal statute indicates that they must do so, and it is also plain that the Florida Supreme Court failed to do so. Given the importance of the issue to the Nation, this is not a question that can await further development in the lower courts. The Court should de- cidenowwhether or not Congress meant what it said when it directed that controversies concerning the ap- pointment of electors be decided only "by laws enacted prior to" election day. 3 U.S.C. §5; see Sup. Ct. R. 10(c) (including among the considerations supporting review in this Court, state court decisions that decide "an important question of federal law that has not been, but should be, settled by this Court"). If Congress did, then the judgment below must be reversed. II. Review Is Warranted Because The Court Be- low Disregarded Constitutional Limitations On The Appointment Of Electors The congressional directive that States decide con- troversies concerning electors according to "laws en- acted prior to" election day (3 U.S.C. §5) is derived from the constitutional command that each State appoint electors "in such Manner as the Legislature thereof may direct." U.S. Const. art. II, § 1, cl. 2. Significantly, the Framers did not see fit to leave the mechanics of elec- toral appointment to either the judicial or executive branch of the several States, but instead entrusted the legislative armthe one, as in the federal government, most representative of the popular willwith authority to articulate the standards by which electors would be chosen. In Florida, the "manner" in which the legislature has directed that electors be appointed is quite clear. The citizens vote for them on Election Day (which is estab- lished by federal law), and the various counties must certify the results of the election to the state Division of Elections by 5:00 p.m. the following Tuesday. Fla. Stat. § 102.112. As soon as practicable thereafter, the legisla- ture has commanded that the results of the election "shall" (or at least "may") be certified, while the results from any counties not reporting before the statutory deadline "shall" (or, again, at least "may") be ignored. Fla. Stat. §§ 102.111, 102.112. Notably, the creation of this timetable intentionally leaves time for election con- tests, as the legislature clearly provided for in § 102.168. Under this legislative directive, the results in Florida as all acknowledgeare clear: The electors for the Re- publican candidates garnered more votes before the statutory deadline, and that outcome did not change when the results of absentee balloting (which, under federal law, must be counted notwithstanding the state deadline) were considered. The Florida Supreme Court has seen fit to revise the "manner" in which Florida's electors are chosen by di- recting the Secretary of State to consider results from those counties that are conducting manual recounts, notwithstanding the fact that the statutory deadline has long since passed and no waiver of that deadline has been granted by the State agency authorized by the leg- islature to grant such relief: the Elections Canvassing Commission. The Constitution admits of no such post hoc alterations to the scheme of electoral appointments. Had the Florida legislature seen fit to vest the decision in the hands of the judiciary, presumably it could have done so; but the simple fact is that it did not do so. It is no accident that Article II reserves the manner of selecting electors to the legislatures of the several States. As this Court has explained, "[t]hat was not a term of uncertain meaning when incorporated into the Constitution. What it meant when adopted it still means for the purposes of interpretation. A Legislature was then the representative body which made the laws of the people." Hawke v. Smith, 253 U.S. 221, 227 (1920). And then, as now, a legislature was not a state court, sit- ting after the fact to decide what rules should be adopted and applied. Rather, by requiring the legislative branch to set forth the manner in which electors would be cho- sen, the Framers undoubtedly wanted to ensure that the rules would be specified in advance in order that there could be no doubt that their application in particular cir- cumstances was reflective of the will of the people. The events in Florida have only confirmed the wisdom of the constitutional design, faithful adherence to which re- quires that this Court review the Florida Supreme Court's usurpation of legislative power in defiance of the Constitution's plan. III. Review Is Warranted Because The Supreme Court Of Florida's Decision Conflicts With This Court's And Eleventh Circuit Precedent And The Recount Procedures Sanctioned By The Court Below Do Not Pass Constitutional Muster The Florida Supreme Court's decision opens the door to an electoral catastrophe. The court below has essentially given the green light to a standardless exer- cise in which vote-counters in a few, carefully selected counties will divine the "intent of the electorate" without any legislative guidance or uniform standards. The process therefore varies from county to county, and cri- teria for counting ballots as votes has changed repeat- edly in each recount county. Voters in counties not se- lected for recount will have ballots tabulated pursuant to wholly different, less permissive standards. The results of such lawlessness cannot be squared with fundamental principles of our constitutional structure. When it became apparent that some Florida officials were bent on paving the road to chaos that the state su- preme court has now endorsed, Governor Bush and Sec- retary Cheney, and various Florida voters, sought an in- junction in federal court. Both the district court and the court of appeals denied their request for an interlocutory injunction, although the appellate court did not foreclose the possibility of appropriate relief if necessary. Peti- tioner Bush, among others, has petitioned this Court for review of the federal case (Siegel v. LePore, No. 00-___, filed contemporaneously herewith), which raises the same fundamental due process and equal protection con- stitutional questions as does the Florida Supreme Court's decision. Since those questions are addressed more fully in that petition, which is being submitted to the Court concurrently with this one, Petitioner will only summarize the constitutional problems here. A. Equal Protection The dilution of the weight of a citizen's vote consti- tutes a denial of the right to vote. Reynolds v. Sims, 377 U.S. 533, 555 (1964). As a result, the Equal Protection Clause demands that the votes of similarly situated vo t- ers be given similar effect. See, e.g., O'Brien v. Skinner, 414 U.S. 524 (1974); Roman v. Sincock, 377 U.S. 695 (1964); WMCA, Inc. v. Lomenzo, 377 U.S. 633 (1964). Florida's selective manual recount procedures, as ap- proved by the court below, arbitrarily treat voters differ- ently simply because they happen to live in different parts of the State, and accordingly conflict with prece-dent of this Court cited above. A partially punched bal- lot, for example, may not be counted at all in most coun- ties, might be counted as a vote in other counties, and in some counties it might be counted as a vote or not depending on which set of ever-changing rules the elec- tion officials happen to be applying at the time it is re- viewed. This has the effect not only of arbitrarily deny- ing the right to vote to some persons, but of diluting the votes of the majority of Floridians who correctly cast their ballots. Either way, the present regime cannot withstand equal protection analysis. The Supreme Court of Florida's decision cannot be reconciled with this Court's opinion in O'Brien, in which it struck down a New York law that allowed an inmate incarcerated outside of his home county to cast an absentee ballot, while not allowing a similarly situ- ated inmate to cast a ballot when incarcerated within his home county. See O'Brien, 414 U.S. at 528-30. The manual recount scheme condoned by the Supreme Court of Florida suffers from failings similar to those con- tained in the New York law struck down in O'Brien. The right of a citizen to vote, and to have that vote counted equally to the votes of others similarly situated, cannot be infringed on the sole basis of the county in which the citizen resides, anymore than on the basis of the county in which a prisoner is incarcerated. Because the Supreme Court of Florida's decision "conflicts with [a] relevant decision[] of this Court," review is war- ranted. Sup. Ct. R. 10(c). The decision below also directly conflicts with the Eleventh Circuit's decision in Roe v. Alabama, 43 F.3d 574 (11th Cir. 1995). The court below held that con- ducting manual recounts in selected Democratic coun- ties in the State long past the seven-day deadline im- posed by state law and in a manner flatly inconsistent with the authoritative interpretation of the law by the state official charged with enforcing it does not violate the federal Constitution. In Roe, by contrast, as dis- cussed above, the Eleventh Circuit held that to change the voting rules after election day and thus count some votes that should not be counted would unconstitution- ally dilute the votes of those who complied with the es- tablished voting requirements. Id. at 581-82. In this case, conducting a manual recount in selected counties with no established standards in place to determine whether to conduct such manual recounts and, if so, what procedures to follow, subjects identically situated voters to different treatment solely on account of the county in which they reside. To include ballots in the final statewide tally that were counted solely because they were subjected to the different scrutiny attendant to a manual recount, would be as improper in this case as counting the noncompliant ballots at issue in Roe. As in Roe, the counting of ballots that should not be counted will unconstitutionally dilute the votes of those who properly cast their ballots on election day and those who do not live in the counties selected for a manual recount. In addition to being erroneous as a general matter, there- fore, the Supreme Court of Florida's decision also fails to comport with the Eleventh Circuit's holding in Roe. This conflict further supports review in this Court. Sup. Ct. R. 10(b). B. Due Process The manual recount underway in certain Florida counties is unconstitutional because it is being con- ducted in the absence of meaningful objective standards. The officials responsible for overseeing the turmoil and constantly changing process that the nation has been watching for the past two weeks have failed to articulate rules for when a recount will be ordered, how long it will take, how it will be conducted, what votes will (and will not) be counted, and so on. This uncertainty derives from the fact that Florida law provides no meaningful guidance to help local canvassing boards determine whether to conduct a manual recount and, if so, the process to follow in determining whether to count anygiven ballot. The only "standard" conceivably con- tained in the Florida statutes is the extremely general one that canvassing board's are to attempt "to determine the voter's intent." Fla. Stat. § 102.166(7). This vague statement of generalized purpose absolutely fails to pro- vide any meaningful guide for local canvassing boards to follow in determining how to divine the voter's intent. This total lack of guidance has, not surprisingly, led counties to apply different "standards" to the evaluation process, and, moreover, to the extent such standards have been announced, they have been renounced or changed within minutes or hours. Two counties that voted not to proceed with county-wide manual recounts reversed those decisions within days. The result is a chaotic, and entirely standardless and arbitrary, regime in which a question of national importance is being de- cided by government actors wholly unconstrained by limits or standards. It does not comport with the mini- mum standards of due process. See, e.g., Logan v. Zim- merman Brush Co., 455 U.S. 422 (1982). Moreover, counties have even departed from their past practices in conducting manual recounts. For ex- ample, the Broward County Canvassing Board has pre- viously rejected the need for a manual recount in a situa- tion strikingly similar to this one. In 1991, after an ini- tial machine recount of the votes cast in a local city council race changed the margin of victory from five votes to three, the Board declined to conduct a manual recount. The Board concluded that the change in num- bers was simply the result of "hanging paper chads" that fell away in the second count, causing two ballots ini- tially counted for the victor to become overvotes (and thus no vote) because holes were actually punched for two candidates. See Broward County Canvassing Bd. v. Hogan, 607 So. 2d 508, 509 (Fla. Dist. Ct. App. 1992). The Board determined that such "voter errors . . . are caused by hesitant piercing, no piercing, or intentional or unintentional multiple piercing of computer ballot cards," and did not warrant a manual recount. See id.5 Despite this prior practice of not conducting manual re- counts in cases where a discrepancy between the initial count and a machine recount was due to this kind of "voter error," Broward County opted to change course and conduct a manual recount in this case. Similarly, Palm Beach County is reportedly consid- ering reversing course from its prior guidelines to count so-called "dimpled" chads. See Dan Balz, Bush Spurns Gore Recount Plan; Fla. Official Rejects New Tallies, WASH. POST, Nov. 16, 2000, at A1; Don Van Natta, Jr., Dimpled Votes Are New Hope For Democrats, N.Y. TIMES, Nov. 22, 2000, at A1, available at ml?pagewanted=2. In the Palm Beach County guide- lines on counting ballots issued in November 1990, however, the County Canvassing Board made clear that "a chad that is fully attached, bearing only an indenta- tion, should not be counted as a vote." See Guidelines on Ballots With Chads Not Completely Removed, Adopted by the November 6, 1990 Canvassing Board. The Eleventh Circuit made clear in Roe that chang- ing the rules after an election to count ballots that his- torically had not been counted violates the Due Process Clause. See Roe v. Alabama, 43 F.3d 574, 580-81 (11th Cir. 1995). Nonetheless, this is precisely what Broward County and Palm Beach County are doing: They are engaged in a "post-election departure from [their] previ- ous practice[s]." Id. at 581. This change in approach in determining whether to conduct a manual recount and, if so, how to count ballots, stands in direct conflict with 5 The Fourth District Court of Appeals for Florida upheld the Board's decision not to conduct a manual recount in the Hogan case. See Broward County Canvassing Bd. v. Hogan, 607 So. 2d 508, 510 (Fla. Dist. Ct. App. 1992).the Eleventh Circuit's holding in Roe. Furthermore, these changes underscore the utter lack of standards in the Florida statute to guide local canvassing boards and the unconstitutional nature of the manual recounts that the Supreme of Court of Florida has approved. C. First Amendment Voting is expressive and associational activity pro- tected by the First Amendment. Williams v. Rhodes, 393 U.S. 23 (1968). The arbitrary and standardless re- counting regime approved by the Florida Supreme Court, however, violates the First Amendment rights of those Floridians who voted. It raises some citizens' voices above others, and drowns out still others. It dis- torts, and dilutes, the expression of political will that the people of Florida made on November 7and which has been confirmed in subsequent recounts. It threatens to subvert the views of the many to those of the few, whose votesafter being reviewed according to no discernible, much less articulable, standardsare deemed by inter- ested local officials to have more value than those cast in the rest of the State. The First Amendment cannot withstand such governmental overreaching.


The petition for a writ of certiorari should be granted. Respectfully submitted. MICHAEL A. CARVIN THEODORE B. OLSON COOPER, CARVIN & Counsel of Record ROSENTHAL, P.L.L.C. DOUGLAS R. COX 1500 K Street, N.W. THOMAS G. HUNGAR Suite 200 MARK A. PERRY Washington, D.C. 20005 GIBSON, DUNN & CRUTCHER LLP (202) 220-9600 1050 Connecticut Avenue, N.W. Washington, D.C. 20036 BARRY RICHARD (202) 955-8500 GREENBERG TRAURIG, P.A. 101 East College Avenue BENJAMIN L. GINSBERG Post Office Drawer 1838 PATTON BOGGS LLP Tallahassee, FL 32302 2550 M Street, N.W. (850) 222-6891 Washington, D.C. 20037 (202) 457-6000 GEORGE J. TERWILLIGER III TIMOTHY E. FLANIGAN MARCOS D. JIMÉNEZ WHITE & CASE LLP First Union Financial Center 200 South Biscayne Blvd. Miami, Florida 33131 (305) 371-2700

Counsel for Petitioner

November 22, 2000

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