US Supreme Court Briefs

IN THE SUPREME COURT OF THE UNITED STATES--------------------------------------No. 00 A 504GEORGE W. BUSH AND RICHARD CHENEY,                       Applicants,v.ALBERT GORE, JR., ET AL.,                      Respondents.--------------------------------------On Emergency Application For A Stay Of EnforcementOf the Judgment Below Pending the Filing andDisposition Of A Petition For A Writ Of CertiorariTo The Supreme Court of Florida--------------------------------------OPPOSITION OF RESPONDENT ALBERT GORE, JR. TOEMERGENCY MOTION FOR A STAY PENDING CERTIORARI--------------------------------------Ronald A. Klain                    Laurence H. Tribe             Andrew J. Pincus                   (Counsel of Record)           c/o Gore/Lieberman Recount Comm.   Hauser Hall 420               430 S. Capitol St.                 1575 Massachusetts Ave.       Washington, DC 20003               Cambridge, MA 02138           (202) 863-8000                     (617) 495-4621                Kendall Coffey                     David Boies                   Coffey Diaz & O'Naghten            Boies, Schiller & Flexner     2665 South Bayshore Dr.            80 Business Park Dr., Ste. 110Miami, FL 33133                    Armonk, NY 10504              (305) 285-0800                     (914) 273-9800                Jonathan S. Massey                 Thomas C. Goldstein           3920 Northampton St., NW           Amy Howe                      Washington, DC 20015               4607 Asbury Pl., NW           (202) 686-0457                     Washington, DC 20016                                             (202) 237-7543                Peter J. Rubin                                                   Georgetown Univ. Law Ctr.                                        600 New Jersey Ave., NW                                          Washington, DC 20001                                             (202) 662-9388                                                    





  1. Applicants Will Not Suffer Irreparable Injury In The Absence Of A Stay

  2. Any Injury Applicants Might Suffer Is Sharply Outweighed By The Irreparable Injury To Respondent Gore From Issuance Of A Stay By This Court

  3. The Public Interest Weighs Strongly Against A Stay

  4. Applicants Cannot Establish A Likelihood Of Success On The Merits


No. 00 A-504


On Emergency Application For A Stay Of Enforcement
Of The Judgment Below Pending The Filing And Disposition
Of A Petition For A Writ Of Certiorari
To The Supreme Court Of Florida



Applicants' request for a stay makes a remarkable claim: for the ostensible purpose ofadvancing the interests of voters, applicants urgently request this Court to stop the counting of votes.Their surprising assertion is that a candidate for public office can be irreparably harmed by theprocess of discerning and tabulating the will of the voters. This suggestion is contrary to establishedlaw, the U.S. Constitution, and basic principles of democracy. The application should be deniedbecause applicants have no cognizable legal interest that will be harmed by that count, because a haltin the vote-count process can serve only to delay ultimate resolution of the election contest, andbecause their underlying legal claims lack merit.

Against this background, it is not surprising that applicants have failed to make out any of theshowings necessary to justify such extraordinary relief. First, they offer absolutely no credible claimof irreparable harm from the mere judicial counting of previously uncounted ballots. In fact, the onlyharm alleged by applicants is their fear that, if the count is halted, they somehow will not be able tobenefit from the safe harbor of 3 U.S.C. § 5 should they ultimately prevail in the contest action. Butthat argument is manifestly wrong. Governor Bush can benefit from the safe harbor only if heultimately prevails in the contest by December 12; yet staying the vote-count can do literally nothingto advance, and can only impede, the expeditious resolution of the contest. Applicants have thusfailed to demonstrate any irreparable injury that they will suffer from the continued counting ofballots, and they therefore cannot meet the threshold requirement for this Court's intervention at thisstage of the proceedings.

Granting the stay, by contrast, would cause irreparable harm both to respondents and to thepublic interest. Halting the count of votes until the case has been disposed of by this Court wouldmake it virtually impossible for the Florida courts to complete the review of ballots by December 12,gravely handicapping Vice President Gore's prospects of benefitting from the safe harbor providedby 3 U.S.C. § 5. As a consequence, Gov. Bush proposes a grossly inequitable asymmetry: grantinga stay of the vote count would have no bearing on his ability to benefit from the safe harbor, butwould substantially undercut Vice President Gore's hope of invoking the provision. Denying the stayapplication, in contrast, would avoid those dangers while imposing no injury on applicants; it wouldleave the status quo intact, giving this Court an opportunity to address the merits.1

1 Of course, these considerations suggest that, if the Court believed that review of thiscase were appropriate, it should greatly expedite its consideration of the matter.

Second, the public interest weighs strongly against interfering with a state supreme court'sdecision interpreting state law, because "[a]s a general rule, this Court defers to a state court'sinterpretation of state statute." Bush v. Palm Beach County Canvassing Board, No. 00-836 (Dec.4, 2000), slip op. 4. It would be extraordinary for this Court to enter preliminary relief suspendingthe Florida Supreme Court's order based on that court's interpretation of state law, especially wherethat court carefully explained how its holding followed from Florida statutes and prior Floridadecisions. And that is especially so because this Court has not yet determined "the extent to whichthe Florida Constitution could, consistent with Art. II, § 1, cl. 2, 'circumscribe the legislativepower,'" or the degree to which 3 U.S.C. § 5 imposes any limit on the state supreme court'sauthority. Bush, slip op. 5-6 (citation omitted).

A stay would also undermine the public interest by imposing enormous burdens anddisruption on overworked public officials in Florida. The Florida Supreme Court noted theextraordinary effort made by public servants in the State during the last month (see slip op. 39 n.22),and over the last 18 hours public employees across the State have already made Herculean efforts tocomplete the expeditious judicial count ordered by the Florida Supreme Court. To suddenly staythose efforts, only to restart them if this Court were to deny review or affirm the judgment below,would seriously disserve the public interest.

Third, applicants have no substantial likelihood of success on the merits of the issuespresented in the application; the federal claims would not warrant relief in any event. The record inthis case makes clear that the Florida Supreme Court took to heart the concerns underlying thisCourt's decision in Bush v. Palm Beach County Canvassing Board, supra, and carefully avoidedreliance on any authority other than statutes enacted by the Florida Legislature. The Court likewisecarefully explained how its conclusions flowed from prior cases construing those statutes. And themiscellany of other constitutional issues raised by applicants also lack substance. For all of thesereasons, the application for a stay should be denied.


1. Florida's election law establishes two distinct phases for the resolution of disputesregarding the outcome of an election. The first phase runs from election day through the certificationof the results of the election. It involves the reports of county canvassing boards to the Secretary ofState and Elections Canvassing Commission, and the resolution by the county canvassing boards ofany protests filed pursuant to Fla. Stat. § 102.166. This aspect of Florida's election law was beforethis Court in Bush v. Palm Beach County Canvassing Board, supra.

The second, post-certification phase for resolution of election disputes is the election contestaction created by the Legislature in Fla. Stat. § 102.168. That law provides that "the certification ofelection * * * of any person to office * * * may be contested in the circuit court by any unsuccessfulcandidate for such office * * * or by any elector qualified to vote in the election related to suchcandidacy." One of the grounds for contesting an election is the "rejection of a number of legal votessufficient to change or place in doubt the result of election." Section 102.168(3)(c). The Legislatureprovided courts with broad authority both to investigate claims in contest actions and to fashionrelief:

The circuit judge to whom the contest is presented may fashion such orders as he or shedeems necessary to ensure that each allegation in the complaint is investigated, examined, orchecked, to prevent or correct any alleged wrong, and to provide any relief appropriate undersuch circumstances.

Section 102.168(8).

2. On November 27, 2000, following the certification of Gov. Bush as the winner of thePresidential election in Florida, respondent Gore commenced this election contest action underSection 102.168 in Leon County Circuit Court. The complaint raised five claims:

  • it challenged the rejection of 215 net legal votes for respondent Gore identified by thePalm Beach County Canvassing Board that had been excluded from the certified votetotals;

  • it challenged the rejection of 168 net legal votes for Vice President Gore identified bythe Miami-Dade County Canvassing Board also excluded from the certified votetotals;

  • it challenged the inclusion in the certified totals of the election night returns fromNassau County in place of the machine recount tabulation required to be used todetermine the certified totals by Fla. Stat. § 102.141;

  • it argued that the court should review approximately 9000 Miami-Dade County ballotsthat were not counted by the machines, because -- among other reasons -- review ofapproximately 2000 similar ballots by the county canvassing board yielded nearly 400legal votes; and

  • it challenged the rejection of 3300 legal votes in Palm Beach County during the countycanvassing board's manual recount.

3. Following a two-day trial, the circuit court entered judgment for applicants and the otherdefendants on all claims. Three of the circuit court's determinations were relevant to its refusal evento examine the 9000 Miami-Dade County ballots that were introduced into evidence during the trial.First, the court held that the ballots should not be reviewed because the Miami-Dade CountyCanvassing Board did not abuse its discretion in terminating its manual recount pursuant to Section102.166. Tr. of Ruling, Sauls, J. (Dec. 3, 2000) at 10. Second, the court held that respondent Gorewas required to establish a "reasonable probability that the results of the election would have beenchanged" before the court could review the ballots and that respondent Gore had failed to carry thatburden. Id. at 9. And third, the court held that in an election contest action, the court may notreview only the contested ballots but rather must review all ballots cast or no ballots at all. Id. at 12.

4. The Florida Supreme Court affirmed in part and reversed in part. The court affirmedthe judgment regarding both the ballots from Nassau County and the rejection of ballots by the PalmBeach County canvassing board. Slip op. 33, 35. The court reversed, however, as to the excludedballots from Palm Beach and Miami, holding that valid ballots may not be disregarded in an electioncontest simply because they were not identified prior to the close of the county certification process.Slip op. 35. Most significant for present purposes, the court also held, not only that respondent is"entitled to a manual count of the Miami-Dade County undervote," but also that the Florida ElectionCode required "a counting of the legal votes contained within the undervotes in all counties wherethe undervote has not been subjected to a manual tabulation." Slip op. 2.; see id. at 28-32, 38-40.



The factors governing the issuance of a stay are well-settled: "(1) whether the stay applicanthas made a strong showing that he is likely to succeed on the merits; (2) whether the applicant willbe irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the otherparties interested in the proceeding; and (4) where the public interest lies." Hilton v. Braunskill, 481U.S. 770, 776 (1987). See R. Stern, E. Gressman, S. Shapiro, & K. Geller, SUPREME COURTPRACTICE 689-690 (7th ed. 1993). Likelihood of success on the merits in the context of an applicationto stay the mandate of a lower court turns on whether there is a "reasonable probability" that fourJustices will vote to grant certiorari and a "significant possibility" that a majority of the Court willreverse on the merits. See, e.g., Curry v. Baker, 479 U.S. 1301, 1302 (1986) (Powell, J., inchambers) (denying application for stay in elections matter).

None of these factors weighs in favor of applicants here. To the contrary, considerations ofirreparable injury and the balance of equities weigh overwhelmingly against issuance of the stay.

A. Applicants Will Not Suffer Irreparable Injury In The Absence Of A Stay

Demonstrating irreparable injury is essential to applicants'request for a stay: "An applicant'slikelihood of success on the merits need not be considered, * * * if the applicant fails to showirreparable injury from the denial of the stay." Ruckelshaus v. Monsanto Co., 463 U.S. 1315, 1317(1983) (Blackmun, J., in chambers). See R. Stern, E. Gressman, S. Shapiro, & K. Geller, supra, at690. Applicants treat this requirement, however, as a brief and rather embarrassed afterthought totheir application. See Stay App. 39-41. As we understand it -- and there are parts of applicants'argument that we find confusing -- applicants appear to assert that they will suffer irreparable injuryunless the count of ballots is stopped immediately because (1) under 3 U.S.C. § 5, a State'sdisposition of controversies regarding the selection of presidential electors is "conclusive" only ifthose controversies are resolved prior to December 12; (2) if the vote-count goes forward, the currentcontest may not be completed by that date; and (3) Governor Bush, if he prevails in the contest actionafter December 12, will lose the presumption of the § 5 safe harbor. See Stay App. 39-40.

With all respect, this argument is wholly insubstantial. Even if Governor Bush is correct inall of his assertions -- and in his further argument that the election contest is somehow "tainted by theFlorida Supreme Court's unauthorized and unlawful rewrite of the legislative structure" (Stay App.40), a point that we address below -- a stay would be completely irrelevant to his claimed injury.Governor Bush can achieve his objective of a conclusive resolution to this dispute by December 12in only one of two ways: (1) the count can go forward and the courts can enter a final judgment byDecember 12, or (2) this Court can grant review and determine that Governor Bush is entitled toprevail in the contest by that date. A stay of the count obviously does nothing to advance either ofthose goals, and thus does literally nothing to avoid the irreparable injury of which Governor Bushcomplains.

In this respect, it is important to focus on the particular action ordered by the FloridaSupreme Court and the particular relief sought by applicants. That court ordered the review ofspecified ballots and the adjustment of the certified vote totals in light of that count -- a count theoutcome of which will not be known until it is complete. Of course, if that review does shift the votetotals in respondent's favor, the injury to applicants will not be the least bit irreparable: "There willbe time enough for [applicants] to present his constitutional claim" to this Court "if and when" thethreatened harm comes about at the entry of final judgment in the contest proceeding. Deaver v.United States, 483 U.S. 1301, 1303 (1987) (Rehnquist, C.J., in chambers).

It may be added that applicants do not, and could not, make any claim that the process ofcounting ballots causes him injury in any cognizable way. After all, applicants retain their ability toobtain full review of all of their constitutional claims if the count ultimately goes against them. See,e.g., Roudebush v. Hartke, 405 U.S. 15, 26 (1971) (in case involving election for U.S. Senator,reversing injunction against recount that was based on alleged irreparable injury of interfering withSenate's ability to judge elections and returns, explaining that "[i]t would be no more than speculationto assume that the Indiana recount procedure would impair such an independent evaluation by theSenate"); Perez v. Edwards, 336 So. 2d 1072 (La. App. 1976) (holding that candidate could notestablish irreparable injury from casting and counting of ballots because any injury can be redressedby subsequent holding that underlying authorizing provisions are unconstitutional); Grand RapidsCity Clerk v. Judge of Superior Court, 115 N.W.2d 112 (Mich. 1962) (refusing to issue injunctionagainst election proceedings that would interfere with completion on fixed schedule and whereeffective relief would subsequently be available). As a consequence, they simply do not face anycognizable injury at this point.

B. Any Injury Applicants Might Suffer Is Sharply Outweighed By The IrreparableInjury To Respondent Gore From Issuance Of A Stay By This Court

A stay thus is neither necessary nor sufficient to protect applicants against irreparable harm;entry of a stay would have no bearing at all on Gov. Bush's ability to take advantage of the 3 U.S.C.§ 5 safe harbor. What a stay would do, of course, is prevent Vice President Gore from ever gainingthe benefit of the Section 5 presumption. A stay would essentially ensure that if this Court eitherdenies review or affirms the decision below -- even prior to the Section 5 deadline -- the counting ofthe ballots would push a "final determination" well beyond that date. That means that Governor Bushcould gain the benefit of Section 5 if this Court acted quickly, but that Vice President Gore could not,even if this Court ultimately affirmed the decision below. This result would turn the purpose of a stayapplication on its head: rather than "temporarily suspend[ing] judicial alteration of the status quo"to permit the Court to exercise jurisdiction over proper federal claims, see Turner Broad. Sys. v.FCC, 507 U.S. 1301, 1302 (1993) (Rehnquist, C.J., in chambers), the grant of a stay here wouldgratuitously disadvantage one litigant for no permissible purpose.

If, on the other hand, the counting is allowed to proceed, both parties will have an equalopportunity to obtain protection under Section 5, with the winner depending upon both the outcomeof the counting and the outcome of any further proceedings in this Court. Such a decision does notimpose any irreparable injury whatsoever on Governor Bush, and it fairly balances the equities amongthe parties.

C. The Public Interest Weighs Strongly Against A Stay

Finally, the rights of third parties and the public interest both weigh strongly against applicantsat this juncture. The judicial review of ballots currently underway, which this application seeks tohalt, has been commenced to vindicate the constitutional right to vote of those citizens who cast votesthat might not otherwise have been properly tabulated. See, e.g., Reynolds v. Sims, 377 U.S. 533,554 (1963) (citizens have constitutionally protected right to have their votes counted); United Statesv. Classic, 313 U.S. 299, 315 (1941) ("Obviously included within the right to choose, secured by theConstitution is the right of qualified voters within a state to cast their ballots and have themcounted."); cf. United States v. Mosley, 238 U.S. 383, 386 (1915) (it is "equally unquestionable thatthe right to have one's vote counted is as open to protection * * * as the right to put a ballot in abox"). The public also has a definite interest in the effectuation of all legal procedures in place underFlorida law to determine the rightful winner of Florida's electoral votes in the presidential election.

Moreover, the Florida Supreme Court has determined that Florida law requires judicialtabulation of uncounted ballots. That determination is entitled to considerable deference by thisCourt. Indeed, it may be disturbed only if this Court finds a basis in federal law for doing so. Yet,as we explain below in more detail, the two grounds identified by this Court in Bush are manifestlyinapplicable here for two separate reasons. To begin with, this Court in Bush took pains to makeclear that it was not reaching the federal questions in that case. Surely it would not be appropriateto upset the determination of the Florida Supreme Court by affording interim relief here -- with thedrastic consequences just discussed for the balance of the equities among the parties -- when thisCourt in Bush did not even address the questions presented in that case. Slip op. 6. Second,recognizing the potential concerns articulated by this Court in Bush, the Florida Supreme Courtexercised great care to ensure that its decision was firmly rooted both in statutes enacted by theLegislature and in longstanding interpretations of those statutes. See pages 13-18, infra. Thatcounsels great restraint in interfering with the Florida Supreme Court's interpretation of Florida law.

D. Applicants Cannot Establish A Likelihood Of Success On The Merits

Because applicants can establish neither irreparable injury nor a convincing case on thebalance of harms, it is unnecessary at this time for the Court to address the likelihood of success onthe merits of applicants' claims. Beyond that, however, the federal claims they raise would notwarrant relief in any event.

1. In its opinion in Bush, this Court quoted McPherson v. Blacker, 146 U.S. 1 (1892), butdid not address "the extent to which the Florida Constitution could, consistent with Art. II, §1, cl.2, 'circumscribe the legislative power.'" Slip op. 5. Because the Court was "unclear as to the extentto which the Florida Supreme Court saw the Florida Constitution as circumscribing the legislature'sauthority under Art. II, §1, cl. 2," it "decline[d] at this time to review the federal questions assertedto be present." Slip op. 7, 6. Instead, the Court vacated and remanded for clarification of thegrounds of the Florida Supreme Court's decision.

The present case is totally different from Bush. There is no indication whatsoever in thelower court's opinion that it "saw the Florida Constitution as circumscribing the legislature'sauthority" under the federal Constitution. Indeed, the Florida Supreme Court clearly recognized thelimitations imposed by Article II -- it expressly acknowledged them at the outset of its opinion. Slipop. 5 ("These statutes established by the legislature govern our decision today"). Accordingly, thereis no federal question and no basis for reversal.

The only mention of the Florida Constitution in the Florida Supreme Court's opinion occursin connection with that court's assertion of jurisdiction, noting that the parties had agreed that theFlorida court's assertion of jurisdiction did not run afoul of Article II. Slip op. 1 & n.1. Althoughapplicants repudiated their concession twenty-four hours after it was made, the initial concession wasa sensible one: it is clear that there is no Article II issue here.

The Florida Legislature re-enacted the contest statute in 1999 against the settled backgroundrule that decisions of circuit courts in contest actions are subject to appellate review. See, e.g.,Beckstrom v. Volusia County Canvassing Bd., 707 So. 2d 720 (Fla.1998); Harden v. Garrett, 483So. 2d 409 (Fla. 1985); Bolden v. Otter, 452 So.2d 564 (Fla. 1984); McPherson v. Flynn, 397 So.2d 665 (Fla. 1981). "It is an elementary principle of statutory construction that in determining theeffect of a later enacted statute, courts are required to assume that the Legislature passed the latterstatute with knowledge of the prior existing laws." Romero v. Shadywood Villa Homeowners Ass'n,657 So.2d 1193, 1195-96 (Fla.3d Dist Ct. App. 1995). It therefore is entirely logical to suppose thatin referring to the "circuit court" in Section 102.168, the legislature intended to encompass theordinary accouterments of appellate review of circuit court decisions. Thus, the statute itself suppliesthe necessary authority for review here.

Moreover, even if the Florida Supreme Court's authority was thought to stem from theFlorida Constitution, not the statute, exercise of that authority still would not violate Article II. Thethreshold inquiry under Article II is whether the state Constitution "circumscrib[ed] the legislature'sauthority," and here the application of the Florida Constitution must be fully consistent with ArticleII because there is every indication that the Legislature intended to provide appellate review in contestactions, not eliminate it. Even applicants do not try to explain why the legislature would want toendow a single circuit judge with final authority to decide these cases. Instead, all indications are thatthe legislature intended this statute to be governed by the settled principle of Florida law that the statesupreme court has appellate jurisdiction over all matters determined in the lower courts unless thelegislature precludes such review. See, e.g., Leanard v. State, 760 So.2d 114, 118 (Fla. 2000). That,of course, is a principle with which the Florida legislature is quite familiar.

For example, suppose that the Legislature had enacted a provision stating: "To promoteexpeditious resolution of election disputes, there shall be no appellate review of the decisions ofcircuit courts in contest actions." If the Florida Supreme Court had held that provision invalid underthe Florida Constitution, an issue would then arise under Article II regarding the validity of theprovision for contests of Presidential elections. But here, where the constitutional provision forappellate review supplements the Legislature's scheme -- much like judicial rules of procedure orevidence or principles of statutory construction -- and does not invalidate a choice made by theLegislature, the principle set forth in McPherson is not implicated. See 146 U.S. at 39-40; see alsoid. at 24-26.

2. Applicants also argue (at 23) that the decision below violates Article II for the separatereason that the Florida Supreme Court "substituted its judgment for that of the legislature" and"rewr[ote] th[e] statutory scheme" governing the appointment of presidential electors in a variety ofdifferent respects. Again, applicants make no plausible claim that Article II has been violated.

To begin with, this contention moves well beyond the sort of Article II claim that the Courthypothesized in Bush. There, the Court could not tell the basis for the Florida Supreme Court'sruling and sought clarification. If the Florida Supreme Court explained that it had relied upon theFlorida Constitution, then this Court would proceed to assess the permissibility of that reliance underArticle II.

Here, the Florida Supreme Court's opinion makes clear that it did not rely upon the FloridaConstitution in construing the election law. See, e.g., slip op. 5-6. The court based its interpretationon conventional tools of statutory construction, including relevant precedents; in other words, itengaged in routine statutory interpretation.

Applicants'argument here is thus either that the Florida Supreme Court misrepresented thebasis for its decision -- that the court said it was interpreting Florida statutory law but actually wasnot -- or that Florida's highest court erred in interpreting Florida law. Either contention is squarelyinconsistent with the "general rule" that "this Court defers to a state court's interpretation of statelaw." Bush, slip op. 4. Were this Court to adopt applicants'view of Article II, it would be requiredto second-guess every state law ruling by a state court to determine whether the lower court wasattempting to disguise some other basis for decision or had just gotten the state law wrong.

Finally, as this Court is well aware, the process of statutory construction is the process ofdetermining how to resolve issues that are not expressly addressed in the language of the statute. Butapplicants takes the position that Article II bars a court from engaging in this routine process: if anissue is not addressed in the language of the statute or in a prior decision that is precisely on point,then the court has engaged in "judicial meddling" or "usurpation of [the Legislature's] constitutionallydelegated power." Nothing in Article II so limits the courts' authority, at least absent a specificlimitation enacted by the legislature, and there is no such limitation here. Indeed, the fact that theseprovisions apply broadly to all elections confirms the Legislature's intent that courts exercise theirusual role.

A discussion of the particular state law issues cited by applicants confirms that the decisionbelow is a routine example of statutory construction that is entirely consistent with Article II, and thatapplicants'claims are nothing more than an attempt to reconsider these state law issues. Significantly,despite the division on the court below with respect to the relief granted, there was significantconsensus with respect to the questions of statutory interpretation: six of the seven justices agreedon the statutory interpretation issues. Applicants'contentions before this Court consist principallyof generalized assertions with little in the way of support.

First, applicants claim that the Section 102.168 contest action does not apply to Presidentialelections. However, as the Florida Supreme Court explained (slip op. 6 n.7), applicant Bush, theFlorida Legislature, and the Florida Secretary of State all took the position before that court that thecontest action was available. Indeed, applicant Bush himself filed a third party complaint in the circuitcourt in this case invoking Section 102.168 with respect to the Presidential election.2

Second, applicants assert (Stay App. 26) that the court below "essentially overruled" twosubsections of Section 102.166 by ordering a recount of less than all of the ballots cast. However,

2 The single case cited by applicants -- Fladell v. Florida Elections Canvassing Comm'n-- was vacated by the Florida Supreme Court, which expressly held that "the Court'srulings thereon are a nullity." See Fladell v. Florida Elections Canvassing Comm'n,Nos. 00-2372 & 00-2376, slip op. 4 (Fla. Sup. Ct. Dec. 1, 2000).

as the Florida Supreme Court explained, the Section 102.166 protest remedy is entirely separate fromthe Section 102.168 election contest remedy. Slip op. 13; see also id. at 61 (Harding and Shaw, JJ.,dissenting) (agreeing that the two remedies are separate). And whatever the restrictions on thecounty canvassing boards' authority under Section 102.166, the Legislature granted the courtsextraordinarily broad remedial authority in contest actions (see Section 102.168(8)), and it is thatauthority that is the basis for the determination below.

Third, contrary to applicants'contention (at 26), the court below did not rely on the prioropinion that this Court vacated in Bush. It merely pointed out that a canvassing board's failure tocomplete the recount by the date specified in the court's opinion did not forever bar the inclusion inthe vote totals of any legal votes identified in that recount. Slip op. 34-35. Applicants'reference (at26) to the Broward County votes is mystifying because the counting of those votes was not an issuein the court below.

Fourth -- and somewhat inconsistently -- applicants (at 27) attack the Florida Supreme Courtfor refusing to go beyond the statutory standard for a legal vote and hold that indented ballots maynever constitute legal votes. Here, the court's opinion simply recognizes the statutory test; it isdifficult to understand how that could possibly violate Article II.

3. Applicants also assert (at 29-34) that the Florida Supreme Court's interpretations ofFlorida law constitute the application of "laws [not] enacted prior to the day fixed for theappointment of the electors" that will deprive Florida's electors of the protection of 3 U.S.C. § 5.Again, however, each of applicants'claims is just an attempt to revisit the Florida Supreme Court'sinterpretation of Florida law.

First, applicants again argue (at 30-31) that the Florida Supreme Court's decision curbs thediscretion of canvassing boards. As the lower court held, however, canvassing boards exercise theirauthority under the protest provision, Section 102.166; the case now before the Court involves anentirely separate remedy, a contest action under Section 102.168. In Broward County CanvassingBoard v. Hogan, 607 So.2d 5087 (Fla. Dist. Ct. App. 1992), upon which applicants rely, theplaintiff's claim was that the canvassing board should have conducted a recount under Section102.166; the plaintiff did not assert a claim to relief under the specific grounds set forth in the conteststatute as respondent Gore did here under Section 102.168(3)(c).

Second, applicants again attack (at 31) the Florida court's definition of a legal vote. Theyseem to argue that the Florida Supreme Court was obligated to provide a definition more specificthan the one set forth in the statute. But standards such as "intent" are well known in the law andnothing in 3 U.S.C. § 5 imposed an obligation of greater specificity.3

4. Applicants also have not shown the requisite probability of success on the merits of theirequal protection claim. The decision of the court below does not present either of the situations thatapplicants have argued would raise concerns under the Equal Protection Clause.

To begin with, in their brief below, applicants argued primarily that, "[i]n a contest of astatewide election, a statewide recount is required by the Equal Protection Clause." See Amended

3 Applicants point to the 1990 Palm Beach guidelines and other alleged definitions oflegal votes. But the key question is whether those definitions are consistent with thestatutory standard prescribed by the Legislature; no one would assert that simply becausea standard had been promulgated by a canvassing board prior to the election it must beapplied even if it violates the statute. And the relevant circuit court held that the PalmBeach standards did violate the statutory test. Florida Democratic Party v. Palm BeachCounty Canvassing Board, No. CL00-11078AB (Fla 15th Jud. Cir. Nov. 15, 2000).

Brief of Applicant Bush in Gore v. Harris, Fl. S. Ct. No. SC00-2431 at 44. The decision of theFlorida Supreme Court, of course, orders a statewide manual count of undervotes, see slip op. at 16-20, so this equal protection claim is not presented.

Faced with the loss of that argument, applicants now argue only that "the necessarilydisparate manual recount" ordered by the Florida Supreme Court raises equal protection problems.See Stay App. at 35. But the premise of this argument simply does not obtain here because theFlorida Court has ordered that a uniform, statewide standard, that required by the legislature, be usedin counting the undervotes. See slip op. at 23-25 (explaining that, under longstanding interpretationsof statutory law, ballots containing a "clear indication of the intent of the voter" constitute "legalvotes" that must be counted). Because all the undervotes that will be manually counted will becounted under this same standard, there is nothing to applicants'equal protection claim.

Applicants also argue that Florida cannot treat voters in different counties differently. StayApp. 35. If applicants mean by this to say that every county must use precisely the same methods oftabulation as every other county in the State, they are obviously wrong. As they do in Florida,different counties within States routinely use different equipment and different ballots for the conductof their elections. This plainly does not systematically "dilute" the votes of particular counties in anyway that violates the Equal Protection Clause. The only decision applicants cite in support of theirargument, O'Brien v. Skinner, 414 U.S. 524 (1974), involved incarcerated prisoners who weredenied the right to vote altogether based solely on their county of residence. But O'Brien stands onlyfor the unremarkable proposition that voters cannot be denied the right to vote solely because of theircounty of residence.

Indeed, even if the standard articulated by the Florida Supreme Court were interpretedslightly differently in different counties, permitting each county's canvassing board to conduct itsportion of a statewide manual recount of undervotes would not work any imoermissiblediscrimination. It would simply facilitate the completion of the count. The need for an orderlyprocess of counting these votes would be sufficient to sustain against Equal Protection challenge thereasonable procedure of permitting each county to apply the standard set out by the Florida Court.See Anderson v. Celebrezze, 460 U.S. 780, 788 (1983) (with respect to regulation of elections,"State's important regulatory interests are generally sufficient to justify reasonable, nondiscriminatoryrestrictions").

In any event, if the standard set out by the Florida Court is not applied consistently, applicantswill have recourse to the Leon County Circuit Court and, on appeal, to the Florida Supreme Court,either of which will be able to eliminate any inconsistency by determining itself which ballots meet thestatutory standard.4

The decisions cited by applicants are in any event inapposite. Although applicants mention"dilution," the cases they cite, e.g., Reynolds v. Sims, 377 U.S. 533 (1964); Roman v. Sincock, 377U.S. 695 (1964), involve the one-person one-vote principle under which voters from differentdistricts cannot be given votes of unequal "weight." This issue is not presented in an at-large electionlike the instant one where, although the elections are conducted by individual counties, the winner

4 And, indeed, Florida statutory law provides that opportunity with regard to any ballotsthat a candidate believes should not have been counted during a manual recount pursuantto Fla. Stat. 102.166, see App. 36 (complaining about standards used during previousmanual recounts). See Fla. Stat. 102.168 (3)(c) (permitting a candidate to contest theinclusion of "illegal votes" in the certified election results).

is determined based on his or her statewide vote. When the State undertakes procedures to ensurethat qualified voters'votes are counted, the previously counted votes are not, of course, "diluted"at all. And, as this Court has previously recognized, manual recount procedures are an ordinarymechanism for ensuring the accuracy of vote-counts in close elections. See Roudebush v. Hartke,405 U.S. 15, 25 (1972) ("A recount is an integral part of the Indiana electoral process and is withinthe ambit of the broad powers delegated to the States by Art. I, § 4.").

5. Nor is there any prospect that applicants will prevail under the Due Process Clause of theFourteenth Amendment. Applicants appear to argue that the Florida Supreme Court's decisionviolates the Due Process clause in two ways: first, because it improperly changes the law, and,second, because it requires that the manual recounts occur in the absence of clear standards.

To the extent that applicants' due process argument rests on the claim that the FloridaSupreme Court imposed standards for counting the votes that were not in place when the votes werecast, that argument must fail for reasons already discussed above: the law enunciated in the FloridaSupreme Court's opinion is the law as it existed on election day and long before it. In fact, thisargument is particularly flawed in the due process context. To establish the charge of aconstitutionally impermissible retroactive change in the law, applicants would have to demonstratenot simply that the Florida Supreme Court's decision constituted a retrospective change and that thechange deprived them of a cognizable liberty or property interest, but also that the change was"arbitrary and irrational." Eastern Enters. v. Apfel, 524 U.S. 498, 548 (1998) (Kennedy, J.,concurring in the judgment and dissenting in part); see also id. at 537 (plurality opinion of O'Connor,J.) (same); id. at 556 (Breyer, J., dissenting) (same). But applicants allege none of the elements ofsuch a claim, for understandable reasons. Not only does the Florida Supreme Court's decision notrepresent a change in the law, see supra, but it would take an exceptional showing of unfairretroactive effect to hold a court decision (as opposed to a legislative enactment) violative of dueprocess: court judgments are normally retrospective in light of their application to the parties to thecase, and the Fourteenth Amendment has never been suggested to require otherwise.

Indeed, this Court's decisions reflect the strong presumption, consistent with this Court'sunderstanding of the nature of the judicial act, that judicial rulings (again, in contrast to legislativeenactments) must be retrospectively applied to the parties themselves. See, e.g., Harper v. VirginiaDept. of Taxation, 509 U.S. 86, 97 (1993); see id. at 107-08 (Scalia, J., concurring). The appellatedecisions on which applicants relies for his assertion that the decision below has impermissibleretroactive effect are simply inapposite. In both Briscoe v. Kusper, 435 F.2d 1046 (7th Cir. 1970),and Roe v. Alabama, 43 F.3d 574 (11th Cir. 1995), election officials retroactively changed anelectoral practice on which voters and candidates had relied at the time of the election.

As for applicants'claim that the Florida court's decision did not provide sufficient guidancefor its standards to pass due process muster, both the court's decision and the subsequent circuitcourt actions to implement that decision belie applicants'claim. In its decision, the Florida SupremeCourt offered a clear standard -- one that has been in place in Florida and countless other states foryears: "the standards to be employed is that established by the Legislature in our Election Code whichis that the vote shall be counted as a 'legal' vote if there is 'clear indication of the intent of thevoter.'"Slip op. 40. The Florida canvassing boards and courts have long implemented that standard,and vote totals certified in this and many previous elections reflect countless ballots manuallyrecounted under this standard.5

The cases applicants cite do not suggest a contrary result. In Duncan v. Poythress, 657 F.2d691 (1981), the Fifth Circuit agreed with the First Circuit that a due process violation could be foundwhere "'the election process reaches the point of patent and fundamental unfairness.'" Id. at 703(quoting Griffin v. Burns, 570 F.2d 1065, 1077 (1st Cir. 1978)). Of note, both the First and FifthCircuits explicitly recognized that the circumstances giving rise to a due process violation would have"to go well beyond the ordinary dispute over the counting and marking of ballots," and that precedentestablished that federal courts would not "enter into the details of the administration of the election."Id. The First and Fifth Circuits found a sufficiently flawed electoral process only where the stateencouraged voters to proceed by absentee ballot but then retroactively invalidated those ballots, andwhere it failed entirely to hold an election required by law. Id.

Indeed, applicants'arguments that the judgment of the Florida Supreme Court violates dueprocess because it is "in its basic aspect * * * flawed" and permits effectively standardless recountsare nothing more than claims that the contest and recount procedures of Florida's election code,which mirror those that have long existed in one form or another in numerous States are on their faceunconstitutional. There is no way of rationalizing their position with the fact that the manual countingof ballots under the identical standard has been the rule, not the exception, in this country for most

5 Indeed, under applicants' due process theory, the already certified results must beconstitutionally infirm to the extent that they include any ballots manually recounted underFlorida's longstanding standard.

of the period since its founding. And their argument would have the logical consequence that theentire election in Florida, in which many ballots have been included in the certified totals to date onlyafter manual counting, would have to be declared invalid.


The application for a stay should be denied.

Respectfully submitted.

Ronald A. Klain                    Laurence H. TribeAndrew J. Pincus                   (Counsel of Record)c/o Gore/Lieberman Recount Comm.   Hauser Hall 420430 S. Capitol St.                 1575 Massachusetts Ave.Washington, DC 20003               Cambridge, MA 02138(202) 863-8000                     (617) 495-4621Kendall Coffey                     David BoiesCoffey Diaz & O'Naghten            Boies, Schiller & Flexner2665 South Bayshore Dr.            80 Business Park Dr., Ste. 110Miami, FL 33133                    Armonk, NY 10504(305) 285-0800                     (914) 273-9800Jonathan S. Massey                 Thomas C. Goldstein3920 Northampton St., NW           Amy HoweWashington, DC 20015               4607 Asbury Pl., NW(202) 686-0457                     Washington, DC 20016                                   (202) 237-7543                                   Peter J. Rubin                                   Georgetown Univ. Law Ctr.                                   600 New Jersey Ave., NW                                   Washington, DC 20001                                   (202) 662-9388December 9, 2000

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