Ned L. Siegel v. Theresa Lepore

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 00-15981

________________________

D. C. Docket No. 00-9009

NED L. SIEGEL,

GEORGETTE SOSA DOUGLAS, et al.,

Plaintiffs-Appellants,

versus

THERESA LEPORE,

CHARLES E. BURTON, et al.,

Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(December 6, 2000)

Before ANDERSON, Chief Judge, TJOFLAT, EDMONDSON, COX, BIRCH,

DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS and WILSON,

Circuit Judges.

PER CURIAM:

This is an appeal from the denial of a preliminary injunction.

The Republican candidates for the offices of President and Vice President of

the United States, along with several registered Florida voters, filed suit in federal

court in Miami, seeking to enjoin four Florida counties from conducting manual

recounts of ballots cast for President of the United States in the November 7, 2000,

election. The district court denied Plaintiffs’ request for preliminary injunctive

relief, and Plaintiffs appeal. For the reasons stated below, we affirm.

I.

On November 7, 2000, Florida voters cast ballots for several offices,

including votes for the twenty-five electors for President and Vice-President of the

United States. The following day, the Division of Elections for the State of Florida

reported that the Republican Party presidential ticket received 2,909,135 votes, and

the Democratic Party presidential ticket received 2,907,351 votes, for a margin of

difference of 1,784, or 0.0299% of the total Florida vote.

Under Florida law, county canvassing boards are responsible for

determining the number of votes cast for each candidate. See Fla. Stat. § 102.141.

If a candidate for office is defeated by one-half of one percent or less of the votes

cast for such office, the canvassing board must order a recount. See id. §

102.141(4). Pursuant to this statute, because the Presidential vote returns reflected

that the Democratic ticket was defeated by less than one-half of one percent, the

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canvassing boards conducted automatic recounts of the votes. After the automatic

recounts, the Republican ticket retained the majority of votes, although by a

slimmer margin.

Under Florida law, a manual recount may be requested by any candidate

whose name appeared on the ballot, a political committee that supports or opposes

an issue that appeared on the ballot, or a political party whose candidates’ names

appeared on the ballot. See Fla. Stat. § 102.166(4)(a). Such a request must be

filed with the canvassing board within 72 hours after midnight of the date the

election was held, or before the canvassing board has certified the challenged

results, whichever is later. See id. § 102.166(4)(b). The canvassing board may,

but is not required to, grant the request. See id. § 102.166(4)(c); Broward County

Canvassing Bd. v. Hogan, 607 So. 2d 508, 510 (Fla. Dist. Ct. App. 1992) (“The

statute clearly leaves the decision whether or not to hold a manual recount of the

votes as a matter to be decided within the discretion of the canvassing board.”).

The statutory manual recount provision applies to all Florida counties. Therefore,

the procedure for requesting a manual recount is the same in all counties, although

the decision of whether to conduct a manual recount would, of course, be made

separately by each county’s canvassing board.

3

Once authorized by a county canvassing board, a manual recount must

include “at least three precincts and at least 1 percent of the total votes cast for

such candidate.” Id. § 102.166(4)(d). The person requesting the recount chooses

three precincts to be recounted, and, if other precincts are recounted, the

canvassing board chooses the additional precincts. See id. If the results of the

manual recount indicate “an error in the vote tabulation which could affect the

outcome of the election, the county canvassing board shall: (a) Correct the error

and recount the remaining precincts with the vote tabulation system; (b) Request

the Department of State to verify the tabulation software; or (c) Manually recount

all ballots.” Id. § 102.166(5).

Florida law specifies the procedures for a manual recount. Section

102.166(7) of the Florida Statutes provides that:

(a) The county canvassing board shall appoint as many counting

teams of at least two electors as is necessary to manually

recount the ballots. A counting team must have, when possible,

members of at least two political parties. A candidate involved

in the race shall not be a member of the counting team.

(b) If a counting team is unable to determine a voter's intent in

casting a ballot, the ballot shall be presented to the county

canvassing board for it to determine the voter's intent.

In this case, the Florida Democratic Party filed requests for manual recounts

in Broward, Miami-Dade, Palm Beach, and Volusia Counties on November 9,

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2000, within the 72-hour statutory deadline. The stated reasons for the requests

included the closeness of the statewide race and a concern that the vote totals might

not reflect the true will of Florida voters. The apparent practical effect of a manual

recount is that some ballots which were unreadable by machine due, for example,

to voters’ failure to mark or punch the ballots in a machine-legible fashion, might

be read by human counters; and these votes could be added to the totals for each

candidate.

II.

On November 11, 2000, registered voters Ned L. Siegel from Palm Beach

County, Georgette Sosa Douglas from Broward County, Gonzalo Dorta from

Miami-Dade County, Carretta King Butler from Volusia County, Dalton Bray from

Clay County, James S. Higgins from Martin County, and Roger D. Coverly from

Seminole County, along with the Republican candidates for President and Vice-

President, George W. Bush and Richard Cheney (collectively “Plaintiffs”), filed a

Complaint and a Motion for a Temporary Restraining Order and Preliminary

Injunction in the district court for the Southern District of Florida. Plaintiffs sued

members of the county canvassing boards of Volusia, Palm Beach, Broward, and

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Miami-Dade Counties.1 Plaintiffs’ Complaint alleged that the manual recounts

violate the Fourteenth Amendment’s guarantees of due process and equal

protection, and deny and burden the First Amendment’s protection of votes and

political speech.

Plaintiffs’ prayer for relief in their Complaint included the following:

(a) Declaring that Defendants may not subject any vote totals to

manual recounts;

(b) In the alternative, declaring that Florida Statute § 102.166(4) is

unconstitutional to the extent it does not limit the discretion of Defendants to

conduct manual recounts in this case;

(c) Declaring that Defendants should certify and release forthwith all

vote totals that have been the subject of two vote counts since November 7,

2000;

(d) Declaring that the form of ballot used in Palm Beach County was

valid;

(e) Declaring that any ballot punched or marked for two Presidential

candidates not previously counted cannot now be counted;

(f) Consolidating or removing to this Court any and all actions filed

across the State of Florida purporting to challenge the results of the

November 7 statewide election or otherwise delay the certification and

release of those results; and

1

There are no state defendants in this case. In addition to the parties mentioned

above, the district court granted a motion by the Florida Democratic Party to intervene, and the

Florida Democratic Party is an intervenor-appellee in this case on appeal. The Attorney General

also appeared as an amicus at oral argument to defend the constitutionality of the statute.

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(g) Granting such other and further relief as this Court shall deem just

and proper.

(Complaint at 16-17.)

The Motion for a Temporary Restraining Order and Preliminary Injunction

which Plaintiffs filed with their Complaint asked, inter alia, that the district court

prohibit the county canvassing boards from proceeding with manual recounts of

the November 7th election results. Like the Complaint, this motion contended that

the manual recounts violate the First Amendment and the Due Process and Equal

Protection Clauses of the Fourteenth Amendment.

The district court heard oral argument on the motion on November 13, 2000,

and Plaintiffs’ request for a preliminary injunction was denied. On November 14,

2000, Plaintiffs filed a notice of appeal.2

During the pendency of this appeal, several Florida cases were appealed to

the Florida Supreme Court. In these cases, some plaintiffs challenged Florida

Secretary of State Katherine Harris’s decision to refuse to accept the results of

manual recounts submitted by county canvassing boards after the statutory

deadline of 5:00 p.m. on November 14, 2000. On November 21, 2000, in the

2

The documents in this case were lodged in this Court as they were filed in the

district court. Pursuant to Federal Rule of Appellate Procedure 35, this Court ordered that this

case be heard initially en banc. See Hunter v. United States, 101 F.3d 1565, 1568 (11th Cir.

1996) (en banc); Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc).

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consolidated cases of Palm Beach County Canvassing Bd. v. Harris, Volusia

County Canvassing Bd. v. Harris, and Florida Democratic Party v. Harris, the

Supreme Court of Florida decided that Florida Secretary of State Harris must

accept the late-reported results of manual recounts from these counties submitted

by the evening of November 26, 2000. The Florida Supreme Court expressly

stated that neither party had raised as an issue on appeal the constitutionality of

Florida’s election laws, and it did not address federal constitutional issues in its

opinion.3

On appeal, Plaintiffs filed an Emergency Motion for an Injunction Pending

Appeal, asking this Court to prohibit the county canvassing board Defendants from

proceeding with manual ballot recounts. This motion was denied without prejudice

on November 17, 2000. Among other things, we then said:

Both the Constitution of the United States and 3 U.S.C. §

5 indicate that states have the primary authority to

determine the manner of appointing Presidential Electors

and to resolve most controversies concerning the

appointment of Electors. The case law is to the same

effect, although, of course, federal courts may act to

preserve and decide claims of violations of the

Constitution of the United States in certain

circumstances, especially where a state remedy is

inadequate. In this case, the State of Florida has enacted

3

The United States Supreme Court recently vacated the Florida Supreme Court’s

opinion. See Bush v. Palm Beach Canv. Bd., No. 00-836 (U.S. Dec. 4, 2000).

8

detailed election dispute procedures. These procedures

have been invoked, and are in the process of being

implemented, both in the form of administrative actions

by state officials and in the form of actions in state

courts, including the Supreme Court of Florida. It has

been represented to us that the state courts will address

and resolve any necessary federal constitutional issues

presented to them, including the issues raised by

Plaintiffs in this case. If so, then state procedures are not

in any way inadequate to preserve for ultimate review in

the United States Supreme Court any federal questions

arising out of such orders.

Order Denying Plaintiffs’ Emergency Motion for Injunction Pending Appeal,

Touchston v. McDermott, No. 00-15985 (Nov. 17, 2000) (citations omitted).

Plaintiffs moved this Court to expedite the underlying appeal, which motion

we granted. This case is now before us on the appeal of the district court’s denial

of Plaintiffs’ motion for a preliminary injunction. Plaintiffs ask this Court either to

reverse the district court’s decision, enjoin the canvassing board Defendants from

conducting manual recounts or certifying election results that include manual

recounts, or order the deletion and/or non-inclusion of final vote tabulations that

reflect the results of manual recounts.4

4

Plaintiffs’ request on appeal is thus broader than their request for an injunction

pending appeal, which asked only that we halt manual recounts then underway. To the extent

that Plaintiffs’ request on appeal represents a petition for permanent relief, we must decline to

convert this appeal of a denial of a preliminary injunction into a final hearing on the merits of

Plaintiffs’ claims. Our review of such a case is normally limited to whether the district court

abused its discretion; however, we recognize that an appellate court under some circumstances

may decide the merits of a case in connection with its review of a denial of a preliminary

9

This Court has carefully considered Plaintiffs’ appeal, as well as the other

documents filed, and has conferred en banc on numerous occasions. We heard oral

injunction. See Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S.

747, 755-56, 106 S. Ct. 2169, 2176 (1986).

In Thornburgh, the Supreme Court said that “if a district court’s ruling rests solely on a

premise as to the applicable rule of law, and the facts are established or of no controlling

relevance, that ruling may be reviewed even though the appeal is from the entry of a preliminary

injunction.” Id. at 757, 106 S. Ct. at 2177. The Supreme Court affirmed the appellate court’s

decision to review the merits, rather than merely determine whether the district court had abused

its discretion by entering a preliminary injunction, where it had the benefit of “‘an unusually

complete factual and legal presentation from which to address the important constitutional issues

at stake.’” Id. (quoting Thornburgh v. American College of Obstetricians & Gynecologists, 737

F.2d 283, 290 (3d Cir. 1984)). Additionally, the Supreme Court observed that appellate review

was aided by three recent decisions from the same circuit on the constitutional issues. See id. at

753-54, 757, 106 S. Ct. at 2174-75, 2177. Thus, it stated that “when the unconstitutionality of

the particular state action under challenge is clear,” an appellate court need not abstain from

addressing the merits. Id. at 756, 106 S. Ct. at 2176. In so holding, however, the Supreme Court

noted that “[a] different situation is presented, of course, when there is no disagreement as to the

law, but the probability of success on the merits depends on facts that are likely to emerge at

trial.” Id. at 757 n.8, 106 S. Ct. at 2177 n.8 (citations omitted).

This case clearly falls within this latter category, and thus represents the very situation in

which the Supreme Court held that appellate review was not appropriate. The answer to the

constitutional questions is anything but clear. And, in stark contrast to Thornburgh, we have

before us a factual record that is largely incomplete and vigorously disputed. The district court

based its ruling on Plaintiffs’ motion for a preliminary injunction solely on limited affidavits and

the submission of few documents, including news media reports. Moreover, there was no

discovery in this case, much less a trial or a plenary hearing, and none of the scant evidence

presented to the district court was tested by the adversarial process of cross-examination. The

controlling relevant facts are fervently contested by the parties. These evidentiary infirmities are

especially problematic given that Plaintiffs’ major claims are as-applied challenges to the Florida

statutes, arguments the validity of which depends upon the development of a complete

evidentiary record. Mere expediency does not warrant this Court reaching the merits of

Plaintiffs’ claims in the absence of the necessary evidence by which to do so. Therefore,

applying the reasoning of Thornburgh, the circumstances of this case as it currently stands

require us to deny their request.

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argument on December 5, 2000. Recognizing the importance of a resolution to this

case, a prompt decision on the appeal is required.

III.

We first consider whether Rooker-Feldman bars our exercise of subject

matter jurisdiction over Plaintiffs’ claims.

The Rooker-Feldman doctrine provides that federal courts, other than the

United States Supreme Court, have no authority to review the final judgments of

state courts. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462,

486, 103 S. Ct. 1303, 1317 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413,

415-16, 44 S. Ct. 149, 150 (1923). The doctrine extends not only to constitutional

claims presented or adjudicated by a state court, but also to claims that are

“inextricably intertwined” with a state court judgment. Feldman, 460 U.S. at 482

n.16, 103 S. Ct. at 1315 n.16; Dale v. Moore, 121 F.3d 624, 626 (11th Cir. 1997).

A federal claim is inextricably intertwined with a state court judgment “if the

federal claim succeeds only to the extent that the state court wrongly decided the

issues before it.” Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 25, 107 S. Ct. 1519,

1533 (1987) (Marshall, J., concurring).

In light of the United States Supreme Court’s decision vacating the Florida

Supreme Court’s November 21, 2000, decision, it is unclear at the moment that any

11

final judgments giving rise to Rooker-Feldman concerns now exist. See Bush v.

Palm Beach County Canv. Bd., No. 00-836 (U.S. Dec. 4, 2000). No party has

called to our attention any final judgments in the Florida state courts upon which a

Rooker-Feldman bar reasonably could be based as to these Plaintiffs.5 Thus, we

conclude that Rooker-Feldman does not bar Plaintiffs from bringing these

particular constitutional challenges to the implementation of Florida’s manual

recount provision.

Defendants Broward, Palm Beach, and Volusia County Canvassing Boards

also argue that this case is moot because the manual recounts have been completed

and the boards have filed their certified vote tabulations with the Elections

Canvassing Commission. However, we conclude that this case is not moot.

5

For similar reasons, we conclude that neither res judicata nor collateral estoppel

bars our consideration of the issue of the constitutionality of Florida’s statutory manual recount

provision. We look to Florida law to determine the application of these preclusive doctrines.

See Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81, 104 S. Ct. 892, 896 (1984)

(holding that under the Full Faith and Credit Act, a federal court must give the same preclusive

effect to a state court judgment as another court of that state would give). Florida adheres to the

traditional requirement of mutuality of parties in its application of res judicata. See Albrecht v.

State of Florida, 444 So. 2d 8, 11 (Fla. 1984); State Street Bank & Trust Co. v. Badra, 765 So. 2d

251, 253 (Fla. Dist. Ct. App. 2000) (citing Youngblood v. Taylor, 89 So. 2d 503, 505 (Fla.

1956)). The parties to this case are not the same parties that appeared before the Florida

Supreme Court. Florida similarly requires mutuality of parties in the application of collateral

estoppel. See Stogniew v. McQueen, 656 So. 2d 917, 919-20 (Fla. 1995). Further, the doctrine

of collateral estoppel bars identical parties from relitigating only those issues that have

previously been decided between them. See Mobil Oil Corp. v. Shevin, 354 So.2d 372, 374 (Fla.

1977). Where, as here, the issue in dispute has not been fully litigated, the doctrine is

inapplicable. We therefore conclude that neither res judicata nor collateral estoppel bars our

review of the constitutionality of Florida’s manual recount provision.

12

Article III of the Constitution limits federal court jurisdiction to live cases or

controversies, and the “case-or-controversy” requirement “subsists through all

stages of federal judicial proceedings, trial and appellate.” Lewis v. Continental

Bank Corp., 494 U.S. 472, 477, 110 S. Ct. 1249, 1253 (1990). This Court has held

that “[a] claim for injunctive relief may become moot if: (1) it can be said with

assurance that there is no reasonable expectation that the alleged violation will

recur and (2) interim relief or events have completely and irrevocably eradicated

the effects of the alleged violation.” Reich v. Occupational Safety & Health

Review Comm’n, 102 F.3d 1200, 1201 (11th Cir. 1997).

We conclude that neither of these elements is satisfied in this case. The

Democratic candidate, Vice President Gore, and others are currently contesting the

election results in various lawsuits in numerous Florida state courts. There are still

manual recount votes from at least Volusia and Broward Counties in the November

26th official election results of the Florida Secretary of State.6 In view of the

complex and ever-shifting circumstances of the case, we cannot say with any

confidence that no live controversy is before us.7

6

There may also be some manual recount votes in those results from a number of

other Florida counties, such as Seminole, Gadsden, and Polk.

7

Read broadly, Plaintiffs’ request for injunctive relief can be interpreted as a

request that Defendants be ordered to certify only those vote totals that resulted from machine

recounts. Because Florida Secretary of State Harris has certified the election results and because

13

IV.

Defendants argue that we should abstain from hearing this case under

Burford v. Sun Oil Co., 319 U.S. 315, 63 S. Ct. 1098 (1943), or under Railroad

Comm’n of Tex. v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643 (1941). We conclude

that abstention is not appropriate in this case.

The Burford abstention doctrine allows a federal court to dismiss a case only

if it presents difficult questions of state law bearing on policy problems of

substantial public import whose importance transcends the result in the case then at

bar, or if its adjudication in a federal forum would disrupt state efforts to establish

a coherent policy with respect to a matter of substantial public concern. See Boyes

v. Shell Oil Prods. Co., 199 F.3d 1260, 1265 (11th Cir. 2000) (citing New Orleans

Pub. Serv., Inc. v. Council of the City of New Orleans, 491 U.S. 350, 361, 109 S.

Ct. 2506, 2514 (1989)). A central purpose furthered by Burford abstention is to

protect complex state administrative processes from undue federal interference.

See New Orleans Pub. Serv., 491 U.S. at 362, 109 S. Ct. at 2515. The case before

us does not threaten to undermine all or a substantial part of Florida’s process of

she is not yet a party to this appeal, we note that there is some question whether this Court could

order the requested relief once the Defendant canvassing boards have completed their manual

recounts and have certified their vote totals to the state Elections Canvassing Commission.

However, because we deny Plaintiffs’ motion for a preliminary injunction, we need not address

this issue.

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conducting elections and resolving election disputes. Rather, Plaintiffs’ claims in

this case target certain discrete practices set forth in a particular state statute.

Further, Burford is implicated when federal interference would disrupt a state’s

effort, through its administrative agencies, to achieve uniformity and consistency in

addressing a problem. See, e.g., Quackenbush v. Allstate Ins. Co., 517 U.S. 706,

727-28, 116 S. Ct. 1712, 1727 (1996). This case does not threaten to undermine

Florida’s uniform approach to manual recounts; indeed, the crux of Plaintiffs’

complaint is the absence of strict and uniform standards for initiating or conducting

such recounts. Finally, we note that Burford abstention represents an

“extraordinary and narrow exception to the duty of a District Court to adjudicate a

controversy properly before it.” County of Allegheny v. Frank Mashuda Co., 360

U.S. 185, 188, 79 S. Ct. 1060, 1063 (1959). We do not believe that the concerns

raised by Defendants in this case justify our abstention under this narrow doctrine.

Perhaps the most persuasive justification for abstention advanced by

Defendants is based on Pullman, 312 U.S. 496, 61 S. Ct. 643; however, we

conclude that abstention under this doctrine would not be appropriate. Under the

Pullman abstention doctrine, a federal court will defer to “state court resolution of

underlying issues of state law.” Harman v. Forssenius, 380 U.S. 528, 534, 85 S.

Ct. 1177, 1181 (1965). Two elements must be met for Pullman abstention to

15

apply: (1) the case must present an unsettled question of state law, and (2) the

question of state law must be dispositive of the case or would materially alter the

constitutional question presented. See id. at 534, 85 S. Ct. at 1182. The purpose of

Pullman abstention is to “avoid unnecessary friction in federal-state functions,

interference with important state functions, tentative decisions on questions of state

law, and premature constitutional adjudication.” Id. Because abstention is

discretionary, it is only appropriate when the question of state law can be fairly

interpreted to avoid adjudication of the constitutional question. See id. at 535, 85

S. Ct. at 1182.

Plaintiffs claim that Florida’s manual recount provision is unconstitutional

because the statute does not provide sufficient standards to guide the discretion of

county canvassing boards in granting a request for a manual recount or in

conducting such a recount. There has been no suggestion by Defendants that the

statute is appropriately subject to a more limited construction than the statute itself

indicates.

Our conclusion that abstention is inappropriate is strengthened by the fact

that Plaintiffs allege a constitutional violation of their voting rights. In considering

abstention, we must take into account the nature of the controversy and the

importance of the right allegedly impaired. See Edwards v. Sammons, 437 F.2d

16

1240, 1243 (5th Cir. 1971) (citing, as examples of cases where the Supreme Court

referred to the nature of the right involved in upholding a refusal to abstain,

Harman, 380 U.S. at 537, 85 S. Ct. at 1183 (voting rights); Griffin v. County Sch.

Bd. of Prince Edward County, 377 U.S. 218, 84 S. Ct. 1226 (1964) (school

desegregation); Baggett v. Bullitt, 377 U.S. 360, 84 S. Ct. 1316 (1964) (First

Amendment rights)). Our cases have held that voting rights cases are particularly

inappropriate for abstention. See Duncan v. Poythress, 657 F.2d 691, 697 (5th Cir.

Unit B 1981) (stating that while an alleged denial of voting rights does not

preclude federal abstention, Supreme Court precedent indicates that a federal court

should be reluctant to abstain when voting rights are at stake); Edwards, 437 F.2d

at 1244 (stating the general rule that abstention is not appropriate “in cases

involving such a strong national interest as the right to vote”). In light of this

precedent, the importance of the rights asserted by Plaintiffs counsels against our

abstention in this case; although, as discussed below, we are mindful of the limited

role of the federal courts in assessing a state’s electoral process.

We therefore conclude that abstention is not appropriate.

V.

This is an appeal from the denial of a preliminary injunction. Plaintiffs state

two main claims. First, Plaintiffs argue that Florida’s manual recount scheme, and

17

particularly Fla. Stat. § 102.166(7), is unconstitutional because it contains no

standards for when a ballot not read by the machine may be counted. They

describe their claim as an “as-applied” challenge based on the allegedly

standardless and partisan application of the (allegedly facially standardless) statute

in Palm Beach, Broward, Dade, and Volusia Counties. Plaintiffs’ chief objection

is that different criteria used by different counties, or by different election officials

within a county, may mean that the same ballot rejected in one instance is accepted

in another instance, or vice versa. They contend that such unequal treatment

violates the Equal Protection Clause and that the lack of standards by itself violates

the Due Process Clause. Plaintiffs also contend that the absence of statutory

standards for when a manual recount occurs permits arbitrary and partisan

decision-making, exacerbates the potential for unequal treatment of ballots, and

thus warrants a federal court’s intervention.

Second, Plaintiffs assert that they are denied due process and equal

protection because, under Fla. Stat. § 102.166(4), ballots in one county may be

manually recounted while ballots in another county are not. They contend that, as

a result, similarly situated voters will not be treated similarly based purely on the

fortuity of where they reside; a ballot that would be counted in one county pursuant

18

to a manual recount may not be counted elsewhere because that voter’s county did

not conduct such a recount.

Defendants, as well as the Intervenor-Appellee, dispute all of these

contentions. They argue that Florida law does contain constitutionally adequate

standards for evaluating when a manual recount should occur and for evaluating

the ballots during such a recount, and that Plaintiffs’ as-applied claim fails because

no record evidence shows that those standards have been employed in an arbitrary

or partisan fashion. They also maintain that allowing decisions to be made on

whether a manual recount occurs on a county-by-county basis is reasonable and

consistent with the approach taken by other states, and that in any event no

constitutional violation is present for many reasons, such as there is no record

evidence indicating that a recount request was made and accepted in one Florida

county while a request made in a different county was rejected. More generally,

they raise a series of arguments for the proposition that Plaintiffs’ challenge to

Florida’s election laws does not rise to a level that would warrant federal

intervention.

The district court, weighing the parties’ arguments, determined that

Plaintiffs had failed to show a substantial likelihood of success on the merits. We

have reviewed the competing arguments. To some extent, our consideration of

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these arguments is shaped by the practical difficulties of marshaling an adequate

record when ongoing and unexpected events continually alter the key facts. In this

case, only limited affidavits and a few documents were introduced into the record

before the district court. No formal discovery has been undertaken, and, as yet, no

evidentiary hearing has been held in this case. Many highly material allegations of

facts are vigorously contested. Preliminary injunction motions are often, by

necessity, litigated on an undeveloped record. But an undeveloped record not only

makes it harder for a plaintiff to meet his burden of proof, it also cautions against

an appellate court setting aside the district court’s exercise of its discretion.

However, we need not decide the merits of the case to resolve this appeal,

and therefore, do not decide them at this time. The district court rejected Plaintiffs’

preliminary injunction motion not only because it found no likelihood of success

on the merits, but also on the separate and independent ground that Plaintiffs had

failed to show that irreparable injury would result if no injunction were issued. We

may reverse the district court’s order only if there was a clear abuse of discretion.

See, e.g., Carillon Importers, Ltd. v. Frank Pesce Int’l Group Ltd., 112 F.3d 1125,

1126 (11th Cir. 1997) (per curiam); Revette v. International Ass’n of Bridge,

Structural & Ornamental Iron Workers, 740 F.2d 892, 893 (11th Cir. 1984) (“The

district court’s decision will not be reversed unless there is a clear abuse of

20

discretion.”); Harris Corp. v. National Iranian Radio & Television, 691 F.2d 1344,

1354 (11th Cir. 1982). Because Plaintiffs still have not shown irreparable injury,

let alone that the district court clearly abused its discretion in finding no irreparable

injury on the record then before it, the denial of the preliminary injunction must be

affirmed on that basis alone.

A district court may grant injunctive relief only if the moving party shows

that: (1) it has a substantial likelihood of success on the merits; (2) irreparable

injury will be suffered unless the injunction issues; (3) the threatened injury to the

movant outweighs whatever damage the proposed injunction may cause the

opposing party; and (4) if issued, the injunction would not be adverse to the public

interest. See McDonald’s Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir.

1998) (citing All Care Nursing Serv., Inc. v. Bethesda Mem’l Hosp., Inc., 887 F.2d

1535, 1537 (11th Cir. 1989)). In this Circuit, “[a] preliminary injunction is an

extraordinary and drastic remedy not to be granted unless the movant clearly

established the ‘burden of persuasion’” as to each of the four prerequisites. Id.

(internal citation omitted); see also Texas v. Seatrain Int’l, S.A., 518 F.2d 175, 179

21

(5th Cir. 1975) (grant of preliminary injunction “is the exception rather than the

rule,” and plaintiff must clearly carry the burden of persuasion).8

A showing of irreparable injury is “‘the sine qua non of injunctive relief.’”

Northeastern Fla. Chapter of the Ass’n of Gen. Contractors v. City of Jacksonville,

896 F.2d 1283, 1285 (11th Cir. 1990) (quoting Frejlach v. Butler, 573 F.2d 1026,

1027 (8th Cir. 1978)); see also Doran v. Salem Inn, Inc., 422 U.S. 922, 931, 95 S.

Ct. 2561, 2568 (1975) (“The traditional standard for granting a preliminary

injunction requires the plaintiff to show that in the absence of its issuance he will

suffer irreparable injury.”); Robertson, 147 F.3d at 1306 (plaintiff must show

“irreparable injury will be suffered”); Harris Corp., 691 F.2d at 1356-57

(concluding that district court “did not abuse its discretion in finding a substantial

likelihood of irreparable injury to [the plaintiff] absent an injunction”); Deerfield

Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. 1981) (to be

granted a preliminary injunction plaintiffs must show “a substantial likelihood that

they would suffer irreparable injury”).9

8

The Eleventh Circuit, in Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th

Cir. 1981) (en banc), adopted as precedent decisions of the former Fifth Circuit rendered prior to

October 1, 1981.

9

We have occasionally spoken of requiring a substantial “threat” of irreparable

harm. See Haitian Refugee Ctr., Inc. v. Baker, 949 F.2d 1109, 1110 (11th Cir. 1991) (per

curiam). We do not read those opinions, however, as intending to relax the traditional standard -

- stated by the Supreme Court -- that a plaintiff must show either that he will suffer, or faces a

substantial likelihood that he will suffer, irreparable injury. See e.g., Doran, 422 U.S. at 931, 95

22

Significantly, even if Plaintiffs establish a likelihood of success on the

merits, the absence of a substantial likelihood of irreparable injury would, standing

alone, make preliminary injunctive relief improper. See Snook v. Trust Co. of

Georgia Bank of Savannah, N.A., 909 F.2d 480, 486 (11th Cir. 1990) (affirming

denial of preliminary injunction even though plaintiff established likelihood of

prevailing because plaintiff failed to meet burden of proving irreparable injury);

City of Jacksonville, 896 F.2d at 1285 (reversing preliminary injunction based

solely on plaintiff’s failure to show irreparable injury); Flowers Indus. v. FTC, 849

F.2d 551, 552 (11th Cir. 1988) (same); United States v. Lambert, 695 F.2d 536,

540 (11th Cir. 1983) (affirming denial of preliminary injunction and stating that a

plaintiff’s “success in establishing a likelihood it will prevail on the merits does not

obviate the necessity to show irreparable harm”). As we have emphasized on

many occasions, the asserted irreparable injury “must be neither remote nor

speculative, but actual and imminent.” City of Jacksonville, 896 F.2d at 1285

(quoting Tucker Anthony Realty Corop. v. Schlesinger, 888 F.2d 969, 973 (2d Cir.

1989)); accord, Chacon v. Granata, 515 F.2d 922, 925 (5th Cir. 1975) (“An

S. Ct. at 2568. In any event, the outcome is the same even using substantial “threat” as the

benchmark.

23

injunction is appropriate only if the anticipated injury is imminent and

irreparable.”).

At this time, Plaintiffs cannot demonstrate a threat of continuing irreparable

harm. At the moment, the candidate Plaintiffs (Governor Bush and Secretary

Cheney) are suffering no serious harm, let alone irreparable harm, because they

have been certified as the winners of Florida’s electoral votes notwithstanding the

inclusion of manually recounted ballots. Moreover, even if manual recounts were

to resume pursuant to a state court order,10 it is wholly speculative as to whether

the results of those recounts may eventually place Vice President Gore ahead. See

Church v. City of Huntsville, 30 F.3d 1332, 1337 (11th Cir. 1994) (“a party has

standing to seek injunctive relief only if the party alleges, and ultimately proves, a

real and immediate -- as opposed to a merely conjectural or hypothetical -- threat

of future injury”). At the moment it also remains speculative whether such an

order may be forthcoming. Indeed, the Florida Circuit Court in Leon County

considering the Vice President’s contest to the final certification has now denied

the Vice President’s request for resumption of manual recounts as part of its

broader judgment in the entire contest action. This development reinforces that the

10

This case involves discretionary recounts ordered by county canvassing boards.

A recount ordered by a state court under state law in a contest proceeding might be a

substantially different case, raising different legal issues.

24

candidate Plaintiffs are suffering no serious harm. Moreover, as noted earlier, the

United States Supreme Court has now vacated the Florida Supreme Court’s

decision, raising still further doubt about the likelihood of any substantial injury.

Nor are the voter Plaintiffs (all of whom allege that they voted for Governor

Bush and Secretary Cheney) suffering serious harm or facing imminent injury. No

voter Plaintiff claims that in this election he was prevented from registering to

vote, prevented from voting or prevented from voting for the candidate of his

choice. Nor does any voter claim that his vote was rejected or not counted. The

cases called to our attention by the parties that have warranted immediate

injunctive relief have involved these kind of circumstances. Even assuming

Plaintiffs can assert some kind of injury, they have not shown the kind of serious

and immediate injury that demands the extraordinary relief of a preliminary

injunction. Additionally, any alleged voter injury, unrelated to the outcome of the

election certified by the Florida Secretary of State, can be adequately remedied

later. And although these Plaintiffs assert that Florida’s existing manual recount

scheme must be invalidated for now and in the future, no one suggests that another

election implicating those procedures is underway or imminent.

Plaintiffs’ other allegations of irreparable injuries to justify a preliminary

injunction are unconvincing. The candidate Plaintiffs contend that if the manual

25

recounts are allowed to proceed, simply rejecting the results of those recounts after

the conclusion of this case will not repair the damage to the legitimacy of the Bush

Presidency caused by “broadcasting” the flawed results of a recount that put Vice

President Gore ahead. But the pertinent manual recounts have already been

concluded, and the results from those recounts widely publicized. Moreover, we

reject the contention that merely counting ballots gives rise to cognizable injury.

Plaintiffs also contend that a violation of constitutional rights always

constitutes irreparable harm. Our case law has not gone that far, however. See,

e.g., City of Jacksonville, 896 F.2d at 1285 (“No authority from the Supreme Court

or the Eleventh Circuit has been cited to us for the proposition that the irreparable

injury needed for a preliminary injunction can properly be presumed from a

substantially likely equal protection violation.”); Cunningham v. Adams, 808 F.2d

815, 821-22 (11th Cir. 1987) (affirming denial of preliminary injunction in action

alleging Fourteenth Amendment violations, and finding no abuse of discretion in

district court’s rejection of the plaintiff’s argument that “irreparable injury will be

presumed where there has been a violation of substantive constitutional rights”);

see also Hohe v. Casey, 868 F 2d 69, 73 (3d Cir. 1989) (“Constitutional harm is

not necessarily synonymous with the irreparable harm necessary for issuance of a

preliminary injunction.”). The only areas of constitutional jurisprudence where we

26

have said that an on-going violation may be presumed to cause irreparable injury

involve the right of privacy and certain First Amendment claims establishing an

imminent likelihood that pure speech will be chilled or prevented altogether. See

City of Jacksonville, 896 F.2d at 1285 (citing Cate v. Oldham, 707 F.2d 1176,

1189 (11th Cir. 1983) and Deerfield Med. Ctr., 661 F.2d at 338); see also Hohe,

868 F.2d at 72-73 (“[T]he assertion of First Amendment rights does not

automatically require a finding of irreparable injury, thus entitling a plaintiff to a

preliminary injunction if he shows a likelihood of success on the merits. Rather, . .

. it is the ‘direct penalization, as opposed to incidental inhibition, of First

Amendment rights [which] constitutes irreparable injury.’”) (quoting Cate, 707

F.2d at 1188)). This is plainly not such a case. Cf. City of Mobile v. Bolden, 446

U.S. 55, 76, 100 S. Ct. 1490, 1505 (1980) (constitutional right to vote, and the

principle of equality among voters, is conferred by the Equal Protection Clause of

the Fourteenth Amendment) (citing Reynolds v. Sims, 377 U.S. 533, 84 S. Ct.

1362 (1964)).

Simply put, this principle is the law: we may reverse a district court’s

denial of a preliminary injunction if and only if we find that the court clearly

27

abused its discretion.11 Our review, therefore, must be highly deferential. See,

e.g., Carillon Importers, 112 F.3d at 1126 (“The review of a district court’s

decision to grant or deny a preliminary injunction is extremely narrow in scope.”);

Revette, 740 F.2d at 893 (“Appellate review of such a decision is very narrow.”).

As we have explained:

This limited review is necessitated because the grant or denial of a

preliminary injunction is almost always based on an abbreviated set of

facts, requiring a delicate balancing of the probabilities of ultimate

success at final hearing with the consequences of immediate

irreparable injury which could possibly flow from the denial of

preliminary relief. Weighing these considerations is the responsibility

of the district court.

Id. (quoting Gray Line Motor Tours, Inc. v. City of New Orleans, 498 F.2d 293,

296 (5th Cir. 1974)) (internal quotation marks and additional citation omitted).

The abuse-of-discretion standard, therefore, serves an important and vital purpose.

In the case now before us, the district court expressly found that Plaintiffs

did not meet their burden of showing that immediate irreparable harm would result

if preliminary injunctive relief were not entered. It did so largely because the

11

The district court did not peg its finding of no irreparable harm to any incorrect

legal principle. On the contrary, the district court found that, on the record presented to it, no

irreparable harm had been proved. See Siegel v. LePore, 2000 WL 1687185 (S.D. Fla. Nov. 13,

2000), at *8 (“In addition, we find Plaintiffs’ alleged injuries on an as-applied basis to be

speculative, and far from irreparable, at this stage in the electoral recount process . . . . The

inconclusive state of these recount processes coupled with their different factual postures

counsels against preliminary uniform injunctive relief at this time.”).

28

limited record before it did not support Plaintiffs’ claims of harm. That critical

finding remains just as compelling, and the irreparability of the alleged injury is no

more established, today.

Accordingly, we cannot say that the district court abused its broad discretion

in finding that Plaintiffs did not meet their burden of showing at least a substantial

likelihood of irreparable injury. Because proof of irreparable injury is an

indispensable prerequisite to a preliminary injunction, Plaintiffs are not entitled to

a preliminary injunction at this time; and the district court’s order must be

affirmed. See, e.g., Canal Authority v. Callaway, 489 F.2d 567, 574 (5th Cir.

1974) (“[W]here no irreparable injury is alleged and proved, denial of a

preliminary injunction is appropriate.”). The Court does not at this time decide the

merits of Plaintiffs’ constitutional arguments.12

AFFIRMED.

12

A decision by the Court on the likelihood of success would require the Court to

reach, in some sense, constitutional questions. Even for those of us who believe that the record

will not support a substantial likelihood of success on the merits, it is a “fundamental and

longstanding principle of judicial restraint . . . that courts avoid reaching constitutional questions

in advance of the necessity of deciding them.” Lyng v. Northwest Indian Cemetary Protective

Ass’n, 485 U.S. 439, 445, 108 S. Ct. 1319, 1323 (1988). Given our view on the issue of injury,

no necessity is present here.

29

ANDERSON, Chief Judge, concurring specially:

I join in the opinion of the Court. I subscribe to the entire opinion including,

inter alia, the holding and reasoning that Plaintiffs have failed to demonstrate

irreparable injury. Although I agree that judicial restraint cautions against the

court’s addressing constitutional issues unless necessary, it does not seem

inappropriate for me in light of the extensive dissents, to discuss my own views

about the likelihood of success on the merits of Plaintiffs’ constitutional issues.

I. LIKELIHOOD OF SUCCESS

A. Standard of Review

A party seeking a preliminary injunction must establish the following four

elements: (1) a substantial likelihood of success on the merits; (2) a substantial

threat of irreparable injury; (3) that its own injury outweighs the injury to the

nonmovant; and (4) that the injunction would not disserve the public interest. See

Haitian Refugee Center, Inc. v. Baker, 949 F.2d 1109, 1110 (11th Cir. 1991).

I note at the outset that the scope of this review of the district court’s denial

of injunctive relief is limited to whether the district court abused its discretion. See

Sierra Club v. Georgia Power Co., 180 F.3d 1309, 1310 (11th Cir. 1999) (“The

30

grant or denial of a preliminary injunction is a decision within the sound discretion

of the district court.”). The district court must exercise its discretion “in deciding

upon and delicately balancing the equities of the parties involved.” United States

v. Lambert, 695 F.2d 536, 539 (11th Cir. 1983) (quoting Tatum v. Blackstock, 319

F.2d 397, 401-02 (5th Cir. 1963)). In this review, I adopt the district court's

findings of fact unless clearly erroneous, but I review de novo jurisdictional issues

and issues of law. See SEC v. Unique Financial Concepts, Inc., 196 F.3d 1195,

1198 (11th Cir. 1999). “Because a preliminary injunction is ‘an extraordinary and

drastic remedy,’ its grant is the exception rather than the rule, and plaintiff must

clearly carry the burden of persuasion.” Lambert, 695 F.2d at 539 (quoting Texas

v. Seatrain Int’l, S.A., 518 F.2d 175, 179 (5th Cir. 1975)).

B. Constitutional Delegation of Authority to the States

The Constitution delegates to the states the authority to establish and

implement procedures for selecting Presidential electors. The Constitution

provides that “[e]ach State shall appoint, in such Manner as the Legislature thereof

may direct, a Number of Electors. . . .” U.S. Const. art. II, § 1, cl. 2.1 The United

1

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 Electors, equal to the whole Number of

31

States Code provides that the timely appointment of Presidential electors pursuant

to state law is conclusive. See 3 U.S.C. § 5.2 The Supreme Court has confirmed

this broad delegation of power to the states, subject to the limitation that a state

may not exercise this power in a manner that violates specific provisions of the

Constitution of the United States. See McPherson v. Blacker, 146 U.S. 1, 13 S. Ct.

3 (1892). See also Anderson v. Celebrezze, 460 U.S. 780, 796 n.18, 103 S. Ct.

1564, 1573 n.18 (1983) (stating that “[t]he Constitution expressly delegates

authority to the States to regulate the election of Presidential electors,” but that this

does not give states the power to impose unconstitutional burdens on the right to

vote); Williams v. Rhodes, 393 U.S. 23, 29, 89 S. Ct. 5, 9 (1968) (stating that the

Senators and Representatives to which the State may be entitled in

the Congress: but no Senator or Representative, or Person holding

an Office of Trust or Profit under the United States, shall be

appointed an Elector.

2

3 U.S.C. § 5 provides:

If any State shall have provided, by laws enacted 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 meeting 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.

32

extensive powers granted to the states to pass laws regulating the selection of

electors is subject to the limitation that these powers “may not be exercised in a

way that violates other specific provisions of the Constitution”); Duncan v.

Poythress, 657 F.2d 691, 699 (5th Cir. Unit B 1981) (stating that while the

Constitution provides no guarantee against innocent irregularities in the

administration of state elections, in rare situations where state election procedures

undermine the basic fairness and integrity of the democratic system, a

constitutional violation exists).

While the unconstitutional exercise of state power is prohibited, the Supreme

Court has recognized that a state’s regulations governing the electoral process will

inevitably impact, in a manner that may burden or restrict, its citizens’ exercise of

their right to vote. See Burdick v. Takushi, 504 U.S. 428, 433, 112 S. Ct. 2059,

2063 (1992); Anderson, 460 U.S. at 788, 103 S. Ct. at 1570. The Supreme Court

has acknowledged that such restrictions are necessary “if [elections] are to be fair

and honest . . . .” Storer v. Brown, 415 U.S. 724, 730, 94 S. Ct. 1274, 1279 (1974).

In the context of a Presidential election, the Supreme Court has confirmed that a

state’s interest in conducting an orderly and fair election is “generally sufficient to

justify reasonable, nondiscriminatory restrictions.” Anderson, 460 U.S. at 788,

103 S. Ct. at 1570.

33

To preserve the essential balance between states’ power to govern elections

and voters’ constitutional rights, the Supreme Court has developed a flexible

standard to use in assessing constitutional challenges to a state’s regulation of

elections. The Supreme Court described this standard succinctly in Burdick v.

Takushi, 504 U.S. 428, 112 S. Ct. 2059 (1992):

[W]hen [First and Fourteenth Amendment] rights are subjected to

severe restrictions, the regulation must be narrowly drawn to advance

a state interest of compelling importance. But when a state election

law provision imposes only reasonable, nondiscriminatory restrictions

upon the First and Fourteenth Amendment rights of voters, the State's

important regulatory interests are generally sufficient to justify the

restrictions.

Id. at 434, 112 S. Ct. at 2063 (internal quotation marks and citations omitted).

Our Circuit’s precedent addressing constitutional challenges to state election

processes has reflected comparable deference to state regulation of elections. We

have held that the scope of voters’ exercise of their right to vote is restricted in the

state election context by considerations of “[t]he functional structure embodied in

the Constitution, the nature of the federal court system and the limitations inherent

in the concepts both of limited federal jurisdiction and the remedy afforded by

section 1983 . . . .” Gamza v. Aguirre, 619 F.2d 449, 452-53 (5th Cir. 1980);3 see

3

The Eleventh Circuit, in the en banc decision Bonner v. City of Prichard, 661

F.2d 1206, 1209 (11th Cir. 1981), adopted as precedent decisions of the former Fifth Circuit

rendered prior to October 1, 1981.

34

also Curry v. Baker, 802 F.2d 1302, 1314 (11th Cir. 1986) (“Although federal

courts closely scrutinize state laws whose very design infringes on the rights of

voters, federal courts will not intervene to examine the validity of individual

ballots or supervise the administrative details of a local election. Only in

extraordinary circumstances will a challenge to a state election rise to the level of a

constitutional deprivation.”) (internal citation omitted); Duncan, 657 F.2d at 701.

We have emphasized that federal court intervention is not appropriate in “garden

variety” disputes over election irregularities, but that redress of alleged

constitutional injuries is appropriate if “the election process itself reaches the point

of patent and fundamental unfairness . . . .” Roe v. Alabama, 43 F.3d 574, 580

(11th Cir. 1995) (quoting Curry, 802 F.2d at 1315).

These principles guide my analysis of the Plaintiffs’ likelihood of success in

their constitutional challenges to Florida’s election laws. The Plaintiffs argue on

appeal that the district court erred by refusing to enjoin the post-election manual

recounting of ballots in four Florida counties, because they allege that these

recounts violate the constitutional rights of the state’s voters. The Plaintiffs

advance two arguments, an equal protection argument and a substantive due

process argument. I discuss each in turn and cannot conclude based on the sparse

record before this Court that the district court abused its discretion in denying the

35

Plaintiffs’ motion for preliminary injunctive relief. I believe that the Plaintiffs

have failed to establish with sufficient clarity a severe burden or impact on the

rights of Florida voters. See Northeastern Fla. Chapter of Ass’n of Gen.

Contractors of Am. v. City of Jacksonville, Fla., 896 F.2d 1283, 1285

(“Preliminary injunctions of legislative enactments – because they interfere with

the democratic process and lack the safeguards against abuse or error that come

with a full trial on the merits – must be granted reluctantly and only upon a clear

showing that the injunction before trial is definitely demanded by the

Constitution.”). Rather, the alleged impacts are reasonable and are justified by

their furtherance of the state’s important regulatory interests in ensuring accurate

and complete election results. Accordingly, the Plaintiffs fail to make the requisite

showing of a substantial likelihood of success on the merits of their claims, and the

district court thus did not abuse its discretion in refusing to grant a preliminary

injunction.

C. Equal Protection Claim

The Plaintiffs claim that Florida’s statutory manual recount provision as

applied in this case violates the rights of all voters to be treated equally because the

manual recounts are limited to four heavily Democratic counties. The crux of the

36

Plaintiffs’ equal protection argument is that some ballots in counties not

conducting manual recounts will not be counted despite the voters’ intent, because

the ballots are not machine-legible, while identical ballots in counties conducting

manual recounts will be counted.4 The argument boils down to this: there is

greater certainty in some counties than in others that every voter’s intent is

effectuated. I conclude that this argument fails to state a violation of the equal

protection clause.

Under the framework developed by the Supreme Court, when a state election law

severely burdens voters’ constitutional rights, it must be narrowly tailored to serve

a compelling interest; however, lesser burdens trigger less exacting review, and a

state's important regulatory interests are typically enough to justify reasonable,

nondiscriminatory restrictions. Timmons v. Twin Cities Area New Party, 520 U.S.

351, 358, 117 S. Ct. 1364, 1370 (1997) (citing Burdick, 504 U.S. at 434, 112 S. Ct.

at 2063).

4

For example, the Plaintiffs point to the fact that some ballots that are imperfectly

punched will be counted in at least one manual-recount county, while an identical ballot would

not be machine-counted, and thus would not be counted in a county not conducting manual

recounts. In Florida Democratic Party v. Palm Beach County Canvassing Bd., No. 00-11078

(Fla. Palm Beach Co. Cir. Ct., Nov. 22, 2000), Circuit Judge Jorge Labarga held that the Palm

Beach County Canvassing Board could not follow a policy of per se exclusion of any ballot, but

that each ballot must be considered in light of the totality of circumstances and that where the

voter’s intent could be fairly and satisfactorily ascertained, that intent should be given effect.

37

The first step in this analysis, then, is to determine whether Florida’s manual

recount provision severely burdens the rights of those voters in counties not

conducting manual recounts, because their ballots receive less scrutiny than those

of voters in counties conducting manual recounts. I believe that it does not.

In reaching this conclusion, I note first that the Plaintiffs could not credibly

argue that the mere availability of manual recounts in some counties, but not in

others, places an inequitable burden on their right to vote. Taking this argument to

its logical conclusion would lead to the untenable position that the method of

casting and counting votes would have to be identical in all states and in every

county of each state. For example, if one state counted ballots by hand while

another counted by machine, there inevitably would be some ballots in the manual-

recount state that were counted notwithstanding the fact that the identical ballot in

the machine-count state would not be counted. The only apparent way to avoid

this disparity would be for every state to use an identical method of counting. No

court has held that the mere use of different methods of counting ballots constitutes

an equal protection violation. Such a position would be manifestly inconsistent

with the command of Article II, Section 1, Clause 2, that Presidential electors are

to be appointed in the manner directed by each state legislature. Accord Anderson,

460 U.S. at 796 n.18, 103 S. Ct. at 1573 n.18; Williams, 393 U.S. 23 at 29, 89 S.

38

Ct. at 9. Moreover, there is nothing uncommon or unusual in a state statute

permitting and regulating recounts. The Supreme Court has acknowledged that

recount procedures are a common and practical means of ensuring fair and accurate

election results. See Roudebush v. Hartke, 405 U.S. 15, 25, 92 S. Ct. 804, 810-11

(1972). In Roudebush, the Supreme Court noted with approval that Indiana, along

with many other states, had made vote recounts available to guard against

irregularity or error in the tabulation of votes, and the Court stated that such

recount provisions are “within the ambit of the broad powers delegated to the

States by Art. I, § 4.” Id.

The Plaintiffs attempt to bolster their treat-every-ballot-alike argument by

suggesting that partisan influences have tainted the operation of Florida’s manual

recount procedures in this case. The Plaintiffs allege that partisan influences have

intruded in two ways: (1) that the Florida Democratic Party selectively requested

manual recounts in a few populous counties that indicated significantly more Gore

votes than Bush votes in order to gain political advantage; and (2) that the lack of

statutory standards guiding the canvassing boards’ decisions to grant manual

recounts permitted partisan influences to influence those decisions.

The statute itself provides several safeguards against the kind of abuses

suggested by the Plaintiffs. Pursuant to the statute, a candidate or party can only

39

request, not mandate, a manual recount, and the decision is made by a county

canvassing board composed of three statutorily designated officials, including a

county court judge, none of whom are active participants in the candidacy of any

candidate. See Fla. Stat. §102.141. The canvassing board’s discretion is not

standardless, but rather is guided by a statutory purpose of determining the

intention of voters and correcting “an error in the vote tabulation which could

affect the outcome of the election.” Id. §102.166(5). Florida law further provides

that canvassing board meetings must be open to the public. See id. §286.0105(1).

Finally, a canvassing board’s decision to grant or deny a manual recount is subject

to judicial review. See Broward County Canvassing Bd. v. Hogan, 607 So. 2d 508

(Fla. 4th DCA 1992). Once a manual recount has been authorized, statutory

safeguards are provided to ensure that the results are fair and accurate, and

untainted by partisan manipulation.5 The combination of the composition of the

canvassing boards, the statutory standards guiding their discretion, and the

availability of judicial review provides meaningful checks on the exercise of

discretion by canvassing boards, and reduces the risk of partisan influences tainting

the process.

5

These provisions are described infra at 27.

40

Especially with respect to the Plaintiffs’ concern that political candidates can

select particular counties, but also relevant to the Plaintiffs’ concern about the

discretion of canvassing boards, any candidate has an equal right and an equal

opportunity to request manual recounts in any county. See Fla. Stat.

§102.166(4)(a). The Florida statute clearly placed the political parties in this case

on notice of this right and opportunity.6 Other safeguards relevant to both of the

Plaintiffs’ concerns include: the fact that both the request and decision must be

guided by the statutory standards of determining voters’ intent and correcting error

which could affect the outcome, see id. §102.166(5), (7)(b); the fact that the

decision is made, not by an ad hoc board, but by an existing board composed of

statutorily designated officials, including a county judge, who are not active

participants in the candidacy of any candidate, see id. §102.141; the fact that

canvassing board meetings and any manual recounts must be open to the public,

see id. §§ 102.166(6), 286.0105(1); and the fact that a canvassing board’s decision

6

The Plaintiffs do not claim to have lacked timely actual notice that manual

recounts were requested by the Florida Democratic Party in the four counties at issue in this

case. Indeed, the record reveals that the manual recounts were requested on Thursday,

November 9, 2000, and that the Republican Party representatives in Miami-Dade County and

Broward County filed responses opposing the manual recounts on the same day, well within the

72-hour statutory deadline for making requests in other counties, i.e., midnight on Friday,

November 10, 2000.

41

is subject to judicial review. See Broward County Canvassing Bd., 607 So. 2d at

508.

In assessing the severity of the impact on the right to vote, the scarcity of

evidence in the instant record is also significant. On the sparse record in this

appeal, I cannot conclude that Plaintiffs have made the showing requisite for relief

at this preliminary judgment stage. I cannot conclude that Plaintiffs have

established actual partisan manipulation or fraud. The Plaintiffs do not claim that

any canvassing board unfairly refused to conduct a manual recount. They argue

on appeal that canvassing board officials may have a strong personal interest in the

outcome of the election; however, such a vague allegation of a possible

manipulative or discriminatory motive does not rise to the level of severity

required to merit strict scrutiny of the Plaintiffs’ equal protection claims.

Applying a reasonableness standard, therefore, to judge the constitutionality

of Florida’s manual recount provision, see Burdick, 504 U.S. at 434, 112 S. Ct. at

2063, I would conclude that the state has sufficiently strong interests to justify the

manual recounting of votes within the established statutory framework. As

provided by the plain language of the statute, the manual recount provisions are

designed to remedy errors in the vote tabulation “which could affect the outcome

of the election” and to arrive at the true “voters’ intent.” Fla. Stat. §§ 102.166(5),

42

(7)(b). Florida has a strong interest in ensuring that the results of an election

accurately reflect the intent of its voters. A manual recount provision as a

supplement to mechanical counting provides a valid method to discern the will of

voters, where doubt is raised as to the validity of a machine count.

With respect to the county-by-county differences which the Plaintiffs allege

violate their equal protection rights, the state legislature expressly delegated to

each county the decision-making authority regarding whether and how to conduct

manual recounts, within the context of the statutory standard and procedures, and

subject to the statutory restraints and safeguards, all as discussed above. There are

strong and obvious state interests, both practical and administrative, supporting

Florida’s decentralization of this function to the county level. I cannot conclude

that the Constitution would require that any manual recount be conducted

statewide.7 A statewide requirement would impose a very significant

administrative burden, and an often unnecessary one, as there are innumerable

circumstances in which a manual recount would be warranted only in a single

county. The decision to decentralize is both reasonable and nondiscriminatory.

Indeed, in doing so, Florida is merely exercising the power expressly delegated in

Art. II, § 1, cl. 2, and it is exercising that power by following the same pattern of

7

Many states decentralize this process without requiring statewide recounts.

43

federalism reflected in the Constitution itself. Further, with respect to Florida’s

designation of candidates and parties as the entities authorized to request a manual

recount, this would seem to be a natural and reasonable choice. They are the ones

most likely to be alert to problems with a machine tally.8 Permitting only

candidates, political parties and committees, but not individual voters, to request

recounts is a common practice among the states.9 I believe that Florida’s interest

in the efficient administration of elections is sufficient to justify its decision to

provide for the implementation of its manual recount provision on a decentralized,

localized basis.

My conclusion that the deprivation of rights alleged by the Plaintiffs does

not merit strict scrutiny is supported by the contrast between this case and cases in

8

There are obvious and powerful reasons not to permit individual voters to trigger

a manual recount; their interests are adequately represented by the candidates and parties, and

individual voter participation would likely lead to administrative nightmares.

9

Many states permit a recount to be triggered only upon the request of a candidate,

political party and/or a political committee, but not upon the appeal of an individual voter. See

e.g., ARK. CODE ANN. § 7-5-319 (candidate); COLO. REV. STAT. § 1-10.5-106 (candidate);

IDAHO CODE § 34-2301 (candidate); IND. CODE ANN. § 3-12-11-1 (candidate or political party’s

county chairperson); IOWA CODE § 50.48 (candidate); LA. REV. STAT. § 1451 3-12-11-1

(candidate or political party); ME. REV. STAT. ANN. tit. 21-A, § 737-A (losing candidate); MD.

CODE. ANN., Elections § 12-101 (losing candidate); MO. REV. STAT. § 115.553 (candidate); N.J.

STAT. ANN. § 19:28-1 (candidate); OKLA. STAT. ANN. tit. 26, § 8-111 (candidate); OR. REV.

STAT. § 258.161 (candidate, political party or county clerk); TEX. ELEC. CODE ANN. § 212.023

(candidate); VA. CODE ANN. § 24.2-800 (candidate); WASH. REV. CODE § 29.64.010 (candidate

or political party); W. VA. CODE § 3-6-9 (candidate); WIS. STAT. ANN. § 9.01 (candidate); WYO.

STAT. ANN. §§ 22-16-109 & 110 (losing candidate or county canvassing board).

44

which the Supreme Court has applied strict scrutiny: those cases have involved a

complete deprivation of the right to vote or a differential weighting of votes based

on impermissible classifications. In O'Brien v. Skinner, 414 U.S. 524, 94 S. Ct.

740 (1974), the Supreme Court applied strict scrutiny to invalidate a state electoral

scheme that completely denied individuals the right to vote based on arbitrary

distinctions. See id. at 533, 94 S. Ct. at 745 (invalidating a New York absentee

ballot statute that operated to deny otherwise eligible prisoners the right to vote,

based solely on the prisoner’s county of incarceration). The reasoning of O’Brien

does not apply here, however, as the Plaintiffs do not assert that they have been

denied the right to vote or to have their vote counted; rather, they assert that their

votes have received unequal treatment in the post-election counting process.

In the one-person, one-vote cases, the Supreme Court has held that states’

weighted voting systems, which arbitrarily and systematically granted a lesser

voice to some voters based on their geographic location, violated the voters’ right

to equal protection. See Moore v. Ogilvie, 394 U.S. 814, 819, 89 S. Ct. 1493, 1496

(1969); Reynolds v. Sims, 377 U.S. 533, 563, 84 S. Ct. 1362, 1382 (1964); Roman

v. Sincock, 377 U.S. 695, 709-10, 84 S. Ct. 1449, 1458 (1964); Gray v. Sanders,

372 U.S. 368, 379-80, 83 S. Ct. 801, 808 (1963). The facts presented by those

cases are different from the facts here, however. The ballots of voters in Florida

45

counties conducting manual recounts are not receiving greater weight than are

votes elsewhere in Florida. The additional scrutiny of ballots afforded under

Florida’s manual recount procedures does not weigh the value of votes; it merely

verifies the count. Unlike the foregoing cases which have held that the systematic

unequal weighting of votes is unconstitutional, here there is no automatic,

inevitable, or systematic granting of greater weight to the choices of any voter or

class of voters.

This conclusion is further supported by the fact that the Constitution itself,

in Article II, § 1, cl. 2, contemplates that each state will direct its own (potentially

different) method of appointing Presidential electors. Within each state, federal

courts have acknowledged that diverse methods of voting may be employed. See

Hendon v. North Carolina State Bd. of Elections, 710 F.2d 177, 181 (4th Cir.

1983) (citing Carrington v. Rash, 380 U.S. 89, 91, 85 S. Ct. 775, 777 (1965)). The

Supreme Court has confirmed that recounts are well within the ambit of a state’s

authority, see Roudebush, 405 U.S. at 25, 92 S. Ct. at 810-11, and the manual

counting of ballots has been commonplace historically. In the light of the

constitutional delegation of authority to the states, confirmed by case law, I believe

that manual recounts in some counties, while identical ballots in other counties are

46

counted and recounted only by machine, and the inevitable variances that this will

produce, do not in themselves severely burden the right to vote.

Florida’s statutory manual recount provision does not limit the Plaintiffs’

ability to cast their votes, nor significantly undermine the certainty that their votes

will be counted. While the statute permits enhanced scrutiny to be given to ballots

in counties where the candidates or parties have requested and the canvassing

boards have authorized a manual recount, the statute provides ample safeguards to

ensure that the decision to conduct manual recounts, and the manner in which the

recounts are conducted, is open, fair, and accurate. While there is some potential

for the statute to be manipulated by those with partisan interests, the sparse record

here does not in my opinion establish a clear showing of partisan fraud or

misconduct that would be required in this preliminary injunction stage. Nor does

the record reveal concrete evidence of substantial or uncorrected errors in manual

counting that have generated erroneous vote tabulations. Therefore, I conclude

that at this stage the Plaintiffs have failed to sufficiently demonstrate a severe

impact on their equal protection rights, so that heightened scrutiny of Florida’s

manual recounts is not merited. See Burdick, 504 U.S. at 434, 112 S. Ct. at 2063.

I believe that Florida’s important regulatory interests are sufficient to justify the

47

reasonable, nondiscriminatory impact the Plaintiffs have shown to their voting

rights. 10

10

Much of Plaintiffs’ argument focuses on the assumption that a candidate’s self-

interest in selecting counties likely to produce more undervotes for him introduces an invidious

and unconstitutional discrimination. My discussion in text reveals the weaknesses which I see in

this argument. In summary, a candidate can only request, not mandate, a recount. The decision

is made by a county canvassing board with several built-in statutory safeguards – including the

composition of the board (preordained county officials, including a county judge, none of whom

can be active in any candidacy), statutory standards to guide the board’s discretion (relating to

the intention of voters and an error in the mechanical tabulation), and the fact that the board’s

meetings must be open and are subject to public scrutiny and court review. Strong state interests

support county-level decentralization; mandating statewide recounts in every instance would

impose severe administrative burdens. Rather than invidious discrimination, I suggest that the

statute contemplates that candidates or parties are the appropriate entities to make such request

because their self-interest prompts them to be alert to problems in a machine tally which might

make a recount appropriate. Like the statutory contemplation, a requesting candidate would also

contemplate that any opposing candidate would be alert to problems in counties favorable to

him. There is an equal right and an equal opportunity in that respect, as stated clearly in the

statute. Nothing in the statute suggests that only a candidate losing in a particular county can

make a request in that county; the statutory standard is an error in the vote tabulation that could

affect the outcome of the election. Nothing suggests that the statute means the “outcome” in that

particular county; rather, the statute says “outcome of the election” itself. Nothing suggests that

a canvassing board may not consider the potential effects of other recounts in its own decision to

authorize a manual recount. Nothing prevents a candidate or a party requesting a manual recount

from notifying a canvassing board of the fact that other counties may authorize or have

authorized manual recounts which may change the vote totals. As applied here, the record

before this Court does not reveal a motive by the Democratic Party to deprive the Republican

Party of its opportunity to request manual recounts. The requests challenged here were not

strategically delayed; rather, the requests were made on November 9, 2000, more than 24 hours

before the 72-hour deadline, leaving ample time for the opposing candidate to make requests in

response. Permitting candidates to request recounts is a reasonable way to promote the state’s

legitimate and strong interest in ensuring a full and accurate count of ballots where the voters’

intention can be fairly and satisfactorily ascertained, especially so when any request is

circumscribed by the statutory safeguards provided here. Indeed, many states permit candidates

or political parties to request such recounts; if Plaintiffs’ arguments prevail, the status of many

state election laws, and many elections, would be constitutionally suspect.

48

For the foregoing reasons, I would conclude that the Plaintiffs have failed to

prove a likelihood of success on the merits of their equal protection claim.

D. Substantive Due Process Claim

The Plaintiffs argue that the counting procedures used by counties

conducting manual recounts are arbitrary and rife with irregularities that constitute

a denial of due process. Specifically, the Plaintiffs allege that the standards used to

decide which marks or punches on a ballot are counted as votes differ from county

to county and further that these standards have been changed mid-count in one

county. I believe that the record evidence fails to establish that the alleged

unreliability or inaccuracy of manual recounting rises to the level of a severe

burden on the right to vote.

In Curry v. Baker, 802 F.2d 1302 (11th Cir.1986), we refused to find a

constitutional violation in a state gubernatorial candidate’s argument that election

officials had miscounted ballots. See id. at 1319. We stated that, in order for the

election process to reach the point of “patent and fundamental unfairness,” the

“situation must go well beyond the ordinary dispute over the counting and marking

of ballots.” Id. at 1315 (quoting Duncan v. Poythress, 657 F.2d 691, 703 (5th Cir.

1981)). In Curry, we emphasized that a federally protected right is implicated only

49

“where the entire election process – including as part thereof the state’s

administrative and judicial corrective process – fails on its face to afford

fundamental fairness.’” Id. at 1317 (quoting Griffin, 570 F.2d at 1078).

These principles resonate in numerous federal cases holding that disputes

over human or mechanical errors in ballot counting, absent a showing of

intentional manipulation, do not rise to the level of a federal constitutional

violation. See Gold v. Feinberg, 101 F.3d 796, 802 (2d Cir.1996) (holding that

human errors resulting in the miscounting of votes, the presence of ineligible

candidates on ballot, and the late delivery of voting machines to some polling

places, did not rise to the level of a constitutional violation because adequate state

remedies existed); Bodine v. Elkhart County Elec. Bd., 788 F.2d 1270, 1272 (7th

Cir.1986) (concluding that voter-plaintiffs failed to state a constitutional claim

where mechanical and human error resulted in errors in counting votes, but where

there was no allegation that the defendants acted with intent to undermine the

election); Gamza v. Aguirre, 619 F.2d 449, 454 (5th Cir.1980) (concluding that

allegations of negligent vote counting did not state a constitutional claim);

Hennings v. Grafton, 523 F.2d 861, 864-65 (7th Cir. 1975) (stating that while due

process rights would be implicated on a showing of “willful conduct which

undermines the organic processes by which candidates are elected,” no

50

constitutional guarantee protects against inadvertent errors or irregularities;

instead, state law must provide the remedy); Pettengil v. Putnam County R-1 Sch.

Dist., 472 F.2d 121, 123 (8th Cir. 1973) (refusing to intervene in a controversy

over whether illegally cast ballots were mistakenly counted by local election

officials); Powell v. Power, 436 F.2d 84, 88 (2d Cir.1970) (concluding that no

federal remedy existed for human error resulting in non-party members mistakenly

allowed to vote in congressional primary).

Despite these precedents, in reliance on our opinion in Roe v. Alabama, 43

F.3d 574 (11th Cir. 1995), the Plaintiffs argue that post-election changes in ballot-

counting procedures are fundamentally unfair and thus rise above the level of

“garden variety” election disputes to constitute a substantive due process violation.

In Roe, a state court order would have forced Alabama election officials to count

absentee ballots that had been rejected pursuant to a state statute and in accordance

with previous state practice.11 See id. at 578. We concluded that such a post-

election departure from the state’s statutory mandate and previous election practice

would undermine the fundamental fairness of the election. See id. at 581. As we

explained in Roe, our decision was based on the fact that such a change would

11

The applicable Alabama statute required absentee voters to send their ballots

accompanied by an affidavit which was either notarized or signed by two witnesses. It was

undisputed in Roe that the previous practice in Alabama, as mandated by statute, had been to

disregard absentee ballots that were mailed in without the required affidavit.

51

disenfranchise those people who would have voted absentee, but were deterred

from doing so by the burden of complying with the statutory requirements for

completing absentee ballots. See id.; see also Griffin v. Burns, 570 F.2d 1065,

1078-79 (1st Cir.1978) (finding fundamental unfairness in a state’s unforeseeable

invalidation of absentee ballots which resulted in the disqualification of ten percent

of the total votes cast in a primary election). Cf. Bennett v. Yoshina, 140 F.3d

1218, 1227 (9th Cir. 1998) (rejecting a substantive due process challenge to

Hawaii’s decision to count blank ballots as votes against convening a state

constitutional convention, where there was no suggestion that voters in favor of the

constitutional convention had relied on the state’s previous practice of disregarding

blank ballots in a constitutional convention vote); Partido Nuevo Progresista v.

Barreto Perez, 639 F.2d 825, 828 (1st Cir.1980) (holding that the Supreme Court of

Puerto Rico’s decision to count mismarked ballots where the intent of the voter

was clear did not violate due process, because here could have been no detrimental

reliance by any voter on the assumed invalidity of mismarked ballots).

Our decision in Roe is distinguishable from the instant case in at least two

significant ways. First, at this stage of the litigation, the record does not establish

the requisite showing of a significant post-election departure from Florida’s

52

manual recount practices before this election.12 Unlike the circumstance in Roe,

where the post-election change of procedure violated a statutory mandate, in this

case Florida’s statute expressly provides for manual recounts and establishes the

voter-intent standard to be used in conducting the recounts. While the Plaintiffs

have alleged that various canvassing boards have used different standards or have

changed their standards with respect to the analysis of particular physical attributes

of ballots, the Plaintiffs have not alleged that any board has departed from a good-

faith attempt to determine the voters’ intent. Thus, the Plaintiffs have failed to

show any departure from statutory mandate or from a pre-election procedure that

rises to the level of fundamental unfairness.

12

There remain in the present record sufficient disputed facts as to any significant

change of practice that I cannot conclude with the necessary clarity that any significant number

of votes was counted pursuant to a changed practice.

My opinion would not change, even assuming that there may have been a change of

practice -- i.e., from counting only partially detached chads to counting ballots that were not

partially detached, but under the totality of the circumstances the intention of the voter could be

fairly and satisfactorily ascertained. See Florida Democratic Party v. Palm Beach County

Canvassing Board, No. 00-11078 (Fla. Palm Beach Co. Cir. Ct., Nov. 22, 2000). The statutory

standard – i.e., the determination of the voter’s intent within the Canvassing Board’s discretion,

subject to judicial review – has remained constant. Even assuming some change with respect to

the discretionary interpretation of particular physical attributes of ballots, there is no evidence in

this record that a practice has been implemented which is inconsistent with the plain statutory

standard, as was the case in Roe.

53

Second, Roe is distinguishable because this record does not show

detrimental reliance by voters. In this case, there is no evidence to suggest that a

voter in any county failed to adequately punch or mark a ballot in reliance on a

belief that a vote in some other county would not be counted if a ballot were only

partially punched, i.e., in reliance on an anticipated lack of a manual recount.

Indeed, it would be manifestly unreasonable to suggest such reliance. Quite the

contrary, the statute expressly puts voters on notice of the possibility of a manual

recount. As a corollary to this obvious lack of reliance, this case involves no

disenfranchisement of voters, unlike the disenfranchisement in Roe of people who

failed to vote absentee because of the inconvenience imposed by the statutory

notarization/witness requirement.

In addition to the lack of detrimental reliance by voters on Florida’s

previously established election procedures, the record before us is not sufficient to

conclude that the district court was clearly erroneous in declining to find

purposeful, systematic discrimination in the manual recounting procedures

employed. In fact, the manual recount statute mandates procedures to ensure

fairness and accuracy in the conduct of any manual recount. Any manual recount

must include at least one percent of the total votes cast and at least three precincts.

See Fla.Stat. §102.166(4)(d). A manual recount must be open to the public, and

54

counting teams must have at least two members who are, when possible, members

of at least two political parties. See id. § 102.166(6), (7)(a). Determination of the

voter’s intent is the statutory standard. See id. § 102.166(7)(b). Florida law

provides that the decisions and actions of county canvassing boards are subject to

judicial review, not only with respect to their decision on whether to conduct a

manual recount, as discussed above, but also with respect to the general validity of

their counting procedures. See Beckstrom v. Volusia County Canvassing Bd., 707

So. 2d 720 (Fla. 1998); Boardman v. Esteva, 323 So.2d 259 (Fla. 1975). State

courts have authority to review election challenges, whether brought by a candidate

or party as a protest under Fla. Stat. § 102.166, or brought by a candidate, qualified

voter, or taxpayer as a contest under Fla. Stat. § 102.168. A court may void a

challenged election result based on a finding of substantial irregularities that raise a

reasonable doubt as to whether the election results express the will of the voters.

See Beckstrom, 707 So. 2d at 725. These statutory safeguards are calculated to

protect against the risk of the abuses that the Plaintiffs fear. In this case, the

Plaintiffs have failed to persuade me that these safeguards were ineffective. The

district court found, based on the evidence stipulated at the hearing, that “no

evidence has been demonstrated that these recounts have generated erroneous

55

tabulations.” Based on my review of the evidence, I cannot conclude that this

finding was clearly erroneous.13

Under these circumstances, I am not persuaded that Plaintiffs have made the

requisite showing of a severe impact on their right to vote. On this record, they

have failed to prove that this case rises above a “garden variety” dispute over the

counting of ballots to reach the level of fundamental unfairness. Because Florida’s

strong state interests, as discussed above, justify a decentralized vote-counting

process, I conclude that the Plaintiffs fail to show a likelihood of success in

proving their substantive due process claim. Because the Plaintiffs fail to show a

substantial likelihood of success on the merits of their constitutional claims, they

fail to demonstrate that the district court abused its discretion in denying the

motion for preliminary injunctive relief.14

13

While this record reveals isolated observations of acts from which a fact finder

might infer an effort to dislodge a chad, I cannot conclude that the district court was clearly

erroneous. I see little or no evidence of actual intent to dislodge a chad, or that ballots were

counted when they were not already partially dislodged. I also note that the presence of

Republican and Democratic observers, in addition to the intense public scrutiny, helps to ensure

the integrity of the process.

14

The Plaintiffs also allege a First Amendment violation, essentially arguing that

Florida’s statute grants county canvassing board members unlimited discretion to impinge on

voter’s rights through arbitrary decisions regarding whether to conduct manual recounts. In

another articulation of their argument, the Plaintiffs argue that the canvassing board’s decisions

are governed by no standards. The Plaintiffs argue that the right to vote is protected by the First

Amendment. See Williams v. Rhodes, 393 U.S. 23, 30-31, 89 S.Ct. 5, 10 (1968) (stating that the

right to vote is entitled to similar constitutional protections as the First Amendment right of

association); Carrington v. Rash, 380 U.S. 89, 85 S. Ct. 775 (1965) (holding that the right to vote

is a fundamental right protected by the Equal Protection Clause). They argue that the

56

II. CONCLUSION

For the foregoing reasons, I would conclude that Plaintiffs have failed to

establish a substantial likelihood of success warranting federal court intervention

on either equal protection or due process grounds. The conclusion of a majority of

this court that the district court did not abuse its discretion in concluding that

Plaintiffs had failed to establish a substantial likelihood of irreparable harm, and

my conclusion in this concurring opinion that Plaintiffs have failed to establish a

Constitution prohibits the overbroad exercise of discretion by officials over First Amendment

rights and, therefore, that Florida’s statute violates the Constitution. See Forsyth County v.

Nationalist Movement, 505 U.S. 123, 129-30, 112 S. Ct. 2395, 2401 (1992) (stating that an

“impermissible risk of suppression of ideas” exists where “an ordinance . . . delegates overly

broad discretion to the decisionmaker”).

Contrary to the Plaintiffs’ argument, cases implicating First Amendment standards have

involved claims that pure speech might be chilled or prevented altogether. See Forsyth County,

505 U.S. at 129-30, 112 S. Ct. at 2401; City of Jacksonville, 896 F.2d at 1285 (citing Cate v.

Oldham, 707 F.2d 1176, 1189 (11th Cir. 1983) and Deerfield Med. Ctr., 661 F.2d at 338). This

is not such a case. Instead, the constitutional right to vote, and the principle of equality among

voters, is protected under the Equal Protection Clause of the Fourteenth Amendment. See City

of Mobile v. Bolden, 446 U.S. 55, 76, 100 S. Ct. 1490, 1505 (1980)(citing Reynolds v. Sims, 377

U.S. 533, 84 S. Ct. 1362 (1964)). I conclude that the Florida manual recount statute satisfies

equal protection because it contains constitutionally sufficient standards to constrain the

discretion of canvassing board officials. I describe the statutory and judicially imposed

constraints on these officials’ discretion supra at 11-13. Based on these constraints, I conclude

that the challenged provisions of Florida election law do not permit officials to exercise overly

broad discretion over voters’ rights.

I thus conclude that the Plaintiffs have failed to show a severe burden on their voting

rights; instead, the statutory safeguards ensure only reasonable, nondiscriminatory burdens. I

conclude that Florida’s important interests in ensuring accurate, complete election results, and

the state’s strong interest in its established system of decentralized administration of elections,

justify the reasonable, nondiscriminatory impact of Florida’s manual recount statute on voters’

rights. The Plaintiffs thus fail to establish a First Amendment violation.

57

substantial likelihood of success, are supported by the lack of evidentiary

development in this case and by the preliminary injunction posture of the case.

Especially significant in our consideration of this case is the sparse record on

which Plaintiffs have chosen to proceed.15 The record before us is without the

benefit of discovery or evidentiary hearing. Where, as here, a party has chosen to

forego an evidentiary hearing, it is not entitled to have its disputed representations

accepted as true. See Charette v. Town of Oyster Bay, 159 F.3d 749, 755 (2d Cir.

1998). The scant evidence in this record has not been tested by the adversarial

process, notwithstanding the fact that material and relevant facts are in dispute. In

addition, the preliminary injunction posture of this case cautions against federal

court intervention. See Northeastern Fla. Chapter of Ass’n of Gen. Contractors of

Am. v. City of Jacksonville, Fla., 896 F.2d 1283, 1285 (“Preliminary injunctions of

legislative enactments – because they interfere with the democratic process and

lack the safeguards against abuse or error that come with a full trial on the merits –

must be granted reluctantly and only upon a clear showing that the injunction

before trial is definitely demanded by the Constitution.”). I cannot conclude that

Plaintiffs on this sparse record have demonstrated a clear showing, either with

15

We noted in our November 27, 2000, Order that Plaintiffs’ motion for permanent

injunctive relief has remained pending in the district court, and that court has remained available

for further factual development.

58

respect to the likelihood of success or irreparable injury, and thus have not made a

clear showing that an injunction before trial is definitely demanded by the

Constitution.

For the foregoing reasons, I thus specially concur, in addition to joining the

opinion of the court.

59

TJOFLAT, Circuit Judge, dissenting, in which BIRCH and DUBINA, Circuit

Judges, join and in which CARNES, Circuit Judge, joins as to Part V. of Judge

Tjoflat’s dissent in Touchston v. McDermott:

I dissent. The Florida election scheme at issue is unconstitutional for the

reasons set forth in my dissenting opinion in Touchston v. McDermott, No. 00-

15985 (11th Cir. Dec. 6, 2000) and by Judge Carnes in his dissenting opinion.

60

BIRCH, Circuit Judge, dissenting, in which TJOFLAT and DUBINA, Circuit

Judges, join:

While I concur in the dissenting opinions by my colleagues, Judges Tjoflat,

Dubina and Carnes, my concern about the constitutional deprivations alleged in

these cases is focused on the lack of standards or guiding principles in the Florida

manual recount statute. Florida’s statutory election scheme envisions hand

recounts to be an integral part of the process, providing a check when there are

“error[s] in the vote tabulation which could affect the outcome of the election.”

See Fla. Stat. Ann. § 102.166(5). The 1989 Florida legislature, however, abdicated

its responsibility to prescribe meaningful guidelines for ensuring that any such

manual recount would be conducted fairly, accurately, and uniformly. While

Florida’s legislature was unquestionably vested with the power under Article II,

Section One of the United States Constitution to devise its own procedures for

selecting the state’s electors, it was also required to ensure that whatever process it

established comported with the equal protection and due process requirements of

the Fourteenth Amendment to that same Constitution.1 Other states, such as

Indiana, have provided clear and definitive standards under which manual recounts

1

See Moore v. Ogilvie, 394 U.S. 814, 818-19, 80 S.Ct. 1493, 1496 (1969) (discussing the

applicability of the Fourteenth Amendment to the nominating process for presidential

candidates).

61

are to be conducted. See Ind. Code § 3-12-1-9.5 (providing in part that chads that

have been pierced count as valid votes, but those with indentations that are not

separated from the ballot card do not). Absent similar clear and certain standards,

Florida’s manual recount scheme cannot pass constitutional muster.

Moreover, Congress, to which the electors from Florida will be ultimately

certified, has established a safe harbor, 3 U.S.C. § 5, that requires that such rules

and standards be established before the election. Because the 1989 Florida

legislature has, in my view, abdicated its responsibility to formulate

constitutionally clear and objective statutory rules and standards for the election

process in Florida, it has disenfranchised voters throughout the state.2 The well-

intended and responsible county canvassing boards across the state have been

given, in legislative terms, an unfunded mandate --- discern the voter’s intent

without any objective statutory instructions to accomplish that laudable goal. The

effect of such an unguided, standardless, subjective evaluation of ballots to

ascertain voter intent is to cause votes to be counted (or not to be counted) based

only upon the disparate and unguided subjective opinion of a partisan (two

2

See Fl. Stat. Ann. § 102.166 (West 1989). See generally Roe v. Alabama, 43 F.3d 574,

581-82 (11th Cir. 1995) (per curiam) (finding that the alteration of objective standards after the

election disenfranchised voters).

62

members are elected in partisan voting) canvassing board.3 Since their opinions as

to voter intent are standardless no meaningful judicial review is possible by a

Florida court. Accordingly, by finding an abridgement to the voters’ constitutional

right to vote, irreparable harm is presumed and no further showing of injury need

be made.4

It has been said that to err is human --- and humans vote. Thus, it should not

be surprising that the voting process is subject to error. However, as demonstrated

in the recent Presidential election, the frequency, magnitude and variety of error

associated with the exercise of this sacred right of citizenship is at once astounding

and deeply troubling. Morever, the media’s focus on the campaign preceding

3

See Fl. Stat. Ann. § 102.141 (providing that the County Canvassing Board shall be

comprised of a county court judge, chairman of the board of county commissioners and

supervisor of elections; Fl. Stat. Ann. § 124.01(2) (providing for popular election of county

commissioners); Fl. Const. Art. 8, Sec. 1(d) (providing for popular election of the supervisor of

elections).

4

We have indicated that the injury suffered by a plaintiff is “‘irreparable’ only if it cannot

be undone through monetary remedies.” Cunningham v. Adams, 808 F.2d 815, 821 (11th Cir.

1987). To that end, we have presumed irreparable harm to a plaintiff when certain core rights

are violated. See Baker v. Buckeye Cellulose Corp., 856 F.2d 167, 169 (11th Cir. 1988)

(irreparable harm presumed in Title VII cases); Cate v. Oldham, 707 F.2d 1176, 1188 (11th Cir.

1983) (irreparable injury presumed from violation of First Amendment rights); Deerfield Med.

Ctr. v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. Unit B 1981) (irreparable injury

presumed from violation of right to privacy under the Fourteenth Amendment); Northeastern

Florida Chapter of Ass’n of Gen. Contractors v. City of Jacksonville, Florida, 896 F.2d 1283,

1285-86 (11th Cir. 1990) (explaining that the basis for presuming irreparable injury in Cate and

Deerfield was that given the “intangible nature” of the violations alleged, the plaintiffs could not

effectively be compensated by an award of monetary damages). Cf. Richard Feiner & Co. v.

Turner Entm’t Co., 98 F.3d 33, 34 (2d Cir. 1996) (irreparable harm presumed when plaintiff

establishes a prima facie case of copyright infringement).

63

November 7, having been eclipsed by its subsequent frenzy, has left the average

citizen at the least skeptical, and at the worst cynical, about our democratic

institutions. Morever, in its present incarnation, the post-election debacle that

brings these cases to us for resolution may be cynically viewed by some as

depicted by Congresswoman Shirley Chisholm:

[P]olitics is a beautiful fraud that has been imposed on the people for

years, whose practitioners exchange gilded promises for the most

valuable thing their victims own: their votes. And who benefits the

most? The lawyers.

Shirley Anita Chisholm, Unbought and Unbossed, 1970. To respond in that way

would be a mistake.

While our nation’s citizens have every right to be concerned, exasperated,

fatigued and even cynical, it is my fervent hope that from these events they will

come to understand, if not appreciate, the role of government’s Third Branch in the

life of our precious democracy. Our basic function in this society is to provide a

forum in which disputes --- both great and small (although to those involved, a

dispute is never “small”) --- can be decided in an orderly, peaceful manner; and

with a high level of confidence in the outcome. Lawyers, as officers of the court,

are integral to that process in our adversarial system.

The right to vote --- particularly for the office of President of the United

States, our Commander-In-Chief, --- is one of the most central of our fundamental

64

rights in a democracy.5 Accordingly, any dispute that has at its core the legitimacy

of a presidential election and impacts upon every citizen’s right to vote, deserves

the most careful study, thought and wisdom that we can humanly bring to bear on

the issues entrusted to us. Thus, I feel compelled to attest to the fact that my

brother and sister judges have embraced this case with a sense of duty, concern,

and conscientious hard work that is worthy of the issues before us.

Aware of the importance of these cases6 and the urgency attendant to the

issues presented, we decided to take these disputes en banc --- that is, before the

5

An executive like the President has broad discretion; he has the power to affect every

voter, and thus every voter must be permitted to vote and to have his ballot both counted and

equally weighed. As the Supreme Court observed in Anderson v. Celebrezze, 460 U.S. 780, 794-

95, 103 S. Ct. 1564, 1573 (1983) (citations omitted):

[I]n the context of a Presidential election, state-imposed restrictions implicate a

uniquely important national interest. For the President and the Vice President of

the United States are the only elected officials who represent 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. Thus in a Presidential

election a State's enforcement of more stringent ballot access requirements,

including filing deadlines, has an impact beyond its own borders. Similarly, the

State has a less important interest in regulating Presidential elections than

statewide or local elections, because the outcome of the former will be largely

determined by voters beyond the State's boundaries.

6

These cases have arrived at the appropriate juncture and present circumstances are of

such an extraordinary scope that the “challenge to a state election rise[s] to the level of a

constitutional deprivation.” Curry v. Baker, 802 F.2d 1302, 1314 (11th Cir. 1986). See Roe, 43

F.3d at 580, 585. The dissent in Roe opined that federal courts should not interject themselves

into “state election disputes unless extraordinary circumstances affecting the integrity of the

state’s election process are clearly present in a high degree.” Id. at 585. I am convinced, and

surmise that the Supreme Court has concluded, that such a situation confronts us now.

65

entire court of twelve judges.7 Moreover, utilizing a procedure that we normally

employ in death penalty cases, we arranged through the clerks of the district courts

involved to have copies of all filings there “lodged” (i.e., copies provided) with us

contemporaneously.8 Hence, we have been able to review and study the progress

of the factual and legal matters presented in these cases from their inception.

Accordingly, long before the anticipated notices of appeal were filed, formally

bringing them to us, we were about the study and review of the legal issues to be

resolved. Thus, the reader of our opinions9 in this case should understand that our

time for consideration has been considerably longer than it might appear at first

blush.

Just as the electorate was divided in their good faith effort to cast their votes

for our nation’s chief executive, the members of this court have discharged their

duty to interpret the law in the context of this case in an unbiased and sincere

effort. Inevitably the pundits will opine that a judge’s decision is somehow linked

to the political affiliation of the President that appointed the judge. While we at all

levels of the judiciary have come to expect this observation we continue to regret

7

Fed.R.App.P. 35(a)(2).

8

11th Cir. R. 22-3.

9

All of our opinions are available to the public on the Internet at www.ca11.uscourts.gov

upon publication.

66

that some “think” that is so. It may be true that a judge’s judicial philosophy may

reflect, to some degree, the philosophy of the appointing President --- not a

surprising circumstance --- but to assume some sort of blind, mindless, knee-jerk

response based on the politics of a judge’s appointer does us and the rule of law a

grave injustice. More importantly it is just wrong.

I would hope that a careful and thoughtful review of the opinions of my

brothers and sisters would dispel any suggestion that their views on the important

issues before us are anything but the result of days of careful study and thoughtful

analysis --- because these opinions are nothing less. We have done our duty. I am

proud to be associated with my judicial colleagues that have been called upon to

discharge their respective constitutional obligations, albeit reluctantly --- both on

this court and the many other state and federal courts involved. Indeed these recent

events have been a civics lesson for some --- particularly the young; but they have

also been a reminder that our nation’s system of governance has weathered the test

of time and tumult; the old three-legged stool10 still stands erect and with sufficient

strength to support the hopes and dreams of our nation’s citizens.

10

The three branches of our government, the Legislative, the Executive, and the Judicial

(“The Third Branch”), have often been compared to the familiar early American three-legged

stool.

67

The revered and quotable jurist, Learned Hand, once observed: “The spirit of

liberty is the spirit which is not too sure that it is right . . .”11 While not “right”

about many things, I am confident that we have given these matters the attention

they justly deserve and trust that, at least, we have laid the groundwork for an

informed decision by the justices of the United States Supreme Court should they

exercise their judgment to hear this case. It is my hope that they do. We have

done our best so that they can do their best.

11

The corollary to that thought was expressed by the elder statesman from Florida,

Congressman Claude Pepper: “One has the right to be wrong in a democracy.” Cong. Rec. May

27, 1946.

68

DUBINA, Circuit Judge, dissenting, in which TJOFLAT and BIRCH, Circuit

Judges, join:

I agree with the majority’s disposition of the issues of abstention, res

judicata, collateral estoppel, and mootness. I also join and concur fully in the

dissenting opinions filed by Judges Tjoflat, Birch, and Carnes. I dissent from the

disposition of the remaining issues discussed in the majority’s opinion.

Specifically, I disagree with the notion that we cannot convert the preliminary

injunction and reach the merits of this case. See Thornburgh v. American College

of Obstetricians & Gynecologists, 467 U.S. 747 (1986).

As to the merits of this case, the legal principles set forth in the cases of

Moore v. Ogilvie, 394 U.S. 814 (1969), and Roe v. Alabama, 43 F.3d 574 (11th

Cir. 1995), govern. Based on these principles, I would reverse the judgment of the

district court in this case.

69

CARNES, Circuit Judge, dissenting, in which TJOFLAT, BIRCH and DUBINA,

Circuit Judges, join:

I agree with the Court that the lawsuits in this case and in Touchston v.

McDermott, No. 00-15985, are not barred by the Rooker-Feldman doctrine or by

the doctrines of res judicata, collateral estoppel, or mootness, and that there is no

basis for this Court to abstain.1 I disagree, however, with the Court’s conclusion

that irreparable injury has not been shown in these two cases. My disagreement

with that conclusion stems from my belief that the selective manual recounts in

some of the Florida counties that use the punch card system of voting violate the

equal protection rights of the voters in the other punch card system counties. The

harm from that violation exists and will continue so long as the results of any of

those selective manual recounts are included in Florida’s certified election results.

Because the existence and nature of the constitutional violation is inextricably

linked to the question of irreparable injury, I turn first to a discussion of the

selective manual recounts in this case, and how those recounts violated the

1

I address the two cases jointly in this opinion, which is appropriate in view of the

similarity of issues, substantial overlap of parties, cross reference in the briefs and oral argument

in each case to the other, and the district court in Touchston’s incorporation by reference of the

reasoning of the district court’s opinion in Siegel.

In order to avoid duplication, I will adopt in my dissenting opinion in Touchston what I

have said here.

70

constitutional rights of the similarly situated voters who did not receive the benefit

of them.

Of course, not every election dispute implicates the Constitution and justifies

federal court intervention, and “[g]enerally, federal courts do not involve

themselves in ‘garden variety’ election disputes.” Roe v. Alabama, 43 F.3d 574,

580 (11th Cir. 1995) (Roe I) (quoting Curry v. Baker, 802 F.2d 1302, 1315 (11th

Cir. 1986)). But this case is more than a garden variety election dispute. It

concerns more than the validity of individual ballots or the administrative details of

an election. This case involves part of a state’s election law designed in a way that

permits or even encourages infringement of the federal constitutional rights of a

large category of voters, and a claim that the law was actually applied in a way that

violated those rights. Federal courts have the authority and duty to address and

decide such claims. That is what the Supreme Court did in Moore v. Ogilvie, 394

U.S. 814, 89 S.Ct. 1493 (1969) (striking down as unconstitutional part of Illinois’

method for selecting Presidential electors). That is what we did in the Roe cases.

See Roe I, 43 F.3d at 580 (affirming preliminary injunction against counting votes

that state trial court had ordered to be counted); Roe v. Alabama, 52 F.3d 300 (11th

Cir. 1995) (Roe II) (same); Roe v. Alabama, 68 F.3d 404 (11th Cir. 1995) (Roe

III) (same as to permanent injunction). That is what we should do in this case.

71

The record in this case is not replete with factual detail, but there are

sufficient undisputed facts to establish a constitutional violation based upon the

selective manual recounts that were undertaken in only a few punch card counties

and the resulting discriminatory treatment or weighting of the votes of similarly

situated voters.2 For present purposes, I accept as fact everything represented as

fact in the affidavits filed by the Democratic Party, which is the party that

requested the selective manual recounts at issue in this case, and the chief party in

interest on the defendants’ side, and will add to them only those facts which neither

party disputes. Proceeding in that manner makes it appropriate to decide the merits

and whether permanent relief should be granted in these two appeals from the

denials of preliminary injunctions. See Thornburgh v. Am. Coll. of Obstetricians

& Gynecologists, 476 U.S. 747, 755 - 57, 106 S.Ct. 2169, 2176 (1986), overruled

on unrelated grounds, Planned Parenthood v. Casey, 505 U.S. 833, 112 S.Ct. 2791

(1992). The Thornburgh decision establishes that a court of appeals may decide

2

The plaintiffs also complain about the manual recount that took place in one county,

Volusia, which uses the optical scan or marksense system of voting. However, the evidence

makes it abundantly clear that Volusia County was plagued with a host of problems in tabulating

its vote, including outright equipment and software failures. There is no evidence that the manual

recount conducted in Volusia County was done for any reason except to correct those failures

and ensure that they did not taint the reported results. Nor is there any evidence in the record

that any other county had an optical scan system that suffered from similar problems but for

which no manual recount was ordered. The situation involving Volusia County is materially

different from that involving the punch card system counties of Broward, Palm Beach, and

Miami-Dade. Accordingly, I will not discuss Volusia County any further in this opinion.

72

the final merits of a case in an appeal from the grant or denial of a preliminary

injunction if “the facts are established or of no controlling relevance,” and it is not

a situation “when there is no disagreement as to the law, but the probability of

success on the merits depends on facts that are likely to be developed at trial.” Id.

at 757 & n. 8, 106 S.Ct. at 2177 & n. 8. The facts that are established or

undisputed in these two cases entitle the plaintiffs to relief for reasons I will

explain, and thus all disputed or undeveloped facts are of “no controlling

relevance.” 3

Proceeding in this manner, the Florida Democratic Party’s factual position

plus the undisputed facts are these. Twenty-four of Florida’s 67 counties use a

vote system in which the voter’s preference is expressed by punching a stylus

through a card that is later passed through a tabulating machine. See Siegel, Aff.

of William F. Galvin, Appendix to Brief of Florida Democratic Party (“Fla. Dem.

App.”) at tab 10; Chart A.4 There are different models of punch card tabulating

3

When a court of appeals decides the final legal merits of a case on an appeal from the

denial of a preliminary injunction, it does not review merely for an abuse of discretion. Instead,

its scope of review is plenary. See Thornburgh, at 757, 106 S.Ct. at 2176 (“The customary

discretion accorded to a District Court’s ruling on a preliminary injunction yields to our plenary

scope of review as to the applicable law.”).

4

One of the affidavits submitted to the district court by the Florida Democratic Party

states that 26 Florida counties use punch card voting systems. See Siegel, Aff. of Jon M.

Ausman, Appendix to Brief of Florida Democratic Party at tab 13. According to the affidavit,

that information was obtained from the Florida Secretary of State’s Web Site. Id. We know

now, however, based on official records provided by the Secretary of State, that only 24 Florida

73

machines, but all of them work by directing light at the punch card being fed

through the machine and reading the beam that results from the light passing

through the hole that has been punched in the card by the voter. See Siegel, Aff. of

William F. Galvin, Fla. Dem. App. at tab 10. If the hole punched in the card is not

clear of any chad, there is a possibility, perhaps a likelihood, that the tabulating

machine will not count the vote. Id.

The failure of the punch card system to count all of the intended votes is a

problem inherent in that voting system. See, e.g., Siegel, Aff. of Ion V. Sancho,

Fla. Dem. App. at tab 9; Siegel, Aff. of William F. Galvin, Fla. Dem. App. at tab

10; Siegel, Aff. of Rebecca T. Mercuri, Fla. Dem. App. at tab 16. It is a serious

problem that results in a significant number of intended votes not being counted;

and those intended votes will remain uncounted unless there is a manual recount

involving visual inspection of the punch cards by human beings. See Siegel, Aff.

of Jackie Winchester, Fla. Dem. App. at tab 8; Siegel, Aff. of Ion V. Sancho, Fla.

Dem. App. at tab 9; Siegel, Aff. of William F. Galvin, Fla. Dem. App. at tab 10;

Siegel, Aff. of Jon Ausman, Fla. Dem. App. at tab 13; Siegel, Aff. of Rebecca T.

Mercuri, Fla. Dem. App. at tab 16. While plaintiffs question whether human

beings can accurately ascertain the intent of a voter by inspecting a punch card

counties use punch card voting systems. See Chart A. Although the difference is not material to

resolution of the legal issues, I will use the correct number, which is 24.

74

with an indented, pregnant, swinging, or otherwise not fully removed chad, the

theory of the selected manual recounts undertaken in this case is that it can be

done, and that as a result intended votes which would otherwise have been

disregarded can and will be counted in a manual recount.

Indeed, the unwavering refrain of the Florida Democratic Party underlying

its requests for manual recounts in 3 punch card counties, and throughout all of the

state and federal litigation related to this case, has been that punch card systems

necessarily and invariably undercount votes which can only be recaptured and

considered by manual recounts. In justifying its request for manual recounts in the

3 counties, the Party told the Florida Supreme Court in a related state court case

that, “It is well established that machine tabulation of votes fail (sic) to capture

votes cast by a large number of voters, particularly when the number of votes cast

is substantial – almost six million in the case of Florida’s Presidential election.

Machine tabulation of these votes, without some additional process for counting

votes that the machines fail to tabulate, results in the disenfranchisement of

countless voters.” Answer Brief of Petitioners/Appellants Al Gore, Jr. and Florida

Democratic Party at 20, Palm Beach County Canvassing Bd. v. Harris, ___ So.2d

____ (filed in the Fla. Supreme Court Nov. 19, 2000) (Nos. SC00-2346, SC00-

2348 & SC00-2349); see also id. at 15 (“Underlying the addition of a provision for

75

a manual recount is an understanding that the process is more accurate than

machine counts, not less.”) (emphasis in original); id. at 16 (“[M]any studies

indicate that machine counts of punch card ballots produce significant

inaccuracies.”).

In the briefs the Democratic Party filed in our court in these two cases, it has

told us that:

The optical scanner voting system used by most Florida

counties provides good results, including a “non-vote”

percentage for the Presidency (where one would expect

“non-votes” to be very low) of only 0.40%. Punch card

voting, by contrast, which is in effect in the three larger

counties that have undertaken considerable manual recounts

... is much less reliable, yielding an improbable “non-vote”

percentage for the Presidency of over 3%.

Brief of Intervenor/Appellee Florida Democratic Party at 23-24, Touchston v.

McDermott, No. 00-15985 (filed in the 11th Cir. Nov. 28, 2000); see also id. at 10

(“Punch card ballots generate a consistently greater level of undervotes –

approximately 3.2% – due to imperfect perforations and still-appended chads.”).5

5

The figures I have quoted from the Florida Democratic Party’s brief were drawn by the

Party from the affidavit of Jon Ausman, which the Party filed in the district court in the Siegel

case. See Siegel, Aff. of Jon Ausman, Fla. Dem. App. at tab 13. In that affidavit, which is dated

November 12, 2000, Mr. Ausman states that those figures are based upon the best data he could

obtain at that time. The data was from only 18 of Florida’s 67 counties – 11 punch card counties

and 7 optical scan (or marksense) counties. Id. at paragraphs 6 - 7.

We now have complete figures from all 67 Florida counties, because the Secretary of

State as part of her official duties keeps election reports that counties are required by law to

submit to her. The Florida Supreme Court takes judicial notice of the contents of records kept by

76

The Democratic Party told the United States Supreme Court essentially the

same thing: “Because of the high percentage of undervotes created by punch card

voting systems, the vast majority of counties in Florida do not use them.” Brief of

Respondents Al Gore, Jr., and Florida Democratic Party at 4 n.2, Bush v. Palm

Beach County Canvassing Bd., No. 00-836 (filed in the United States Supreme

Court Nov. 28, 2000).

Summarizing its theory of the case, the Democratic Party has said: “the

evidence in this case suggests that some Florida voters could potentially be

disenfranchised because the automated systems utilized in some Florida counties

the Secretary of State, see State ex rel. Glynn v McNayr, 133 So. 2d 312, 315 (Fla. 1961), and so

may we, see generally Fed. R. Evid. 201; cf. Cash Inn of Dade, Inc. v. Metropolitan Dade

County, 938 F.2d 1239, 1243 (11th Cir. 1991) (minutes of a county commission meeting) (“A

district court may take judicial notice of public records within its files relating to the particular

case before it or other related cases.”).

The complete figures for all 24 punch card counties, which are contained in Chart C in

the appendix to this opinion, show a combined 3.92 % “non-vote” or “no vote” rate in those

counties. The complete figures for all 41 marksense or optical scan counties, which are

contained in Chart F in the appendix to this opinion, show a combined 1.43% no vote rate in

those counties. (The number of punch card counties added to the number of optical scan counties

equals 65 instead of 67, because one county uses a lever machine system of voting and another

uses paper ballots counted by hand.).

The complete figures show us that the true difference between the no vote rates of the

punch card and optical scan counties is 3.92 % minus 1.43%, or 2.49 %, and not the difference

that Ausman’s incomplete figures show (3.2 % minus .40 %, or 2.8%). The complete figures

still show a significant difference between optical scan and punch card counties considered as a

whole, but the complete figures also show that in the optical scan counties the no vote rate is not

.40 %, which the Florida Democratic Party’s brief tells us “is to be expected,” but instead is

1.43%, or three times the Party’s “expected” rate.

77

caused thousands of votes to go uncounted. The only means whereby those

uncounted votes can be examined is to discern the intent Florida’s voters is (sic)

through a manual recount auditing process.” Response of Intervenor/Appellee the

Florida Democratic Party In Opposition to Appellants’ Emergency Motion for

Injunction Pending Appeal at 7, Touchston, No. 00-15985 (filed in the 11th Cir.

Nov. 16, 2000). In any punch card county where manual recounts are not

undertaken, the Party says, “outright disenfranchisement” occurs. See id. at 40

(“Each of the county standards employed [in the Palm Beach and Broward County

manual recounts] was, thus, a vast improvement over the outright

disenfranchisement that results from machine undercounts caused by hanging and

dimpled chads.”).

If the Florida Democratic Party’s theory is not valid, then the manual

recounts it requested and any change in votes resulting from those manual recounts

would amount to stuffing the ballot boxes in the selected counties with illegal or

non-existent votes, and counting those bogus votes would be unconstitutional for

that reason. See Baker v. Carr, 369 U.S. 186, 208, 82 S.Ct. 691, 705 (1962)

(recognizing that the right to vote is infringed by false tally or by stuffing the ballot

box); Roe I, 43 F.3d at 581. But, as I have explained, the Democratic Party insists

that a manual recount actually results in the counting of intended votes that would

78

not be detected by machine, and it has put in the record numerous affidavits

supporting that view. The Florida Supreme Court seems to have embraced the

theory as well by interpreting “error in the vote tabulation” in Fla. Stat. §

102.166(5) to include a discrepancy between a machine count and a sample manual

recount in a punch card county. See generally Palm Beach County Canvassing Bd.

v. Harris, ___ So.2d ___, 2000 WL 1725434, at *5-6 (Fla. Nov. 21, 2000),

vacated, Bush v. Palm Beach County Canvassing Bd., 531 U.S. ___, ___ S. Ct.

___, No. 00-836 (Dec. 4, 2000) (per curiam). Because the state high court did so,

and because the theory is a necessary premise of the manual recounts the Party

requested in the selected counties, I accept as a fact for present purposes the

proposition that manual recounts of punch card ballots will result in intended votes

being counted that otherwise would not have been if the process had stopped with

machine tabulation.

If manual recounting had been conducted in all the counties using the punch

card voting system so that all voters who were at risk of having their intended

votes disregarded were protected to generally the same extent by the corrective

process, there would be no federal constitutional violation, at least if we assume (as

I will for purposes of this analysis) that the standards applied in the recount were

accurate, consistent, and fair enough to satisfy due process. But manual recounts

79

did not occur in all of the punch card counties. Not by a long shot. Instead, the

Florida Democratic Party requested and, in conjunction with state officials and

using administrative processes sanctioned by state law, brought about a selective

manual recount. The process which the Party insists corrects machine errors and

ensures that the will of voters is ascertained, that voters are not disenfranchised by

defective technology, was requested in only 3 of Florida’s 24 counties that suffer

from the punch card malady, the 3 being Broward, Palm Beach, and Miami-Dade.

No recount was requested or undertaken in the remaining 21 Florida punch card

counties: Collier, Desoto, Dixie, Duval, Gilchrist, Glades, Hardee, Highlands,

Hillsborough, Indian River, Jefferson, Lee, Madison, Marion, Nassau, Osceola,

Pasco, Pinellas, Sarasota, Sumter, and Wakulla.

The manual recounts have been completed in Broward and Palm Beach

counties, and the resulting additional votes from Broward County have been added

to the statewide totals. Whether part or all of any corrections brought about by the

manual recounts in Palm Beach and Miami-Dade Counties will be added to the

statewide totals as a result of other ongoing litigation in state court remains to be

seen. Given the fluidity of events, I will assume for the remainder of this opinion

that the manual recount results from all 3 of the selected counties will be added to

the statewide totals. However, irrespective of what is decided in the state litigation

80

involving Palm Beach and Miami-Dade Counties, my conclusion remains the same

because any difference in degree of selectivity between one, two, or three counties

being manually recounted and the remainder of the 24 punch card counties not

being recounted is immaterial under the applicable constitutional principles. The

difference between one, two, or three manual recounts being conducted may affect

the result of the election, but the Constitution forbids violations of voters’ equal

protection rights even when those violations do not change the outcome of the

election. See infra at 112-113.

The voters who for whatever reason did not succeed in dislodging the chad

next to their choice for President had their votes counted in Broward County and

may eventually have their votes counted in the 2 other selected counties, but the

voters in all of the other 21 punch card counties who applied the same pressure on

the stylus and brought about the same effect, or lack of intended effect, on the chad

connected with their choice for President did not have their votes counted. Under

the Florida Democratic Party’s theory of punch card undercounting, thousands of

similarly situated Florida citizens who intended to vote for President were thwarted

in their efforts by defective technology, perhaps combined with a bit of personal

carelessness, and whether their intended votes count has been made to depend

solely upon the county in which they live. If they live in Broward County (or

81

maybe in Palm Beach or Miami-Dade Counties, too), their votes count; but if they

live in any of the other punch card counties, they do not. The one and only

difference is in which of the 24 punch card counties they live.

“A citizen’s right to a vote free of arbitrary impairment by state action has

been judicially recognized as a right secured by the Constitution, when such

impairment resulted from dilution from a false tally, or by a refusal to count votes

from arbitrarily selected precincts, or by a stuffing of the ballot box.” Baker v.

Carr, 369 U.S. 186, 208, 82 S.Ct. 691, 705 (1962) (internal citations omitted);

accord Reynolds v. Sims, 377 U.S. 533, 555, 84 S.Ct. 1362, 1378 (1964) (“And

the right of suffrage can be denied by a debasement or dilution of the weight of a

citizen’s vote just as effectively as by wholly prohibiting the free exercise of the

franchise.”) (footnote omitted).

For at least a quarter of a century, it has been established that “[d]iluting the

weight of votes because of place of residence impairs basic constitutional rights

under the Fourteenth Amendment just as much as invidious discriminations based

upon factors such as race, or economic status.” Reynolds, 377 at 566, 84 S.Ct. at

1384 (internal citations omitted). As the Supreme Court explained in Reynolds,

“Overweighting and overvaluation of the votes of those living here has the certain

effect of dilution and undervaluation of the votes of those living there.” Id. at 563,

82

84 S.Ct. at 1382. The Constitution prohibits states from weighting votes

differently based on the voters’ place of residence. The Supreme Court enforced

this prohibition in Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801 (1963), when it

struck down the county unit system the Georgia Democratic Party used in it

primary elections. Under that complicated system every citizen got one vote, but in

the final analysis some votes mattered more than others – they counted more –

and the difference was based upon the counties in which the voter lived. Id. at

370-72, 83 S.Ct. at 803-04. The Court held that the Constitution prohibits such

selectivity. Id. at 380-82, 835 S.Ct. at 808-09.

Another variation on selective weighting of franchise by county of residence

was presented to the Court in Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493

(1969). That case involved an Illinois law that required a candidate seeking a place

on the statewide ballot to present a nominating petition containing the signatures of

at least 25,000 voters. That basic requirement was not a constitutional problem,

but a proviso that also required the nominating petition to include the signatures of

200 or more voters from each of at least 50 counties was a problem. Id. at 815, 84

S.Ct. at 1494. Illinois adopted that proviso in order to ensure that any candidate

who got on its statewide ballot had at least minimal state-wide support, because

“[a]n elected official on the state level represents all the people in the state,” and

83

“[s]uch representatives should be aware of and concerned with the problems of the

whole state and not just certain portions thereof.” Moore v. Shapiro, 293 F. Supp.

411, 414 (N.D. Ill. 1968) (three-judge court), rev’d sub nom. Moore v. Ogilvie,

394 U.S. 814, 893 S.Ct. 1493 (1969). The geographic-spread proviso in Illinois’

nominating petition requirement was unquestionably “an expression of rational

state policy,” Moore v. Shapiro, 293 F. Supp. at 414, but that did not save it from

being struck down.

The problem with the Illinois proviso, the Supreme Court explained in

Moore, was that it discriminated against voters residing in the more populous

counties of the state in favor of those residing in the less populous counties. The

constitutional math went like this:

Under this Illinois law the electorate in 49 of the counties

which contain 93.4 % of the registered voters may not form

a new political party and place its candidates on the ballot.

Yet 25,000 of the remaining 6.6 % of registered voters

properly distributed among the 53 remaining counties may

form a new party to elect candidates to office. ... It,

therefore, lacks the equality to which the exercise of

political rights is entitled under the Fourteenth Amendment.

Id. at 819, 89 S.Ct. at 1496. Although the selective weighting of the franchise

accomplished by the proviso involved in Moore was more sophisticated and less

direct, and as a result less obvious, than the laws struck down in Reynolds v. Sims,

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it still failed to “pass muster against the charges of discrimination or of

abridgement of the right to vote.” Moore, 394 U.S. at 818, 89 S.Ct. at 1496.

Given the fertility of the human mind when focused upon political

objectives, denial or debasement of the franchise can be accomplished in myriad

ways. But whatever the method or means used to count, weigh, or value some

votes differently from others, however sophisticated or indirect the device, the

Constitution is up to the task. See Reynolds, 377 U.S. at 563, 84 S.Ct. at 1382

(“One must be ever aware that the Constitution forbids ‘sophisticated as well as

simpleminded modes of discrimination.’”) (citation omitted). Because of the

central importance of the right to vote in our system of representative democracy,

“any alleged infringement of the right of citizens to vote must be carefully and

meticulously scrutinized,” id. at 562, 84 S.Ct. at 1381, and that is the duty of the

courts.6

6

The Attorney General of Florida argues to us that in judging the selective manual

recounts at issue in this case under the Equal Protection Clause we ought not apply strict scrutiny

but, instead, should apply a lesser standard, and he cites Burdick v. Takushi, 504 U.S. 428, 112

S.Ct. 2059 (1992), and Fulani v. Krivanek, 973 F.2d 1539 (11th Cir. 1992), for that proposition.

See Supplemental Brief of Appellee Attorney General of Florida at 4-7, Siegel, No. 00-15981

(filed in the 11th Cir. Nov. 28, 2000). However, his argument, and those citations, miss the

point. Burdick and Fulani are ballot-access cases, not cases involving different treatment or

weight given to votes cast. In Reynolds, which did involve different treatment of votes cast, the

Supreme Court said that the proper standard was careful and meticulous scrutiny. 377 U.S. at

561-62, 84 S.Ct. at 1381.

The question is actually less one of the degree of scrutiny than it is a straightforward

inquiry into whether the votes of otherwise similarly situated voters are being treated or

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Of course, many cases dealing with sophisticated debasements of the right

to vote have political overtones, and that is no less true here than usual. The

Supreme Court was presented in Reynolds with the argument that it ought to stay

its hand and keep out of the political thickets involved in that case. To that

suggestion the Court responded: “Our answer is this: a denial of constitutionally

protected rights demands judicial protection; our oath and our office require no less

of us.” Id. at 566, 84 S.Ct. at 1384. That is a good answer.

In order to apply the principles of these decisions to the facts of the cases

before us, I turn now to a closer examination of the selection of the 3 counties in

which a manual recount was requested.7 Acting pursuant to Fla. Stat. §

weighted differently because of where they live in the state. If that occurs, then there is a

violation of the equal protection rights of the voter even if there is a rational purpose for the

discrimination, as there was in Moore v. Ogilvie.

7

There has been some discussion by the parties about full or partial manual recounts that

were undertaken in at least 2 (Gadsden and Seminole) and possibly 3 (Polk) counties that use the

marksense or optical scan voting system. The parties agree that those manual recounts were not

requested by any candidate or political party, but were instead initiated by local canvassing

boards during the period for the statewide automatic machine recount undertaken pursuant to

Florida law. The circumstances relating to those recounts and any problem that may have led to

them are unknown in large part because neither of these two cases contains a claim or

counterclaim concerning those recounts, and the canvassing boards involved are not parties to

either lawsuit.

Those recounts do not affect my analysis because they occurred in optical scan counties,

were not conducted at the request of a political party or candidate, and may have been

undertaken as a result of local problems, as was the case with Volusia County, which also uses

the optical scan system. See supra n.2. In any event, even if there were unconstitutional

selectivity in the choice of those 3 optical scan counties, that would not lessen the violation of

the Equal Protection Clause that occurred when the Florida Democratic Party selected 3 of the

24 punch card counties for manual recounts.

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102.166(4), the Democratic Party filed written requests for manual recounts in

Broward, Palm Beach, and Miami-Dade Counties, and no other punch card

counties. Siegel, Fla. Dem. App. at tabs 1, 3 & 5. There were two common

grounds stated in each of those 3 written requests. One ground given in all 3

requests was that the punch card system with its chads created a risk that intended

votes had not been counted (“undervotes”) or actually did result in undervotes, a

problem the requests said could be corrected by a manual recount with its attendant

visual inspection of the cards. The other stated ground in all 3 requests was that

the election results in Florida showed that the race for President was very close. No

other grounds were given in the manual recount requests.8 See id.

8

There is one exception to that statement. The request for a manual recount in Palm

Beach County contained another ground. It was stated in the Palm Beach recount request that

the particular configuration of the ballot in that county (the so-called “butterfly ballot”) had

confused Palm Beach’s voters, producing two bad results: a substantial number of votes were

disregarded because more than one choice was punched in the presidential race; and some

voters may have inadvertently voted for someone other than their true choice. See Siegel, Fla.

Dem. App. at tab 1.

That problem cannot explain or justify why the Democratic Party selected the 3 punch

card counties that it did. First, neither Broward or Miami-Dade Counties used a butterfly ballot,

and there was no voter confusion reported in the request for manual recounts filed in either of

those counties. Second, the purpose of a manual recount in a punch card county is to find

intended votes that the tabulating machine did not pick up because a chad was not sufficiently

punched out. Any ballot in which the tabulating machine picked up two votes cast for the same

office would be one in which the voter had cleanly punched out not one but two chads, or the

machine would not have read it as two votes. Instead of helping cure that “overvote” problem, a

manual recount searching for additional votes in the form of dimpled, pregnant, or swinging

chads not picked up by the tabulating machine could only aggravate the problem. That is

precisely the concern that the Horowitz intervenors, a group of Palm Beach voters who

supported the Democratic Party’s nominee in the election, expressed in the district court. See

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The problem with machine tabulating of punch card ballots is common to

counties that use the punch card system. The Democratic Party has never

contended to the contrary, but instead has insisted that the problem is inherent in

punch card technology. For that reason, the existence of a punch card voting

system cannot be a basis for differentiating the 3 counties that were selected from

the 21 that were not. And, of course, the fact that the statewide totals in the race

for President were extremely close was a common fact, and therefore could have

served as grounds for a recount in any of the other 21 punch card counties. There is

nothing in the reasons that the Party gave for requesting a manual recount in the 3

selected counties that explains, let alone justifies, the discrimination in favor of

those 3 punch card counties and against the other 21. In order to give the Party the

benefit of the doubt and to consider all the possibilities, I will now look elsewhere

for an explanation.

Charts A - F, which are attached as appendices to this opinion, contain

population and other demographic data, as well as relevant vote data on a county-

Siegel, Hearing Trans. at 108.

As to the Palm Beach voters who allegedly inadvertently voted for the wrong candidate

because they were confused, a visual inspection of a punch card ballot showing a hole clear

enough for the tabulating machine to have picked it up could not reveal whether at the time the

hole was punched the person doing the punching thought it would count as a vote for another

candidate.

88

by-county basis.9 That vote data represents things as they stood on November 9,

2000, after the automatic machine recount required under Fla. Stat. § 102.141(4)

had been conducted. That is the relevant vote data for our purposes, because it

reflects the facts as of the time the Florida Democratic Party filed its manual

recount requests in Broward, Miami-Dade, and Palm Beach Counties on November

9, 2000.

Chart A shows that the 3 counties selected by the Democratic Party for a

manual recount share these characteristics: 1) they are the 3 most populous

counties in the State of Florida; 2) they are the 3 counties in which the Party’s

nominee, Vice-President Al Gore, received the largest number of votes; and 3) in

each of them he received substantially more votes than his opponent, Governor

Bush.

The theory underlying the manual recount, as I have already explained, has

always been that the punch card system of voting necessarily and inevitably results

in some intended votes not being picked up by the tabulating machine. The Florida

Democratic Party has never suggested that its selection of counties for manual

recounts was based upon any county-by-county variation in either the way the

punch card system operates or in its rate of accuracy. Instead, the consistent

9

We can take judicial notice of that vote data, which is from the records the Florida

Secretary of State keeps as required by law and pursuant to her official duties. See supra n.5.

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position of the Party, which is generally supported by the affidavits it submitted in

the district court, is that every time the punch card system is used there will be

intended votes that are not counted by the tabulating machine. See supra at 72-77.

Given the stated justification that the manual recounts were necessary in Broward,

Miami-Dade, and Palm Beach Counties because those counties used the punch

card system, the more relevant focus is on the population and voting data from all

of Florida’s 24 punch card counties. Chart B shows that data. Of course, because

the 24 punch card counties are a subset of all of Florida’s 67 counties, the

characteristics that distinguish the 3 counties chosen by the Party on a statewide

basis also distinguish them in relation to the other 21 punch card counties: those 3

are the most populous and vote-rich of all the punch-card counties, and in each of

them the Party’s nominee received substantially more votes than his principal

opponent.

Not only that, but we also see from the data contained in Chart B another

conspicuous fact. The 3 counties the Florida Democratic Party selected for manual

recounts are 3 of the 4 punch-card counties that gave its nominee the highest

percentage of the vote cast among the two opposing Presidential candidates. Those

percentages are as follows: Broward (68.55%); Palm Beach (63.81%); and Miami-

Dade (53.18%). No other punch card county gave the Party’s nominee a greater

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percentage of its vote than Broward and Palm Beach Counties, and only one punch

card county gave the Party’s nominee a greater percentage of its vote than Miami-

Dade County did. That lone exception is sparsely populated Jefferson County

which, although favoring the Party’s nominee with 55.10 % of its vote, cast a total

of only 5,519 votes for the nominees of both major parties (compared, for example,

to the 618,335 votes cast for them in Miami-Dade County). Because so few votes

were cast in Jefferson County, that county offered little prospect for finding

enough uncounted votes to make a difference. In effect, the voters of Jefferson

County were too few in number to matter in view of the Party’s objective, which

was to change the election result that had been reported to that date.

Given the theory of the recount – finding intended votes that were not

counted by the punch card system – the most relevant data of all would be the

percentage of votes that were intended but not counted. We do not have that, but

neither did the Florida Democratic Party when it selected the punch card counties

in which to request recounts. We do have the “no vote” data, which shows the

difference between the total number of voters who cast a ballot and the total votes

cast for any Presidential candidate. In other words, the no vote data shows the

number of ballots in which no vote for President was counted either because the

tabulating machine did not pick up from the punch card any vote for President, or

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because it picked up two or more votes for President on the same card resulting in

no vote for President being counted.

Chart C ranks the punch card counties by percentage of no votes in the

Presidential race. If Palm Beach, Miami-Dade, and Broward Counties had been

selected for manual recounts because of problems resulting in no vote for

President being picked up by the tabulating machines, those 3 counties would have

the highest no vote rates. They do not. Chart C shows that there are 7 punch card

counties with a higher percentage of no votes in the Presidential race than Palm

Beach County, yet none of them was selected for manual recounts. The chart also

shows that 10 punch card counties have a higher percentage of no votes than

Miami-Dade County, but none of them was selected for a manual recount. And as

for Broward County, there were 17 punch card counties with a higher no vote rate

that were not selected for manual recounts. In fact, Broward is tied for the fourth

smallest percentage of no votes for President among all of the 24 punch card

counties, yet the Florida Democratic Party still selected it for a manual recount.

One of the many affidavits the Florida Democratic Party submitted in the

district court stated that “two groups of citizens, the elderly and minorities, are

more prone to have problems on this system than the rest of the population.”

Siegel, Aff. of Ion V. Sancho, Fla. Dem. App. at tab 9. Perhaps that opinion rests

92

upon derogatory stereotypes that federal courts should not countenance. Even

assuming, however, that there is some factual basis for that opinion and that we

should consider the possibility, the problems that any group, including the elderly

and minorities, have with punch card voting should be captured to some extent in

the no vote data contained in Chart C. But as we have seen, the Party’s selection of

the 3 counties cannot be justified on the basis of that data.

Moreover, Chart D, which ranks the punch card counties by percentage of

population over the age of 65, shows that 7 of those counties that were not selected

for manual recounts have a greater percentage of their population in that age

category than Palm Beach County does; 11 not selected for manual recounts have a

greater percentage in that age category than Broward County does; and 13 of them

have a greater percentage in that age category than Miami-Dade County does. The

Florida Democratic Party’s selection of punch card counties for manual recounts

could not have been based upon the percentage of elderly in each county’s

population.

As for “minorities” having more problems with punch card voting, it is

unclear exactly what the Florida Democratic Party’s affiant meant by “minorities.”

Chart E shows that if he meant to include both blacks and Hispanics in that

grouping, Miami-Dade County’s population does have a higher percentage of

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minorities than any other punch card county. But the chart also shows that 6 punch

card counties that were not selected for manual recounts have a higher percentage

of minorities in their populations than Broward County, which was selected. And it

shows that 8 punch card counties that were not selected for manual recounts have a

higher percentage of minorities in their population than Palm Beach County which

was also selected.

So, the facts we have about the Florida Democratic Party’s selection of the

counties in which a manual recount would be undertaken in order to ensure that

voters were not disenfranchised by systemic problems with punch card technology

or by carelessness, are these. The selection was not based upon the rate of punch

card error – the no vote rate – nor was it based upon the relative percentage of

senior citizens or minorities in each county’s population. Instead, the defining

characteristic of the 3 punch card counties chosen to undertake a manual recount is

that they are the 3 most populous counties in the state, all of which gave the Party’s

Presidential nominee a higher percentage of the vote than his opponent.

Of course, none of this is surprising. We expect political parties to act in

their own best political interest, and the 3 most populous counties that had voted

for its nominee presented the Florida Democratic Party with its best prospects for

turning the election around. It would not have served the Party’s goal of electing

94

its nominee for President for it to have sought the intended but unsuccessful votes

in those punch card counties that went for the other party’s nominee, Governor

George W. Bush. The voters in 17 of the 24 punch card

This text is long and has been trimmed here. Open the source document for the complete record.