Petition for Writ of Certiorari — Bush v. Gore
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Chetes Rott Cal nd, Piney s 00-449 ss
No. A- G6 A SO4 (")
Supreme Court of the United States Cue
GEORGE W. BUSH AND RICHARD CHENEY,
Vv.
ALBERT GORE, JR.., er al., $527.22 Coca, v.
Applicants, |.
<= rw oF
Respondents.
EMERGENCY APPLICATION FOR A STAY OF ENFORCEMENT
OF THE JUDGMENT BELOW PENDING THE FILING AND
DISPOSITION OF A PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF FLORIDA
MICHAEL A. CARVIN
Cooper, CARVIN . Moemertial, P.L.L.C.
1500 K Street, N.W
a 200
(203) 2 0-960
BARRY RICHARD
GREENBERG TRAURIG, P.A.
101 East College Avenue
Post Office Drawer 1838
Tallahassee, FL 32302
(850) 222-6891
GEORGE J. TERWILLIGER III
TimoTHy E. FLANIGAN
WHITE & Case LLP
S 13th ye s W.
202) 656-3600.
C. 20005
THEODORE B. OLSON
Counsel of Record
DOUGLAS R. Cox
THOMAS G. HUNGAR
GIBSON, DUNN & CRUTCHER LLP
_— Connecticut Avenue, N.W.
D.C. 20036
(2039 5-8500
BENJAMIN L. GINSBERG
PATTON Boaccs LLP
2550 M Street, N.W.
W D.C. 20037
(202) 457-6000
Counsel for Applicants
QUESTIONS PRESENTED
|. Whether the Florida Supreme Court erred in establishing new standards for
resolving presidential election contests that conflict with legislative enactments and
thereby violate Article II, Section 1, Clause 2 of the United States Constitution. which
provides that electors shall be appointed by each State “in such Manner as the Legislature
thereof may direct.”
2. Whether the Florida Supreme Court erred in establishing post-election
judicially created standards that threaten to overturn the certified results of the election
for President in the State of Florida and that fail to comply with the requirements of 3
U.S.C. § 5, which gives conclusive effect to state court determinations only if those
determinations are made “pursuant to” “laws enacted prior to” election day.
3. Whether the use of arbitrary, standardless and selective manual recounts to
determine the results of a presidential election, including post-election judicially created
selective and capricious recount procedures, that vary both across counties and Within
counties in the State of Florida violates the Equal! Protection or Due Process Clauses of
the Fourteenth Amendment.
PARTIES TO THE PROCEEDING
The following individuals and entities are parties to the proceeding in the court
below:
Governor George W. Bush, as Nominee of the Republican Party of the United
States for President of the United States; as Richard Cheney, Nominee of the Republican
Party of the United States for Vice President of the United States; Albert Gore. Jr.. as
Nominee of the Democratic Party of the United States for President of the United States:
Joseph I. Lieberman, as Nominee of the Democratic Party of the United States for Vice
President of the United States; Katherine Harris, as Secretary of State, State of Florida:
Katherine Harris, Bob Crawford, and Laurence C. Roberts, individually and as members
of a Florida Elections Canvassing Commission; the Miami-Dade County Canvassing,
Board; Lawrence D. King, Myriam Lehr and David C. Leahy as members of the Miami-
Dade Canvassing Board; David Leahy individually and as Supervisor of Elections: the
Nassau County Canvassing Board; Robert E. Williams, Shirley N. King and David
Howard (or, in the alternative Marianne P. Marshall), as members of the Nassau County
Canvassing Board; Shirley N. King individually and as Supervisor of Elections; the Palm
Beach County Canvassing Board; Theresa LePore, Charles E. Burton and Carol Roberts,
as members of the Palm Beach Canvassing Board; Theresa LePore individually and as
Supervisor of Elections; and Stephen Cruce, Teresa Cruce, Terry Kelly, Jeanette K.
Seymour, Matt Butler, John E. Thrasher, Glenda Carr, Lonnette Harrell, Terry
Richardson, Gary H. Shuler, Keith Temple, and Mark A. Thomas, as Intervenors.
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VI. REASONS FOR GRANTING THE STAY ..0......ccccccccssessescseseeseeeeseseeeteneneeeeaees 19
A. — There Is A Reasonable Probability That At Least Four Members
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1. The Florida Supreme Court's Decision Violates Article II
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2. The Florida Supreme Court's Decision Fails To Comply
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TABLE OF CONTENTS
3. The Florida Supreme Court's Decision Violates The
Equal Protection And Due Process Clauses Of The
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C. Applicants Will Suffer Irreparable Harm In The Absence Of A
Stay, And The Balance Of The Equities Clearly Favors Issuance
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IN THE
Supreme Court of the United States
GEORGE W. BUSH AND RICHARD CHENEY,
Applicants,
Vv.
ALBERT GORE, JR., Er Ac.
Respondents
EMERGENCY APPLICATION FOR A STAY OF ENFORCEMENT OF THE
JUDGMENT BELOW PENDING THE FILING AND DISPOSITION OF A
PETITION FOR A WRIT OF CERTIORARI TO THE
SUPREME COURT OF FLORIDA
TO THE HONORABLE ANTHONY M. KENNEDY, ASSOCIATE JUSTICE OF THE
SUPREME COURT AND CIRCUIT JUSTICE FOR THE ELEVENTH CIRCUIT: ?
Pursuant to Rules 22 and 23 of the Rules of this Court and 28 U.S.C. §§ 1651(a)
and 2101(f), Applicants George W. Bush and Richard Cheney respectfully request a stay
of enforcement of the judgment below pending the filing and disposition of a petition for
a writ of certiorari to the Supreme Court of Florida in this case. The decision below
attempts to apply to the November 7, 2000 presidential election retroactive judicial
changes in Florida law governing the appointment of presidential electors. The decision
below violates Article [I of the United States Constitution, conflicts with 3 U.S.C. § 5,
and violates the Equal Protection and Due Process Clauses of the Fourteenth
Amendment. A stay pending this Court's review of these substantial federal questions is
essential to prevent Applicants from suffering irreparable injury as a direct result of the
erroneous decision below. A stay is also consistent with this Court's unanimous decision
on December 4, 2000, vacating the judgment of the Florida Supreme Court and
remanding the case for further proceedings consistent with this Court's opinion. See
Bush v. Palm Beach County Canvassing Board, No. 00-836, Slip op. (U.S. Dec. 4. 2000)
(attached hereto as Exh. D). The Florida Supreme Court has not yet acted on that
decision, nor has it shown that its actions are consistent with that decision. Applicants
intend to file a petition for a writ of certiorari within twenty-four hours. !
L. INTRODUCTION
More than one month after Election Day, events in the State of Florida have
thrown the results of the November 7 presidential election into intense turmoil and
controversy. The period between November 7 and today has, unfortunately, been
characterized by chaotic and standardless manual recounts requested by Democratic
presidential candidate Vice President Gore in four heavily Democratic counties and by an
outburst of litigation flowing from that process. This Court has already granted certiorari
and decided one case involving the Florida election dispute. See Bush, Exh. D.
This Court’s review is also essential in this case in order to protect the integrity of
the electoral process for President and Vice President of the United States and in order to
correct the serious constitutional errors made by the Florida Supreme Court. A stay is
| In the alternative, the Court may wish to treat this application as a petition for a wnt of
certiorari. See, e.g., Barefoot v. Estelle, 463 U.S. 880, 887 (1983); Nebraska Press Ass 'nv
Stuart, 423 U.S. 1011, 423 U.S. 1027 (1975); Citizens to Preserve Overton Park, Inc. v
Volpe, 400 U.S. 939 (1970), 401 U.S. 402, 406 (1971).
necessary in order to prevent irreparable harm to Applicants. to the electoral process. and
to the Nation as a consequence of the flawed decision below.
Il. OPINIONS BELOW
The opinion of the Supreme Court of Florida in the contest proceeding (Exh. A) is
not yet reported. The order of the Circuit Court for the County of Leon, Florida in that
proceeding (Exh. B (Final Judgment) and Exh. C (transcript of ruling from bench)) is not
reported. The November 21, 2000, opinion of the Supreme Court of Florida is reported at
__ $0.24 __, 2000 WL 1725434 (Fla. Nov. 21, 2000) (“Harris”). The December 4. 2000.
per curiam decision of this Court in 00-836 (Exh. D), vacating the decision of the
Supreme Court of Florida in Harris and remanding for further proceedings not
inconsistent with this Court's decision, is reported at__ S.Ct. _, 2000 WL 1769093. -
Il. CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED
Article II, Section 1, Clause 2 of the Constitution of the United States provides:
“Each State shall appoint, in such Manner as the Legislature thereof may direct, a
Number of Electors, equal to the whole Number of 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.”
Title 3, Section 5 of the United States Code 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.” 3 U.S.C. § 5.
The Fourteenth Amendment to the Constitution of the United States provides. in
pertinent part, that “No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any State deprive any
person of life, liberty, or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.” U.S. CONST. amend. XIV, § 1.
Pursuant to this Court’s Rule 14.1(f), the provisions of Florida law involved in this
case, including Fla. Stat. §§ 102.111, 102.112, 102.141(4), 102.166, 102.168, and 106.23,
and Article V of the Florida Constitution, as well as all other pertinent provisions of the
Constitution of the United States, the United States Code, and the Florida Statutes are
reproduced at Exh. E hereto.
IV. STATEMENT
A. Facts
The voters of Florida cast their ballots for President on November 7. 2000. Those
ballots were counted on November 7. and—pursuant to an existing statutory provision—
recounted on November 8. In each case, Governor Bush received the most votes for
President. Following those two counts, Vice President Gore filed election protests (see
Fla. Stat. § 102.166) and requested that four heavily Democratic counties—Broward.
Miami-Dade, Palm Beach, and Volusia—out of Florida's sixty-seven counties, manually
recount the ballots cast. As this Court is aware, those manual recounts were conducted in
different manners from county to county according to amorphous and newly developed
“standards” that changed during the recounts. See Siege/ v. LePore, No. 00-15981. 2008 ‘
WL 1781946, at *22 (11th Cir. Dec. 6, 2000) (Birch, J., dissenting).
The laws enacted by the Florida Legislature before the November 7 election set
procedures governing the manner in which presidential electors would be appointed.
Among these laws were two sections that require local county canvassing boards to
certify their election returns to the Department of State no later than 5:00 p.m. on the
seventh day following the election. See Fla. Stat. §§ 102.111 and 102.112.2 Section
102.112 indicates that retums filed after that deadline may be ignored by the Secretary of
State. That seven-day deadline expired on November 14, 2000, and the Secretary of
2 The Flonda election code and all other relevant statutes and constitutional provisions are
reproduced at Exh. E hereto.
State, after considering proffered justifications for failing to comply with the deadline.
announced that she would exercise her discretion and refuse to tabulate late-submitted
returns.
Florida law provides that, prior to the seven-day certification deadline, disputes
over election results may be raised by submitting a “protest” to the county canvassing
boards, see Fla. Stat. § 102.166(1)-(2), and/or a request for a manual recount, see Fla.
Stat. § 102.166(4)-(10). The county canvassing boards have the discretion to reject or
accept the request for a recount. Fla. Stat. § 102.166(4)(c) (“The county canvassing
board may authorize a manual recount.”) (emphasis added). If the canvassing board
decides to perform a manual recount, it must first conduct a sample manual recount. Fla.
Stat. § 102.166(4)(d). If the sample manual recount indicates “an error in the vote
tabulation which could affect the outcome,” the county canvassing board may conduct a
full manual recount, correct the error and recount remaining precincts with the vote
tabulation system or request verification of the tabulation software. Fla. Stat.
§ 102.166(5).
Florida statutes, as of November 7, provided no specific guidance about how to
determine whether a particular ballot reflected a vote or not. See Fla. Stat.
§ 101.5614(5).2 As of November 7. 2000. no provision in Florida law exempted the
manual recount process from the seven-day certification deadline.
After certification, candidates and voters may “contest” the certification of an
election by filing a complaint in Leon County Circuit Court. See Fla. Stat. §§ 102.168.
102.1685. Such contests must be initiated within 10 days of the certification, see Fla.
Stat. § 102.168(2), and involve extensive judicial proceedings, including formal
pleadings, discovery, and trial. See Fla. Stat. § 102.168(3)-(8).
> As a result, there were wide discrepancies across and within the counties both with regard to
determinations about undertaking, or completing, manual recounts and as to how to assess”
ballots. For example, the standards for evaluating ballots were changed repeatedly during
the recounts. Indeed, after tabulating as proper votes only punch card ballots that had been
perforated by voters, certain county officials yielded—two weeks after the election—to
demands by Democratic Party officials for the adoption of yet another new standard which
would permit local officials to validate ballots with mere “discernible indentations”
(“dimpled chads”). In Palm Beach County, a court ordered the canvassing board to consider
“dimpled” chads even though the board's pre-existing 1990 policy precluded treating mere
indentations as valid votes. See Florida Democratic Party v. Palm Beach County
Canvassing Bd. , No. CL 00-11078 AB, 2000 WL 1728721 (Fla. Cir. Ct. Nov. 22, 2000). On
November 20, the Florida Democratic Party asked the Florida Supreme Court to fashion even
more expansive new standards de novo for the recounting of the ballots in the counties it had
singled out for special treatment. Vice President Gore repeated that request to the Florida
Supreme Court on November 30, when he urged that court to exercise mandamus jurisdiction
to begin counting ballots. Petition for Writ of Mandamus or Other Writ or, In the Alternative
Review of Trial Court Ruling and for Enforcement of Injunction, Gore v. Harris, at 21-30
(filed Nov. 30, 2000). In that brief, Vice President Gore argued that “as a matter of law, a
discernible indentation on the ballot constitutes objective evidence of the voter's intent.” /d.
at 35. The Florida Supreme Court rejected that request, and in this case refused once again to
attempt to clarify the standard(s) for determining whether to count “dimpled” ballots,
“hanging chad,” etc., instead simply leaving these issues to the unfettered discretion of
unidentified individuals who will apparently be charged with making those determinations on
an ad hoc and completely standardless basis.
B. Prior Proceedings
On November 13, 2000, Vice President Gore and others brought suit in the Circuit
Court for Leon County seeking an order directing the Secretary to waive the November
14 deadline established by the Florida legislature for certifying the results of the election.
Instead, the Gore campaign sought a judicial amendment to the statute that would allow
late results from three counties—Broward, Miami-Dade, and Palm Beach—to be
included in the final vote tally. The circuit court denied that relief on November 17.
holding that the Secretary of State had “exercised her reasoned judgment to determine
what relevant factors and criteria should be considered, applied them to the facts and
circumstances pertinent to the individual counties involved, and made her decision.”
McDermott v. Harris, Case No. 00-2700 (Fla. Cir. Ct. Nov. 17, 2000) (order denying
emergency motion to compel compliance with and for enforcement of injunction).
That same day, the Florida Supreme Court, exercising its “equitable powers”
under the Florida Constitution, sua sponte enjoined the Secretary of State from certifying
the November 7 presidential election results for the State of Florida until further order
from the Court. Four days later, on November 21, the Florida Supreme Court issued an
opinion reversing the state trial court, holding that the trial court “erred in holding that the
Secretary [of State] acted within her discretion in prematurely rejecting any amended
returns that would be the result of ongoing manual recounts.” Harris, 2000 WL 172543
at *14. The Florida Supreme Court reached this conclusion by announcing a new rule of
law to constrain the Secretary’s discreticn under Fla. Stat. §§ 102.111 and 102.112,
declaring for the first time that “the Secretary may reject a Board’s amended returns only
—————EEee
if the returns are submitted so late that their inclusion will preclude a candidate from
contesting the certification or preclude Florida's voters from participating fully in the
federal electoral process.” Harris, 2000 WL 1725434 at *14.
Based on this newly fashioned judicial amendment, the Florida Supreme Court
directed the Secretary of State to accept untimely manual recount retums through 5:00
p.m. on November 26, 2000. /d. at *15. The court also maintained its injunction
preventing the Secretary from certifying any election results before that date, and directed
the Secretary to include in her certified election results all manual recount returns
received by that date. /d.
Manual recounts thus continued in Broward, Palm Beach, and Miami-Dade
counties. Results from the manual recounts were submitted to the Secretary of State by -
Broward County on November 25. On November 22, the Miami-Dade County
Canvassing Board unanimously decided to halt its manual recount, after counting 136 of
the 635 precincts in the county. The Palm Beach Canvassing Board began a manual
recount, but it did not provide the complete results of its manual recount to the Secretary
of State by the 5:00 p.m. November 26 deadiine set out by the Florida Supreme Court.
| As of 5:00 p.m. on November 26, the tabulated results showed once again that
Governor Bush had susbent more votes for President than any other candidate.
Accordingly, the Secretary of State certified Governor Bush as having received the most
votes for President in Florida, and the Florida Elections Canvassing Commission
announced that Governor Bush was the winner of Florida's twenty-five electoral votes
for President. In certifying the election returns on November 26, the Secretary of State
made clear her opinion that the final vote totals were due by November |4 (with the
exception of overseas military absentee ballots), the deadline specified by Florida statute.
Nonetheless, because the Florida Supreme Court had extended that deadline until 5:00
p.m. on November 26, the certified total announced by the Secretary of State included the
results of the manual recount in Broward County completed after November 14, but
before 5:00 p.m. on November 26.
C. This Court’s Earlier Decision
On November 24, 2000, this Court granted a writ of certiorari to review the
November 21 decision of the Floridc Supreme Court extending the deadline for
submitting vote tota's This Court issued a .nanimous per curiam opinion on Monday.
December 4, 2000, vacating the Florida Supreme Court's decision and remanding the —
case to the Florida court “for further proceedings not inconsistent with this [Court's]
opinion.” Bush, Exh. D at 6. This Court determined that there was “considerable
uncertainty as to the precise grounds for the [Florida Supreme Court's] decision” and
thus found reason “to decline at this time to review the federal questions” raised by
petitioner. /d. This Court, however, cautioned the Florida Supreme Court against
overriding the Florida Legislature’s “wish” to secure for Floridians the benefits of the
“safe harbor” in 3 U.S.C. § 5. See id. In vacating the decision and remanding the case to
the Florida Supreme Court, this Court specifically sought clarification “as to the extent to
which the Florida Supreme Court saw the Florida Constitution as circumscribing the
legislature’s authority under Art. II, § 1, cl. 2” and “as to the consideration the Florida
Supreme Court accorded to 3 U.S.C. § 5.” Id. at 7.
10
D. Proceedings Below
On November 27, 2000, the day after the Secretary of State certified the results of
the November 7 election and the Florida Elections Canvassing Board declared Governor
Bush the winner of Florida's twenty-five electoral votes, Vice President Gore and
Senator Lieberman (the “Gore Respondents”) filed a complaint in the Circuit Court for
Leon County pursuant to Fla. Stat. § 102.168 to contest the certification of Governor
Bush as the winner. Although the complaint contended that Governor Bush did not
receive “more votes in the Presidential election in the State of Florida than Al Gore,” it—
like the earlier protest actions—sought relief only with respect to heavily Democratic
counties. The complaint alleged that the results certified by the Secretary of State:
(1) improperly failed to include a manual recount of ballots in Miami-Dade County that
the Miami-Dade Canvassing Board unanimously decided not to complete; (2) improperly
failed to include results of a manual recount in Palm Beach County that were not
submitted by the November 26, 5:00 p.m. deadline set out by the Florida Supreme Court;
and (3) improperly included the results from Nassau County’s November 7 machine
count of ballots, rather than Nassau County’s incomplete November 8 machine recount of
ballots. The complaint also asked the court to evaluate 3,300 ballots from Paim Beach
County and some 9,000 ballots from Miami-Dade County that the Gore Respondents
contend were not properly counted.
Governor Bush and Secretary Cheney filed an answer and raised several
affirmative defenses to the contest, including constitutional challenges. See Exh. F
(Answer And Affirmative Defense Of Defendants George W. Bush And Richard Cheney
ll
To Complaint To Contest Election): see also Exh. N (Motion And Memorandum In
Support Of Defendants George W. Bush And Dick Cheney’s Motion To Dismiss F or
Lack Of Subject-Matter Jurisdiction, Failure To Name Indispensable Parties, And Failure
To State A Claim). The affirmative defenses included, among others. that: the relief
requested by the Gore Respondents is barred because it would violate Article II. § 1 of
the U.S. Constitution; the Gore Respondents’ request to recount votes in only two
selected counties differently than in Florida's remaining sixty-five counties would violate
the Equal Protection and Due Process Clauses of the U.S. Constitution; the post-election
judicial limitations imposed by the Florida courts on the discretion of state executive
officials to certify election results and the standards applied to resolve any controversies
violate the Due Process Clause of the Fourteenth Amendment and fail to comply with the -
requirements of 3 U.S.C. § 5; the Broward, Miami-Dade and Palm Beach County
Canvassing Boards altered standards for evaluating votes after the November 7 election.
in violation of the Due Process Clause and 3 U.S.C. § 5; and including the results of the
partial manual recount in Miami-Dade County would violate the Voting Rights Act of
1965, 42 U.S.C. § 1973.4
4 As part of that contest action, Governor Bush and Secretary Cheney also filed a third-party
complaint against Broward and Volusia counties contending that in the event the court
granted the Gore Respondents’ request for a recount in Miami-Dade and Palm Beach
counties, then it must also conduct a recount in Broward and Volusia counties under the same
standards. Exh. G (3P 7) at 3. That third-party complaint also alleged that the shifting
standards for considering ballots by the Broward County Board violated the Due Process
Clause and 3 U.S.C. § 5. Exh. G (3P 4 15-40) at 4-11. The court below rejected
Applicants’ arguments in this regard without comment.
2
On December 4, 2000. after hearing two full days of evidence. the Leon C ounty
Circuit Court rejected the contest and denied relief to the Gore Respondents. The Circuit
Court made several factual findings in support of its holding, including findings that there
was no credible evidence establishing a reasonable probability that the Florida election
results would be different if the requested relief were granted to the Gore Respondents:
that the Miami-Dade County Canvassing Board did not abuse its broad discretion in its
decision not to perform a complete manual! recount; and that the Palm Beach County
Canvassing Board did not abuse its discretion in considering the 3,300 ballots the ore
Respondents sought to have reviewed by the Circuit Court.
The Circuit Court also made a factual finding that the Palm Beach County
“process and standards [for evaluating ballots] were changed from the prior 1990
standards.” Exh. C at lines 0011-7 to 0011-8. The Circuit Court went on to state that
these changes were “perhaps contrary to Title III, Section (5) of the United States Code.”
Id. at lines 0011-8 to 0011-9. The Circuit Court also expressed its concern that
implementing a different standard for evaluating the 3,300 disputed Palm Beach County
ballots would create a two-tier system not only within that county, but also with respect
to other counties. That two-tier system, explained the Circuit Court, citing and relying on
an opinion letter from Florida’s Attorney General, “would have the effect of treating
voters differently depending upon what county they voted in. ... [thereby raising] legal
jeopardy under both the United States and state constitutions.” /d. at lines 0011-21 to
0011-22 (quoting November 14, 2000 letter of Florida Attorney General).
13
On December 8, 2000, the Florida Supreme Court. by a margin of 4-3. reversed
the circuit court, ordering the following: (1) the inclusion of 176 or 215 net votes for the
Gore Respondents as “identified” by the Palm Beach Canvassing Board, but submitted to
the Secretary of State after the Florida Supreme Court's November 26 deadline. Exh. A at
4; (2) the inclusion of 168 net votes for the Gore Respondents “identified in a partial
recount” by the Miami-Dade Canvassing Board, but never submitted to the Secretary of
State, id.; (3) the trial court to “examine the approximately 9000 additional Miami-Dade
ballots placed in evidence, which have never been examined manually.” /d. at 5. The
majority also ordered the Supervisor of Elections and Canvassing Boards “in all counties
that have not conducted a manual recount or tabulation of the undervotes in this election
to do so forthwith.” /d. at 38-39 (emphasis added).
Remarkably, the majority opinion did not respond to the questions posed by this
Court’s December 4 opinion vacating the Florida Supreme Court’s decision in Harris.
Indeed, although the majority recognized that the “need for prompt resolution and finality
is especially critical in presidential elections where there is an outside deadline
established by federal law,” id. at 36, it nonetheless embarked upon a recount plan that it
knew could not be fulfilled and that would, by definition, conflict with 3 U.S.C. § 5. See
Exh. A at 38 n.21 we agree that practical difficulties may well end up controlling the
outceme of the election”); id. at 67 (Harding, J., dissenting) (majority “provid[ed) a
remedy which is impossible to achieve and which will ultimately lead to chaos”).
14
Chief Justice Wells wrote a strong dissent in which he concluded tnat the
majority 's order to conduct a partial recount “appears to me to be in conflict with the
United States Supreme Court decision [in Harris) * Exh. A at 55. He also warmed that
Florida's “[c}ontinuation of [a] system of county-by-county decisions regarding how a
dimpled chad is counted is fraught with equal protection concerns which will eventually
cause the election results in Florida to be stricken by the federal courts or Congress.” /d
at $1. Chief Justice Wells also concluded that the order directing the trial court to
conduct a manual recount of ballots violates Article II of the United States Constitution,
because “neither th{e Florida Supreme Court] nor the circuit court has the authority to
create the standards by which it will count the under-voted ballots.” /d a 53.
Finally, the majority held that in tabulating the ballots, the standard to be applied
in determining whether a vote is “legal” is whether there is a “clear indication of the
intent of the voter.” Exh. A at 39 (citing Fla. Stat. § 101.5614(5)). However, as the
dissents point out, that standard is a departure from the standard in effect on November 7.
Justice Harding, joined by Justice Shaw, concluded that “the majority has established
standards for manual recounts—a step that this Court refused to take in an earlier case.”
Id. at 67 (Harding, J., dissenting). Similarly, Chief Justice Wells concluded that the
majority's decision “not only changes a ru.. after November 7, 2000, but it also changes
a rule this Court made on November 26, 2000.” /d. at $3 (Wells, CJ., dissenting).
On December 8, 2000, Applicants filed with the Florida Supreme Court a petition
to stay its ruling pending the filing of a petition for a writ of certiorari. Although the
1S
Florida Supreme Court has yet to rule on that petition, this case certainly presents
“extraordinary circumstances” that warrant relief from this Court. See Sup. Ct. R. 23.3
V. JURISDICTION
This Court has jurisdiction to review by writ of certiorari any “[flinal judgments or
decrees rendered by the highest court of a State in which a decision could be had...
where the validity of a statute of any State is drawn in question on the ground of \\s > cing
repugnant to the Constitution . . . or laws of the United States, or where any title, right.
privilege, or immunity is specially set up or claimed under the Constitution . . . or statutes
of . . . the United States.” 28 U.S.C. § 1257(a).
Applicants seek review of the Supreme Court of Florida's decision, which, as
demonstrated below, violates Article II of the United States Constitution, 3 U.S.C.§5.- -
and the Fourteenth Amendment to the Constitution. Applicants properly raised these
federal claims in the court below. See Exh. H (Amended Brief Of Appellees George W.
Bush And Dick Cheney) at 45-46; see also Exh. M (Clarification Of Argument For
Appellees George W. Bush And Dick Cheney) at 2-8. Accordingly, the questions to be
presented in the petition plainly fall within the jurisdiction of this Court under 28 U.S.C.
§ 1257(a). |
The judgment below is plainly final for purposes of this Court's certioran
jurisdiction. As this Court has long recognized, “(t}here have been instances where the
Court has entertained an appeal of an order that otherwise might be deemed interlocutory,
because the controversy had proceeded to a point where a losing party would be
irreparably injured if review were unavailing.” Republic Natural Gas Co. v. Oklahoma,
334 U.S. 62. 68 (1948). As discussed below. absent an immediate Stay from this Court.
Applicants face irreparable harm from the judgment below.
Moreover, in Cox Broadcasting Corp. v. Cohn. 420 U.S. 469 (1975). this Coun
identified four categories of cases in which a judgment is sufficiently final to justify this
Court's review even though further proceedings remain to be held in the state courts. The
fourth such category permits review even in “those situations where the federal issue has
been finally decided in the state courts with further proceedings pending in which the
party seeking review here might prevail on the merits on nonfederal grounds, thus
rendering unnecessary review of the federal issue by this Court,” and “reversal of the
state court on the federal issue would be preclusive of any further litigation on the
relevant cause of action rather than merely controlling the nature and character of, or
determining the admissibility of evidence in, the state proceedings still to come.” /d at
482-83. In these circumstances, “if a refusal immediately to review the state court
decision might seriously erode federal policy, the Court has entertained and decided the
federal issue, which itself has been finally determined by the state courts for purposes of
the state litigation.” /d. at 483; see also Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46,
55 (1989), ASARCO Inc. v. Kadish, 490 U.S. 605, 612 (1989); Goodyear Atomic Corp. v.
Miller, 486 U.S. 174, 178-80 (1988); Hudson Distribs., Inc. v. Eli Lilly & Co., 377 US.
386, 389 n.4 (1964).
The fourth Cox Broadcasting category is plainly applicable here. The federal
questions presented by this case have been finally decided by the court below, which
squarely rejected Applicants’ arguments that the Article [I and 3 U.S.C. § 5 preclude the
17
relief ordered by the court below, and that the selective and standardless manual recounts
approved and mandated by the court below would violate the federal Constitution and
other federal laws. Exh. H (Florida Supreme Court Brief) at 45-46. Accordingly. a
federal issue has been conclusively resolved, and there is no need for further state court
proceedings to finalize or crystallize the lower court's disposition of those federal
questions. It is equally clear that, absent immediate review, Applicants “might prevail on
the merits on nonfederal grounds, thus rendering unnecessary review of the federal issue
by this Court.” 420 U.S. at 482. The case was remanded for the selective manual
recounts to occur, and it is certainly possible that the results of those recounts could
eliminate Applicants’ need to litigate further, thereby depriving this Court of an
opportunity to decide the important constitutional and statutory issues at stake.
Moreover, reversal of the court below on any of the federal questions presented in
this case “would be preclusive of any further litigation on the relevant cause of action.”
420 U:S. at 482-83. If, as Applicants contend, the court below lacked authority to issue
the judgment below and the selective manual recounts ordered below violate the federal
Constitution or otherwise are inconsistent with federal law, then the determination of
those federal issues would be preclusive of any further state court litigation on the issue
of recounts. '
Finally, it is readily apparent that “a refusal immediately to review the state court
decision might seriously erode federal policy.” 420 U.S. at 483. The holding of the
selective, ever-shifting, and standardless hand-counting, if allowed to remain in effect,
18
would seriously erode fundamental federal policies. including the right to vote—the most
basic right of citizenship bestowed by the Constitution, Reynolds v. Sims. 377 U.S. 533.
561-62 (1964)—and the vital public interest in the lawful and consistent handling and
tabulation of ballots and the fairness and finality of elections for federal office.
particularly for the President of the United States. Accordingly, Cox and related cases
warrant immediate review of “the federal issue, which itself has been finally determined
by the state courts for purposes of the state litigation.” 420 U.S. at 482-83: accord
Goodyear Atomic Corp, 486 U.S. at 178-79 (applying this exception where “the
unreviewed decision of the Ohio Supreme Court might seriously erode federal policy in
the area of nuclear production”).
VI. REASONS FOR GRANTING THE STAY zr
This application fully satisfies the criteria that govern the propriety of granting a
stay, because (1) there is “a reasonable probability that four Members of the Court will
consider the issue sufficiently meritorious to grant certiorari,” Graves v. Barnes, 405 US. _
1201, 1203 (1972) (Powell, J., in chambers); (2) there is “a fair prospect that five Justices
-will conclude that the case was erroneously decided below,” Lucas v. Townsend, 486
U.S. 1301, 1304 (1988) (Kennedy, J., in chambers); and (3) it is likely that irreparable
injury will result if a stay is denied. /d.; California v. American Stores Co., 492 US.
1301, 1304-07 (1989) (O’Connor, J., in chambers). In appropriate cases, the Circuit
Justice may “balance the equities to determine whether the injury asserted by the
applicant outweighs the harm to other parties or to the public.” Lucas, 486 U.S. at 1304.
These factors clearly justify issuance of a stay here.
19
A. There Is A Reasonable Probability That At Least Four Members Of
This Court Would Conclude That This Case Warrants Plenary
Consideration
There is a reasonable probability that four or more Members of this Court would
vote to grant certiorari.
1. This Court previously granted certiorari to review a closely related case arising
out of the same election dispute in Florida. See Bush, Exh. D. The petition for a writ of
certiorari that will be filed in this case will present similar questions under Article II of
the United States Constitution and 3 U.S.C. § 5, as well as the Fourteenth Amendment.
Few issues could be more important than those presented in this case. At stake is
the lawful resolution of a national election for the office of President of the United States.
As this Court has often recognized, the American public's right to vote is one of the most _
sacred protected by our Constitution: “No right is more precious in a free country than
that of having a voice in the election of those who make the laws under which, as good
citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is
undermined.” Williams v. Rhodes, 393 U.S. 23, 31 (1968) (quoting Wesberry v. Sanders,
376 U.S. 1, 17 (1964)). The Florida Supreme Court's decision poses an imminent danger
to that right.
The choosing of presidential electors is a matter of great national importance and
interest. “As this Court stated in Anderson v. Celebrezze, 460 U.S. 780 (1983), “in the
context of a presidential election, state-imposed restrictions implicate a uniquely
important national interest. For the President and 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.” /d. at 794-95 (footnote omitted). Given the national
significance of the Florida election results, it is essential that the counting of ballots be
conducted in a fair and consistent manner in accordance with both federal laws and the
laws established by the Florida Legislature pursuant to the authority conferred on it under
Article II of the United States Constitution. In the wake of the Florida Supreme Court's
decisions, counties in Florida have participated in a blatantly arbitrary, subjective, and
standardless process in attempting to count ballots by hand in an effort to divine the
intent of the voters. The Nation's citizens have witnessed this standardless process
unfold as they anxiously await a resolution of the election outcome. By retroactively
canginn the law in Florida through judicial intervention, the Supreme Court of Florida’s .
decision undermines the statutory scheme Florida has established. pursuant to the grant of
authority through Article II of the United States Constitution, and consistent with
Section 5, to elect electors for President.
2. This Court’s review of the Supreme Court of Florida's decision is warranted
because it “decided an important federal question that conflicts with relevant decisions of
this Court,” Sup. Ct. R. 10(c); it “decided an important federal question in a way that
conflicts with the decision of . . . a United States court of appeals,” Sup. Ct. R. 10(b); and
it “decided an important question of federal law that has not been, but should be, settled
by this Court... .” Sup. Ct. R. 10(c). As discussed in greater detail below, this case
presents important questions regarding the federal constitutional and statutory restraints
on the ability of States to impose post hoc requirements on the appointment of
21
presidential electors, and to change requirements for the resolution of controversies
concerning the appointment of electors. The decision below also conflicts with
precedents of this Court—including this Court's December 4, 2000 decision in Bush v.
Palm Beach County Canvassing Board—and of the courts of appeals regarding the scope
of the Fourteenth Amendment protections for the fundamental right to vote and the
application of 3 U.S.C. § 5. Moreover, these important questions are presented within a
few days of December 12, the date on which the State of Florida may make a final
determination concerning the appointment of its electors to take advantage of the “safe
harbor” under 3 U.S.C. § 5.
3. There is a profound national interest in ensuring the fairness and finality of
elections, particularly an election for the highest office in the land. This is precisely the :
type of question that the Nation justifiably expects this Court authoritatively to decide.
Indeed, because of the Florida Supreme Court’s judicial amendments to the legislative
structure for choosing Florida’s electors, absent a decision by this Court, the election
results from Florida will remain under a cloud of uncertainty. The consequence could be
a constitutional crisis. Quite simply, this is the sort of case that this Court should
unquestionably hear.
B. Applicants Are Likely To Prevail On The Merits
There is at least a “fair prospect” that Applicants will prevail on the merits in this
1. The Florida Supreme Court's Decision Violates Article [I Of
The Constitution Of The United States ‘
The Framers expressly granted the legislatures of the several States plenary power
over the appointment of electors, providing that each State shall choose electors “in such
Manner as the Legislature thereof may direct.” U.S. CONST., art. II. § 1, cl. 2. As this
Court has recognized, the Constitution “leaves i: to the legislature exclusively to define
the method of effecting the object (of appointing electors].” McPherson v. Blacker. 146
U.S. 1, 27 (1892) (emphasis added). Indeed, the Framers’ “insertion of those words” in
Article [I—"in such Manner as the Legislature . . . may direct”—undeniably “operate([s]
as a limitation upon the State in respect of any attempt to circumscribe the legislative
power.” Bush, Exh. D at 5 (Dec. 4, 2000) (quoting McPherson, 146 U.S. at 25).
As described above, the Florida legislature enacted a carefully-crafted statutory
scheme to govern the appointment of presidential electors. In so doing, “the legislature
[was] not acting solely under the authority given it by the people of the State, but by
virtue of a direct grant of authority made under Art. II, § 1, cl. 2, of the United States
Constitution.” Bush, Exh. D. at 4. By rewriting that statutory scheme—thus arrogating
to itself the power to decide the manner in which Florida’s electors are chosen—the
Florida Supreme Court substituted its judgment for that of the legislature and violated
Article II. Such a usurpation of constitutionally-delegated power defies the Framers’
plan. The Florida legislature never provided for such judicial meddling in its legislative
structure. Indeed, only by resort to its “equitable powers” to provide extraordinary relief
under the Florida Constitution could this one Florida court find authority to act.
23
The decision below overrides numerous provisions of the detailed and specific
statutory scheme enacféd by the Florida legislature. In the first place, contrary to the
ruling below (Exh. A at |), the Supreme Court of Florida lacked jurisdiction (as a matter
of federal law) to enter the judgment below.> As this Court recently reemphasized.
Article II, § 1 authorizes the States to appoint electors only in “such Manner as the
Legislature thereof may direct,” and thus the federal Constitution “operat(es] as a
limitation upon the State in respect of any attempt to circumscribe the legislative power”
of the State. Bush, Exh. D at 5 (quoting McPherson v. Blacker, 146 U.S. 1, 25 (1892)).
Under Florida law, assuming arguendo that the legislature has authorized contest actions
in presidential elections, only the Circuit Court of Leon County possessed legislatively
conferred jurisdiction to resolve the Gore respondents’ claims. Fla. Stat. § 102.168(1) ie
(permitting election certifications to be “contested in the circuit court”); id. § 102.168(8)
(authorizing “{t}the circuit judge to whom the contest is presented” to resolve contests).
5 Applicants specifically raised this point in their post-argument brief in the court below, —-
noting that Article II confers sole authority on state legislatures to determine the manner of
appointing electors (Exh. M at 2), and that the legislature's authority “‘cannot be taken from
them or modified by their State constitutions .. . ."” Exh. M at 2 n.1 (citations omitted). As
Applicants pointed out, “equitable relief cannot lie because . . . ‘the original and appellate
jurisdiction of the courts of Florida is derived entirely from article V of the Florida
Constitution, not by the Florida legislature."” Exh. M. at 5-6 (citation omitted). In pointing
out the absence of any legislatively conferred basis for the Supreme Court of Florida's
exercise of jurisdiction in this case, Applicants corrected any misimpression that may have
been caused by their counsel’s response to questions from Chief Justice Wells during oral
argument below. The court below apparently relied on the parties’ “agree{ment) that this
appeal is properly before this Court” (Exh. A at | n.1), but of course ““the parties cannot
stipulate to jurisdiction over the subject matter where none exists."” Polk County v. Sofka,
702 So. 2d 1243, 1245 (Fla. 1997) (quoting Cunningham v. Standard Guar. Ins. Co., 630 So.
2d 179, 181 (Fla. 1994)).
24
By contrast. the Florida Legislature granted no such jurisdiction to the Florida
Supreme Court. The sole basis for the judgment below was instead the Florida
Constitution, which confers original and appellate jurisdiction on the state supreme court
in certain circumstances. FLA. CONST. art. V, § 3(b). Because Article II. § 1 of the
federal Constitution does not permit state constitutions to override a state legislature's
selection of the manner of choosing electors, and because the Florida Legislature has
given the Florida Supreme Court no role in reviewing any contest to the results of a
presidential election, the court below lacked jurisdiction to enter its judgment, and the
judgment below should be vacated.
Second, the judgment below also conflicts with federal law because it ignores the
fact that there is no basis or precedent in Florida law for applying the ultimate judgment ;
of a successful § 102.168 contest proceeding to a presidential election. By its terms, the
§ 102.168 remedy does not apply to presidential elections, and it certainly does not
authorize a contest action by a candidate for President (rather than by an unsuccessful
candidate for presidential elector). Florida law instead establishes separate procedures
for certifying the election of presidential electors and for replacing electors when
appropriate, but made no provision for a “contest” of the presidential election. See Fla.
Stat. §§ 103.011, 103.021(5S). Thus, the judgment below violates Article II, § 1, and fails
to comply with 3 U.S.C. § 5 because it rests upon a newly announced judicial extension
of the § 102.168 remedy that was not authorized by the Florida Legislature. See Fladell
v. The Elections Canvassing Comm'n of the State of Fla., Nos. CL00-10965AB et al.
(Fla. Cir. Ct. Nov. 20, 2000) (attached as Exhibit I hereto), aff'd on other grounds,
25
Fladell v. Palm Bch. County Canvassing Bd., Nos. SC00-2372 & SC00-2376, at 4 (Fla.
Dec. 1, 2000).
Third, the court essentially overruled Fla. Stat. §§ 102.166(4)(d) and
102.166(5)(c), which mandate that a “county canvassing board shall,” among other
options, “{mJanually recount a// ballots” (emphasis added). By ordering that the results
of the partial recount conducted by the Miami-Dade Canvassing Board be included in the
certified election results, the Florida Supreme Court rejected the judgment of the
legislature, which expressly denied the canvassing boards the authority to recount or
certify only a portion of the ballots.
Fourth, the court violated the mandate of this Court in Bush v. Palm Beach County
Canvassing Board, No. 00-836 (Dec. 4, 2000), by relying in substantial part on its
vacated November 21 decision. For example, in justifying its order that additional votes
from Palm Beach County must be added to the certified totals despite the fact that those
votes were the product of a manual recount that met neither the Statutory seven-day
deadline nor the November 26 deadline fashioned out of whole cloth by the court below
in its now-vacated opinion, the court below expressly relied on the now vacated judgment
as the sole basis for that determination. Exh. A at 34-35 (citing holding of November 21
decision as the basis for extending the November 26 deadline). Moreover, by upholding
the inclusion of the additional Broward County votes resulting from the untimely manual
recount in that county, the court below necessarily and impermissibly relied on the
validity of November 21’s extension of the deadline for submission of those vote totals,
even though the November 21 decision stands vacated by this court.
26
Finally, the court's refusal to reject reliance on “dimpled” or indented ballots
(such as those counted in Broward County) violates Fla Stat. § 10] -5614(5), which
expressly provides that a ballot will be considered valid “if there is a clear indication of
the intent of the voter as determined by the canvassing board” (emphasis added).6 By
legislature.
This Court has recognized that the legislature's Article II power of appointment is
exclusive. See McPherson, 146 U.S. at 34-35 (“The appointment of these electors is thus
placed absolutely and Wholly with the legislatures of the several States.) (quoting with ;
approval Senate Rep. Ist Sess. 43 Cong. No. 395 (Sen. Morton)). Indeed, the
Constitution contains provisions that vest responsibility in the States qua States, e.g. U.S.
CONST. art. I, § 8, cl. 16, as well as provisions that, as here, single out the particular
branch of state government charged with exercising certain duties integral to the
functioning of the federal government, e.g., U.S. CONST., art. I, § 2, cl. 4. In light of the
Constitution’s precise distinctions among state legislative, executive, and judicial powers,
27
the F ramers’ decision to vest specific authority in state legislatures must be understood to
be exclusive of state executive or judicial power to Prescribe the “manner” of appointing = -
electors; where the Constitution assigns a particular function (0 a particular branch of
state government, fulfillment of the constitutional design requires that such an assignment
be accorded legal meaning. Thus, in the absence of a Clear and express delegation of the
appointment power by the legislature to a coordinate branch of government, the
Constitution bars the exercise of that power by any other branch.
It is no answer to characterize the Florida Supreme Court’s decision as an Ordinary
exercise of judicial review. The Florida Supreme Court does not have Original
jurisdiction in this matter. The sole jurisdictional basis relied upon by the court below is
Article V of the Florida Constitution, but the exercise of authority conferred by the state.
Constitution to intrude into the process for selecting Presidential electors would Violate
Article II of the federal Constitution by exercising a power not given to it by the Florida
legislature. Mandamus or other equitable relief cannot lie because, as the Florida
Supreme Court itself has frequently noted, “the original and appellate jurisdiction of the
courts of Florida is derived entirely from Article V of the F lorida Constitution, nor by the
Florida legislature.” Allen v. Butterworth, 756 So. 2d 52, 63 (Fla. 2000). See also
Dresner v. City of T. allahassee, 134 So.2d 228, 229 (Fla. 1961) (“This Court derives its
appellate jurisdiction from article V, Florida Constitution.”). See Exh. M at 5-6.
Furthermore, by authorizing extended (and partial) manual recounts in selected
counties, and by unilaterally altering the Statutory deadlines for certifying election
returns, the court below plainly altered the “manner” of appointing electors. Although
28
the Framers recognized that a state legislature could permit staie courts to play a more
active role in the process—it could. if i-chose. even grant the state Judiciary the authorin
to determine the manner of appointment. see McPherson. 146 U.S. at 34-3 5—the Florida
legislature has done no such thing here. The unauthorized exercise of constitutionally
delegated power cannot escape this Court's scrutiny through the simple expedient of
labeling it “judicial review” of a contest proceeding.
2. The Florida Supreme Court’s Decision Fails To Comply With
3 U.S.C. § 5
Congress has provided that when “controversies or contests concerning the
appointment of” presidential electors from a State arise, such disputes are to be resolved
“pursuant to” those “laws enacted prior to” election day. 3 U.S.C. § 5 (emphasis added).
If this “principle of federal law” is complied with, Bush, Exh. D at 6, a resulting
determination of the controversy is entitled to “conclusive” effect and “shall govern in
the counting of the electoral votes,” 3 U.S.C. § 5. As the language of the statute makes
clear, Congress has asserted its federal role in the context of presidential elections to
ensure that States will be “assure{d] finality” in their determinations when they resolve
such disputes in compliance with Section 5. Bush, Exh. D at 6. Thus, “a legislative wish
to take advantage of the ‘safe harbor’ would counsel against any construction of [state
law] that Congress might deem to be a change in the law.” la
Despite this Court's recent suggestion to the Florida Supreme Court that it is not
free to disregard the Florida Legislature's decision to avail itself and the citizen’ >f
Florida of the benefits of § 5, and despite that court’s recognition that “because the
selection and participation of Florida’s electors in the presidential election process is
subject to a stringent calendar controlled by federal law, the Florida election law scheme
must yield in the event of a conflict” (Exh. A at 18 n.11), the court below has again
ordered relief that fails to adhere to § 5’s requirements, with the result that the electoral
process in Florida has been thrown into complete confusion and chaos only 4 days before
the December 12 deadline imposed by § 5. Swift action from this Court is essential to
preserve the protections that Congress sought to confer upon the States through § 5, to
secure the certainty and finality of Florida’s electoral process, and to ensure that Florida’s
dunt ements Cups
The Florida Supreme Court’s decision effectively announces several new post hoc
changes in Florida law. First, prior to the state court’s determination in this case, existing
Florida law granted discretion to the local county canvassing boards to determine whether
to conduct manual recounts and, if so, the methods by which to count ballots. When
confronted with cases in which counties declined to conduct manual recounts, courts
have deferred to the canvassing board’s determination, even when challenged under the
contest provision of Fla. Stat. § 102.168. See, e.g., Broward County Canvassing Bd. v.
Hogan, 607 So. 2d 508, 510 (Fla. Dist. Ct. App. 1992) (“Although section 102.168 grants
the right of contest, it does not change the discretionary aspect of the review procedures
outlined in section 102.166. 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 case law had also remained faithful to the statutory language
embodied in Fla. Stat. §§ 102.166(4)(c), (5)(a)-(c), which clearly leaves the determination
of whether to conduct a manual recount to the county canvassing boards. By now
eudusing countion to conduct manusl coccunts Gat Gay Gstenuineé ast to undatshe, O00
Florida Supreme Court has changed preexisting law by departing from the statutory
language (and also from the prior case law construing that language) and by effectively
ee ye nT ee
error.8
Similarly, as the law existed before the November 7 election, there was no
statewide standard that acceptable ballots included “dimpled” ballots under Florida law.
The Election Code provides only that the canvassing board is to look for “a clear
indication of the intent of the voter.” Fla. Stat. § 101.5614(5). This begs the question, of
course, of what constitutes a “clear indication.” Whatever may be a proper answer, one
7 Indeed, the Fourth District Court of Appecis reversed a trial court’s decision that a local
canvassing board had erred in refusing to conduct a manual recount. See Broward County
Canvassing Bd., 607 So. 2d at 509. In upholding the board’s discretion to reject the
candidate’s request for a manual recount after an initial machine recount changed the margin
of victory from five votes to three, the court noted the board’s reasoning: “Such voter errors,
the board explained, are caused by hesitant piercing, no piercing, or intentional or
unintentional multiple piercing of computer ballot cards, creating what are referred to as
overvotes and undervotes.” Jd
8 That order is also at odds with what appears to have been previous policy that the counties
undertook manual recounts only because of evidence of machine error and not solely because
of the failure of certain voters to fully punch through their ballot cards. During oral
argument before the U.S. Supreme Court in Bush v. Palm Beach County Canvassing Board,
the Florida Attorney General’s office could not name a single instance, prior to this year’s
presidential election, in which manual recounts were undertaken for mere voter error. See
Tr. of Oral Arg. at 39-40, attached hereto as Exh. K.
31
answer not permitted is one created after Election Day. Nevertheless. the Florida
Supreme Court has now weighed in, and under its decision “dimpled” ballots have
effectively been deemed to constitute valid votes (as in the case of Broward County).
This standard was previously unknown to Florida law, and constitutes a change in the
legislative standard for counting votes that fails to meet Section 5's requirements.°
Finally, the 15th Circuit Court’s November 15 decision relied upon and followed
by the Palm Beach County Canvassing Board to count patterns of “dimpled” or indented
chads as votes was a plain deviation from the County's prior, established written
policy.'° According to the Palm Beach County guidelines on counting ballots issued in
November 1990, the County Canvassing Board made clear that “a chad that is fully
attached, bearing only an indentation, should not be counted as a vote . . . an indentation
is not evidence of intent to cast a valid vote.” Exh. J. That standard of what constitutes
a vote was clearly reflected in the instructions given to Palm-Beach voters on election
day, which stated: “After voting, check your ballot card to be sure your voting selections
are clearly and cleanly punched and there are no chips left hanging on the back of the
9 As discussed below, this differential treatment of votes depending upon county of residence
is also a violation of the Equal Protection Clause, and the manifestly unfair change in vote
counting standards mid-way through the recount violates the Due Process Clause.
10 See Florida Democratic Party v. Palm Beach County Canvassing Board, No. CL00-
11078AB slip. Op. (Fla. 15* Jud. Cir. Nov. 15, 2000)
32
card.” Touchston v. McDermott, No. 00-15985. 2000 WL 1781942 at *n.19 (11th Cir.
Dec. 6, 2000) (Tjoflat, dissenting). !!
Despite that previously announced standard, and the clear instructions on the
voting card, the | Sth Circuit Court ordered the Board to reverse course after the
November 7 election and decided that it would count some ballots that would not have
complied with its prior policy. This change in policy by the organ of government granted
the authority to conduct manual recounts fails to satisfy 3 U.S.C. § 5's express
requirement that controversies be resolved pursuant to law as it exists prior to election
day. By giving effect to that change in policy, the Florida Supreme Court’s decision
compounds the noncompliance.
In each of these ways, the Florida Supreme Court's decision conflicts with Section .
5's requirements. By announcing new, post-election changes in the law, the Florida
Supreme Court's decision has two distinct consequences. First, because it failed to rule
“pursuant to” the laws as enacted prior to election day, its decision is not “conclusive”
and should not bind the parties or Florida's election officials. Second, the decision places
Florida’s twenty-five electors in peril, in that the resolution of the contest concerning
these electors will not be afforded Section 5’s protections for Congress’s counting
purposes because it was resolved based upon a newly announced rule of law. These
actions frustrate the Florida legislature's choices in establishing a statutory scheme
'! The instructions provided to voters in Broward County, also a punch-card county, similarly
stated: “To vote, hold the stylus vertically. Punch the stylus straight down through the ballot
card for the candidates or issues of your choice.” /d.
33
~ consistent with 3 U.S.C. § 5 and, therefore. should be reversed by this Court. These
actions also frustrate one of the obvious objectives of both Article II and Title 3—
confidence in presidential election results by assuring that elections are determined under
rules in effect when the votes are cast.
3. The Florida Supreme Court’s Decision Violates The Equal Protection
And Due Process Clauses Of The Fourteenth Amendment
a. Equal Protection
“Undeniably the Constitution of the United States protects the right of all qualified
citizens to vote . . . .” Reynolds v. Sims, 377 U.S. 533, 554 (1964). The right to vote is
“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.” Reynolds, 377 U.S. at 555.
“The conception of political equality . . . can mean only one thing—one person, one vote
_... The idea that every voter is equal to every other voter in his State, when he casts his
ballot in favor of one of several competing candidates, underlies many of our decisions.”
Id. at 558 (internal citations omitted). Moreover, as the Fifth Circuit stated in 1980,
“qualified voters have not only a constitutional[ly] protected right to vote, but also have
the concomitant right to have their votes counted. These rights can neither be denied
outright, nor destroyed by alteration of ballots, nor diluted by ballot-box stuffing.”
Gamza v. Aguirre, 619 F.2d 449, 452 (Sth Cir. 1980) (internal citations omitted).
It is well established that the Equa! Protection Clause prohibits government
officials from implementing an electoral system that operates to give the votes of
similarly situated voters different effect based on the happenstance of the county or
district in which those voters live. See, e.g., Roman v. Sincock. 377 U.S. 695. 712 (1964):
WMCA, Inc. v. Lomenzo, 377 U.S. 633, 653 (1964) (state apportionment scheme “cannot.
consistent with the Equal Protection Clause, result in a significant undervaluation of the
weight of the votes of certain of a State's citizens merely because of where they happen
to reside”).
The requirement of equal treatment of voters in different geographical areas
- extends to situations—like this one—where a facially neutral voting scheme results in the
disparate treatment of voters based on the counties or geographic regions in which they
live. In O'Brien v. Skinner, 414 U.S. 524 (1974), for example, this Court held
unconstitutional the New York absentee ballot statute because it made no provision for
persons who were unable to vote while they were incarcerated » their county of
residence. Under the New York statute, “if [a] citizen is confined in the county of his
legal residence he cannot vote by absentee ballot as can his cellmate whose residence is
in the adjoining county.” /d. at $29. As a result, the Court held, “New York’s election
Statutes . . . discriminate between categories of qualified voters in a way that .. . is wholly
arbitrary.” /d. at 530. The Court therefore concluded that “the New York statutes deny
appellants the equal protection of the laws guaranteed by the Fourteenth Amendment.”
Id. at $31. |
As in O’Brien, the necessarily disparate manual recount ordered by the Florida
Supreme Court arbitrarily treats voters differently based solely on where they happen to
reside in Florida. For example, where there is a partial punch or mark for one candidate
on a ballot, that ballot may be counted as a “vote” in the counties (and now courts as
35
ae
well) undertaking a manual recount. but not in any other Florida county. The court's
order also entails the result that the ballots that are counted as part of the rome
proceedings be evaluated under a different standard than those used to evaluate ballots in
the other counties that have already completed manual recounts. Indeed, the “standards”
used in those earlier manual recounts themselves constituted equal protection violations.
since, to the extent they existed at all, they varied widely from county to county, and even
changed from day to day or hour to hour within a single Florida county. By permitting
further inconsistent and standardless recounts to be conducted during the contest
proceeding, the court’s order guarantees disparate treatment for similarly situated ballots
both in other counties and within the counties subject to the order. The equal protection
violations are compounded by the fact that the court adopted a standard of “selective
deference” to the decisions of the county canvassing boards that, as discussed above. only
benefits the Gore Respondents. This intentional discrimination among voters on the basis
of their county of residence, or even the precinct in which they reside, violates the
fundamental principle of equal protection that voters cannot be subjected to disparate
treatment “merely because of where they reside[ ].” Reynolds, 377 U.S. at 557; see id. at
566 (“Diluting the weight of votes because of place of residence impairs basic
constitutional rights under the Fourteenth Amendment just as much as invidious
36
discriminations based upon factors Such as race or economic Status.”’) (citation
omitted). !2
b. Due Process
1077-78 (1st Cir. 1978)), cert. dismissed, 459 U.S. 1012 (1982), and which manifestly
violates the Due Process Clause.
As explained above, the Florida Supreme Court has deviated Substantially from * -
the election law and practices in place prior to election day by ordering that the manual
recount occur under circumstances and standards that have never before been established
in Florida law. The court has therefore changed the rules yet again as the “game” was
being played, and as a result, the contest is being determined by “rules” that were not in
place when the votes were cast—in plain violation of the Due Process clause. See Logan,
General reasoned that “If hand recounts have already occurred in [a] number of . . . counties
37
455 U.S. at 432: Roe v. Alabama, 43 F.3d 574, 580-81 (11th Cir. 1995): Duncan. 657
F.2d at 703; Griffin, 570 F.2d at 1077-79.
In Briscoe v. Kusper, 435 F.2d 1046 (7th Cir. 1979), for example, the Seventh
Circuit invalidated an election board’s imposition of ad hoc requirements for nominating
petitions, agreeing with the plaintiffs’ contention that “the Board's failure to issue
guidelines clarifying the statutory standards for nominating petitions contravened due
process.” /d. at 1054, 1055. As the Seventh Circuit explained, “protection of the full
measure of First and Fourteenth Amendment freedoms commands that state regulation of
nominating procedures include a clear statement of the specific requirements by which
nominating petitions will be tested.” /d. at 1058.
The arbitrary, capricious, and standardless manual recount being used here suffers .
from the same fault as the nomination procedure invalidated in Briscoe. If the State of
Florida wishes to implement a manual recount procedure, it must ensure that meaningful
guidelines are established for determining whether and how to conduct such a recount,
rather than leaving such crucial decisions to the unbridled discretion and arbitrary
decision making of judges, local election officials, and as-yet unspecified other
individuals who may have a keen personal interest in the outcome of an election. The
cunts failure to provide such guidelines constitutes a clear violation of the Due Process
Clause.
With humans making subjective determinations about an absent voter's intent,
without standards established by law, there is always the risk that the method for
determining how to count a vote will be influenced, consciously or unconsciously, by the
38
officials’ desire for a particular on That risk is heightened significantly here because
of the irreversible damage done to the ballots during the recount processes and the Clear
errors that have occurred during the manual recounts.!3 Further manual recounts, by
another varying and inconsistent set of arbitrary “standards,” cannot, by definition. be
accurate. They will simply compound the arbitrary and standardless process that has
been the hallmark of the Florida recount.
C. Applicants Will Suffer Irreparable Harm In The Absence Of A Stay,
And The Balance Of The Equities Clearly Favors Issuance Of A Stay
Applicants will suffer irreparable injury unless a Stay issues in this case. The
Florida Supreme Court’s decision imperils Governor Bush’s proper receipt of Florida's
twenty-five electoral votes. The Florida Supreme Court's decision raises a reasonable =
possibility that the November 26 certification of Governor Bush as the winner of
Florida's electoral votes will be called into doubt—or purport to be withdrawn—at a time
when the December 12 deadline for naming Florida’s electors could preclude Applicants’
ability to seek meaningful review by this Court.!4
'3 For example, during the manual recount process, ballots were poked, prodded,
rumpled, creased, twisted, dropped, stained, tabbed, and otherwise mishandled. Not
surprisingly, this rough treatment caused massive damage to the ballots, including
dislodging and removing “chads” from ballots. State and county elections officials
admitted that the more the ballots are handled, the more chads fall out, and, thus, the
harder it is to conduct an accurate count. Indeed, the counters themselves recognize
that they have made substantial errors in counting the ballots handled in this fashion
in the counties selected for manual recounts.
14 Under 3 U.S.C. § 7, the date for the meeting of electors this year is December 18 and
thus controversies and contests must be resolved by December 12 for their
[Footnote continued on next page]
39
Failure to resolve a controversy or contest concerning the appointment of
presidential electors pursuant to the law as enacted prior to election day will jeopardize
the “conclusive” effect of any such determination for Congress's counting purposes. See
3 U.S.C. § 5: Bush v. Palm Beach County, No. 00-836, slip op. at 6. Because Section 5
requires disputes over the appointment of presidential electors to be resolved within six
days before the time fixed for the meeting of electors, unless this Court acts immediately
the Applicants’ injury will be irreparable. Reversal of the Florida Supreme Court's
decisic.: to correct the clear constitutional errors, however, will eliminate the possibility
that a controversy or contest will be ongoing on December 12, because the Florida
electors will have been determined by standards in effect prior to election day. See id.
(“If the state legislature has provided for final determination of contests or controversies .
by a law made prior to election day, that determination shall be conclusive if made at
least six days prior to said time of meeting of the electors.”). The current “contest” can
not resolve the controversy because it is irreparably tainted by the Florida Supreme
Court’s unauthorized and unlawful rewrite of the legislative structure to select Florida’s
electors.
Furthermore, failure to stay the enforcement of the Florida Supreme Court’s order
will also irreparably harm the entire electoral process under our federal/state dual
scheme. Because December 12 is rapidly approaching, the state court’s ruling threatens
(Footnote continued from previous page]
determination to be given conclusive effect and to govern in Congress’s counting of
the electoral votes.
to deprive the State of Florida of its proper voice in the presidential election—the \ en
voice Section 5 intends to protect. Having failed to resolve the controversy at issue
consistently with Section 5’s requirements, the Florida Supreme Court's decision is
deprived of the “conclusive” effect that Congress would otherwise accord to it in similar
circumstances. Such an outcome will completely frustrate Congress's purposes in
enacting Section 5 of ensuring States that the votes of their rightfully appointed
presidential electors will be counted by Congress.
It is no answer to claim that Applicants, as the currently certified winners in
Florida, face only “speculative” injury as a result of the Florida Supreme Court's order.
In the peculiar, important and sensitive circumstances of this case, any delay in the final
resolution of this matter threatens Applicants, and any doubt as to the election
undermines the national interest.
41
Vv. CONCLUSION
Under these circumstances, the effect of a failure tO grant a stay could well be to
deny Applicants fully effective relief in this case and to inflict material harm on the
electoral process. A stay is further justified by the extraordinary importance of the
outcome of this case and the extremely time-sensitive nature of relief. Applicants are
threatened with irreparable injury, and the equities clearly favor granting a stay, because
a Stay is the only means of protecting the integrity of the federal electoral process while
ensuring proper and orderly access to the judicial system.
Respectfully submitted.
MICHAEL A. CARVIN DORE B. OL
Cooper, CARVIN & ROSENTHAL, P.L.L.C. Counsel of Record
1500 K Street, N.W. DouGctas R. Cox
Suite 200 THOMAS G. HUNGAR
Washington, D.C. 20005 GIBSON, DUNN & CRUTCHER LLP
(202) 220-9600 1050 Connecticut Avenue, N.W.
Washington, D.C. 20036
BARRY RICHARD (202) 955-8500
GREENBERG TRAURIG, P.A.
101 East College Avenue BENJAMIN L. GINSBERG
Post Office Drawer 1838 PATTON Boccs LLP
Tallahassee, FL 32302 2550 M Street, N. W.
(850) 222-6891 Washington, D.C. 20037
(202) 457-6000
GEORGE J. TERWILLIGER III
TIMOTHY E. FLANIGAN
601 13th Ste aw
treet, N.W.
Washi D.C.
(202) 626-3600 ~
Counsel for Applicants
December 8, 2000
42
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.