Amicus Curiae Brief — Bush v. Gore

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IN THE

Supreme Court of The United States

GEORGE W. BUSH

Petitioner,

Vv.

ALBERT GORE, JR., et al..

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the

Eleventh Circuit

MOTION FOR LEAVE TO FILE BRIEF

AMICUS CURIAE AND BRIEF OF ROBERT HARRIS,

STEVEN MEDINA AND OTHER FLORIDA VOTERS

AS AMICI CURIAE

BRUCE J. TERRIS ROGER J. BERNSTEIN

Counsel of Record 331 Madison Avenue

CAROLYN SMITH PRAVLIK 15th Floor

KATHLEEN L. MILLIAN New York, NY 10017

SARAH A. ADAMS (212) 338-9188

TERRIS, PRAVLIK & STEVEN G. NOLES

MILLIAN, LLP P.O. Box 680883

1121 12th Street, N.W. Fort Payne, AL 35968

Washington, D.C. 20005

STEVEN SELIGER

(202) 682-2100

a 16 N. Adams Street

RANDY M. WEBER Quincy, FL 3235]

Suite 1114

Miami, FL 33131

(305) 536-3434

WiLSON-EPES PRINTING CO., INC. -— (202) 789-0096 -— WASHINGTON, D. C. 20001

______ _~———

BEST AVAILABLE COPY

IN THE

Supreme Court of The Gnited States

GEORGE W. BUSH

Petitioner,

Vv.

ALBERT GORE, JR., et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE OF ROBERT HARRIS, STEVEN MEDINA

AND OTHER FLORIDA VOTERS

AS AMICI CURIAE

_ Due to the time constraints in filing briefs in this matter,

amici curiae were not been able to contact Petitioner to

ascertain his position on their participation. We are therefore

filing this motion for leave to file this brief. Respondents have

consented to the filing of this brief.

Respectfully submitted,

Bruce J. Terris

Counsel of Record

Carolyn Smith Pravlik

Kathleen L. Millian

Roger J. Bernstein

December 14, 2000 Counsel for Amici Curiae

TABLE OF CONTENTS

Page

TABLE OF CASES AND AUTHORITIES ...............++: ii

INTEREST OF AMICI CURIAE .....sscsssooossossessesssseeesss 1

SUMMARY OF ARGUMENT ........:c:cccsesssesssessseesneesees 2

AT ee 3

CONCLUSION ....0.ccsscssesssesssesssssssessvessecssecsscesssssessseeesees 11

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TABLE OF CASES AND AUTHORITIES

CASES Page

Bush v. Palm Beach County Canvassing Board,

No. 00-836, U.S. Sup. Ct., Dec. 42.0.0... ccceeeeees 4

UNITED STATES CONSTITUTION

Article [I of the United States Constitution ........... passim

STATE STATUTES AND REGULATIONS

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eR SE. CIURIET ccersicnstnsnniqnenenincsonminitatainiecdnemmmiementis 7,9, 10

IN THE

Supreme Court of The Anited States

GEORGE W. BUSH

Petitioner,

Vv.

ALBERT GORE, JR., ef al,

: Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

BRIEF AMICUS CURIAE OF ROBERT HARRIS,

STEVEN MEDINA AND OTHER FLORIDA VOTERS

AS AMICI CURIAE

INTEREST OF AMICI CURIAE”

The amici curiae are all voters of Florida. They brought

two actions in the Circuit Court of the Second Judicial Circuit

for Leon County, Florida, contesting the certification by the

State of Florida Election Canvassing Commission and Secretary

of State of the election of the electors of George W. Bush and

Richard Cheney. These actions were removed to the United

States District Court for the Northern District of Florida and

Pursuant to Supreme Court Rule 37.6, amici state that no counsel for a party

has authored this brief in whole or in part, and that no person or entity other

than amici and their counsel has made a monetary contribution to the

preparation or submission of this brief.

2

consolidated. Harris v. Florida Elections Canvassing

Commission, Nos. 4:00-CV-453-MP; 4:00-CV-459- MP.

Judgment was entered for the defendants and the cases are on

appeal to the Court of Appeals for the Eleventh Circuit. Harris

v. The Florida Elections Canvassing Commission, No.00-

16423-G.

The issue in these consolidate contest actions is whether the

regulation of the State of Florida allowing the counting of

overseas ballots until 10 days after election day is valid even

though it is directly inconsistent with two Florida statutory

provisions. Defendants have raised as a defense that the

regulation was issued in response to a consent decree entered

between the Florida Department of State and the federal

government and was approved by a federal district court. The

case therefore raises the issue whether a regulation issued by an

executive agency of the Florida government and approved by a

federal court is consistent with Article II, Section 1, clause 2 of

the United States Constitution which provides for the choosing

of presidential electors “in such Manner as the Legislature may

direct.” Since this issue is directly involved in the present case

before this Court, amici curiae respectfully request leave io file

a brief in this action. Amici curiae believe that it will be helpful

to the Court to ascertain the effect of the Court’s ruling in the

present case on other pending litigation which will also

significantly affect the outcome of the presidential election.

SUMMARY OF ARGUMENT

George W. Bush has taken inconsistent positions on the

issue of whether the state legislatures have the exclusive power

to determine the manner in which presidential elections are

conducted. His position changes on the issue depends on how it

will affect the outcome of the Florida Presidential Election.

3

ARGUMENT

In Bush v. Palm Beach County Canvassing Board, No. 00-

836, the Florida Supreme Court determined a new date for the

submission of election results of the county canvassing boards

on the ground that this determination was necessary to reconcile

various provisions of Florida election law. In his appeal to this

Court from that decision, Governor George W. Bush (hereafter

“Governor Bush”) argued strenuously to this Court that Article

II, Section 1, clause 2 of the United States Constitution provides

that state legislatures have the exclusive power to determine the

manner in which presidential elections are conducted. Thus,

Governor Bush stated: “Article II of the Constitution * * *

invests the authority to regulate the manner of appointing

presidential electors in state legislatures.” Brief for Petitioner,

Bush v. Palm Beach County Canvassing Board, U.S. Sup. Ct.,

No. 00-836, p. 14. He continued: “The Framers deliberately

chose to invest the power to determine the manner of choosing

electors in this particular branch of state government, thereby

excluding the exercise of such power by the other branches.”

Ibid. Governor Bush further argued (Reply Brief for Petitioner,

p. 6):

[T}he Constitution vests the authority to “direct” the

“Manner” of appointing electors in each State in “the

Legislature thereof.” * * * Where the Constitution

spells out the agency of the State that is assigned a

particular function, fulfillment of the constitutional

design requires that such a designation be afforded

legal meaning.

Similarly, in his Emergency Application for a Stay in Bush

v. Gore, U.S. Sup. Ct., No. 00-A504, Governor Bush argued

(pp. 23, 27-28):

The Framers expressly granted the legislatures of the

several States plenary power over the appointment of

electors, providing that each State shall choose electors

4

“in such Manner as the Legislature may direct.” U.S.

CONST., art. I, 1, cl. 2. As this Court has recognized,

the Constitution “leaves it 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 [by Governor Bush}).

Indeed, the Framers’ “insertion of those words” in

Article [II—“in such Manner as the Legislature. . May

direct”—undeniably “operates 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).

* * *

In light of the Constitution’s precise distinctions

among state legislative, executive and judicial powers,

the Framer’s 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 to a particular branch of state

government, fulfillment of the constitutional design

requires that such 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 therefore the position of Governor Bush that no other

branch of government can determine the procedures for

conducting presidential elections and that, if any other branch of

government does, provide such direction, its actions are a total

nullity.

This Court, in response to Governor Bush’s argument in

Bush v. Palm Beach County Canvassing Board, No. 00-836,

5

suggested its agreement with the Governor Bush’s argument

without deciding the issue. This Court stated (slip op., pp . 4-5):

As a general rule, this Court defers to a state court’s

interpretation of a state statute. But in the case of a

law enacted by a state legislature applicable not only to

elections to state offices, but also to the selection of

Presidential electors, the legislature is 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. Il, §1, cl.2, of the United States Constitution. That

provision reads: “Each State shall appoint, in such

Manner as the Legislature thereof may direct, a

Number of Electors, equal to the whole Number or

Senators and Representatives to which the State may

be entitled in the Congress ...”

Although we did not address the same question

petitioner raises here, in McPherson v. Blackner, 146

U.S. 1, 25 (1892), we said: “[Art. II, §1, cl.2] does not

read that the people or the citizens shall appoint, but

that ‘each State shall’; and if the words ‘in such

manner as the legislature thereof may direct,’ had been

omitted, it would seem that the legislative power of

appointment could not have been successfully

questioned in the absence of any provision in the state

constitution in that regard. Hence the insertion of

those words, while operating as a limitation upon the

State in respect of any attempt to circumscribe the

legislative power, cannot be held to operate as a

limitation on that power itself.”

Despite his arguments to this Court and this Court’s

suggestion of its agreement with this argument, Governor Bush

has taken the exact opposite position in Harris v. Florida

Elections Canvassing Commission. There, Governor Bush and

the other defendants have taken the position that a state

6

regulation promulgated by the state executive branch controls

over a Statute enacted by the Florida legislature. Presumably,

Governor Bush has taken this position in Harris v. Florida

Elections Canvassing Commission because application of the

regulation at issue in that case preserves votes for him in the

Florida election. On the other hand, adherence to the position

he has taken before this Court that the state legislature has

exclusive power to determine the manner in which elections are

conducted, would provide amici curiae with a victory in their

contest to the election results. This in turn would make Vice

President Gore the winner of the Florida election.

In oral argument in the district court in Harris v. Florida

Election Canvassing Commission, counsel for plaintiffs, amici

here, emphasized at length the inconsistency between the

arguments of Governor Bush in Bush v. Palm Beach County

Canvassing Board, No. 00-836, and in Harris v. Florida

Election Canvassing Commission. Plaintiffs’ counsel

challenged counsel for Governor Bush to explain how his

position was consistent. In their hour and a half of argument,

counsel for Governor Bush did not even attempt to explain the

inconsistency. This is not surprising since there is no possible

explanation.

Before the Court of Appeals for the Eleventh Circuit in

Harris v. Florida Elections Canvassing Commission, No. 00-

_ 16423-G, the defendants continue to adhere to a position

contrary to that taken by Governor Bush before this Court. For

example, Governor Jeb Bush states: “The U.S. Congress has

comprehensive authority to regulate elections * * *.” Answer

Brief of Appellee, Governor Jeb Bush, p. 7 n.1 (December 10,

2000).

Even if the Constitution mandates that presidential elections

be conducted entirely according to the directions of the state

legislatures, amici curiae submit that it does not necessarily

7

follow that a state supreme court has no power to reconcile

conflicting state statutory provisions. This is the normal and

historic function of the courts, both state and federal. There is

no reason to believe that the Constitution intended to exclude

the interpretation of state legislation by a state’s own courts.

However, whether or not the Florida Supreme Court had the

authority to interpret the state statutes involved in Bush v. Palm

Beach County Canvassing Board, No. 00-836, or in Bush v.

Gore, No. 00-949, which is now pending before this Court, if

this Court holds that only directions of the legislatures are

applicable to presidential elections, the decision of the district

court in Harris v. Florida Election Canvassing Commission,

which holds that a state regulation promulgated by the executive

branch of the state government prevails over a state statute in

pene the validity of votes for president, is clearly

erroneous.

The statutes of the State of Florida expressly provide that

all absentee ballots must be received by 7 p.m. on election day

in order to be counted. Fla. Stat. 101.67(2) and 101.65. Section

101.67(2) provides:

All marked absent electors’ ballots to be counted must

be received by the supervisor by 7 p.m. the day of the

election. All ballots received thereafter shall be

marked with the time and date of receipt and filed in

the supervisor’s office.

Section 101.65 sets forth the instructions that must be included

with each absentee ballot. These instructions state:

* A copy of this decision is set forth in the Appendix (hereafter “App.”) to this

brief.

8

1. VERY IMPORTANT. In order to ensure thai

your absentee ballot will be counted, it should be

completed and returned as soon as possible so that it

can reach the supervisor of elections of the county in

which your precinct is located no later than 7 p.m. on

the day of the election.

On the other hand, the regulation issued by the Florida

Secretary of State, §1S-2.013, provides that absentee ballots

shall be counted if received 10 days after the election:

With respect to the presidential preference primary and

the general election, any absentee ballot cast for a

federal office by an overseas elector which is

postmarked or signed and dated no later than the date

of the Federal election shall be counted if received no

later than 10 days from the date of the Federal election

as long as such absentee ballot is otherwise proper.

Overseas electors shall be informed by the supervisors

of elections of the provisions of this rule, i.e., the ten

day extension provision for the presidential preference

primary and the general election, and the provision for

voting for the second primary.

Thus, the regulation directly conflicts with two Florida

statutory provisions. There is no possible way to reconcile the

regulation and the two statutory provisions.

If Article Il, Section 1, clause 2 of the United States

Constitution requires that presidential elections be conducted

pursuant to directions of the state legislatures, and if an

interpretation of a state statute by the state’s highest court does

not satisfy this requirement as Governor Bush has repeatedly

argued before this Court, surely issuance of a regulation by an

executive official, here the Secretary of State, does not satisfy

the Constitution. In fact, the Secretary of State had no authority

9

under state law to issue a regulation which was inconsistent with

state election statutes.

The district court in Harris v. Florida Election Canvassing

Commission nonetheless held as Governor Bush and the other

defendants argued, that the Secretary of State’s regulation was

valid because it had been approved in a consent decree by the

district court in 1984 in United States v. Florida, N.D. Fla., No.

TCA-80-1055. App. 4-11. However, if the Constitution

requires that the procedures for electing the president be

exclusively those prescribed by the legislature, a federal court

cannot determine the procedures to be used by a state. Indeed, if

a state court cannot interpret a state statute to determine such

procedures, it follows a fortiori that a federal court cannot

determine such procedures.

The district court Harris v. Florida Election Canvassing

Commission decided that the consent decree was controlling

because “[t]he detailed history of the litigation before Judge

Stafford reveals that the 1984 order, approving the Plan and the

Plan and the Administrative Rule, was intended as a ruling that

Fla. Stat. 101.67(2) was in conflict with the [Overseas Voting

Rights Act] and the [Federal Voting Assistance Act] with regard

to federal elections.” App. 8. However, the district court in

United States v. Florida did not hold anything. Instead, it

merely approved a consent decree and then later a remedial plan

which included a regulation proposed by the Secretary of State.

There is no statement in the consent order or any other order of

the district court in United States v Florida that the statute was

held to be in violation of federal law. Moreover, no such ruling

would have been possible. Neither of the two statutes on which

the consent order was based even suggests that federal law

requires that overseas absentee voters be allowed an extra 10

days after the election for their ballots to arrive. If there were

any doubt on this issue, it is dispelled by the fact that 42 other

States require that the votes of overseas voters arrive before the

polls close on election day.

10

The district court stated that “it should be recognized that,

as in all cases where a state statute is found to conflict with a

federal statute, the state statute did not of course immediately

vanish from the books.” App. 8. Here, the fact that the statute

has not disappeared from the books in the ensuing 16 years

demonstrates that the State of Florida, at the least, did not regard

the statute as having been held in violation of federal law.

Indeed, the statute has been reenacted every two years by the

Florida legislature.”

The regulation was adopted in 1984 to alleviate a problem

caused by Florida’s holding of a first and second primary in the

fall before the general election. This had resulted in leaving too

little time after the second primary to allow ballots to be mailed

to overseas voters and to be returned by them by election day.

The consent decree in United States v. Florida stated that 35

days were needed, in total, for these purposes. Subsequent to

the adoption of the regulation in 1984, the Florida Legislature

remedied the situation giving rise to United States v. Florida. It

adopted legislation, Fla. Stat. 101.62, which provides for 45

days so that ballots can be provided to and returned by overseas

voters in time for their ballots to be received by 7:00 p.m. on

election day as required by Fla. Stat. 101.67(2) and 101.65.

Thus, if the Florida statutes were ever invalid, they have been

cured and the regulation promulgated to correct any prior

problem has in effect been voided by a subsequent legislative

action.

* Florida Attommey General Robert Butterworth represented to the United

States Supreme Court that, “Every two years, the Florida Legislature reenacts

its entire set of statutes, renewing and readopting all Flonda statutory law -

including the state’s election laws. Sections 11.2421 and 11.2422.” Brief of

Respondent Butterworth in the Supreme Court for the United States (Case

No. 00-836), p. 19.

11

CONCLUSION

For the foregoing reasons, we urge this Court to be attentive

to the fact that its decision in this case will affect other pending

litigation concerning the outcome of the Florida Presidential

Election. We also urge this Court to be aware that Governor

Bush has taken contrary positions on the main issue before this

Court depending on the affect it will have on the outcome of the

election.

Respectfully submitted,

Bruce J. Terris

Counsel of Record

Carolyn Smith Pravlik

Kathleen L. Millian

Roger J. Bernstein

Counsel for Amici Curiae

December 14, 2000

APPENDIX

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

Robert Harris, et al.

Vs CASE NO. 4:00cv453

Commussion, et al.

JUDGMENT

Plainuffs are not entitled to relief under Fla. Stat. 102.168 or any

other provision of state or federal law. Judgment is entered for

the defendants. All motions not expressly ruled on in this order

are severally denied as moot. Due to the time constraints

involved in this case, the plaintiffs may file a notice of appeal via

facsimile. However, plaintiffs are directed to send the filing fee

and to meet the other procedural requirements forthwith.

ROBERT A. MOSSING, CLERK

December 9, 2000 /s/

DATE Deputy Clerk: Blair Patton

2a

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

Steven Medina, et al

Vs CASE NO. 4:00cv459

Florida Election Canvassing

Commission, et al.

JUDGMENT

Plaintiffs are not entitled to relief under Fla. Stat. 102.168 or any

other provision of state or federal law. Judgment is entered for

the defendants. All motions not expressly ruled on in this order

are severally denied as moot. Due to the time constraints

involved in this case, the plaintiffs may file a notice of appeal via

facsimile. However, plaintiffs are directed to send the filing fee

and to meet the other procedural requirements forthwith.

ROBERT A. MOSSING, CLERK

December 9, 2000 _/s/

DATE Deputy Clerk: Blair Patton

3a

IN THE UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

ROBERT HARRIS, et al.,

Plainuffs.

vs. CASE NO. 4:00cv453

FLORIDA ELECTIONS CANVASSING

COMMISSION, et al.,

Defendants.

STEVEN MEDINA, et al.,

Plainuffs,

Vs. CASE NO. 4:00cv459

FLORIDA ELECTIONS CANVASSING

COMMISSION, et al.,

Defendants.

ORDER

The plainuffs in these cases originally brought suit in

Florida state circuit courts challenging the counting of overseas

absentee ballots received after 7 p.m. on election day. The

plainuffs in the case eventually styled 4:00cv453 originally based

their complaint on alleged violations of various provisions of state

and federal law. The plaintiffs in that case then filed an amended

4a

complaint which referred only to alleged violations of state law.

After the amended complaint was filed, defendant Governor Jeb

Bush filed a Notice of Removal of this case to federal court.’ Te

Court directed the parties in the case eventually styled 4:00cv453

to brief the issues of removal and the parties filed various

memoranda, with the plaintiffs styling theirs as a motion to

remand. The Court scheduled a hearing on the removal issue

and also on the merits if removal were found to be appropriate.

The parties then filed various memoranda motions to dismiss

and motions for summary judgment addressing the merits of this

case.

When the removal hearing was held, the Court was made

aware of the pendency of the case eventually styled as 4:00cv459

in a Florida state circuit court, and was informed by the

defendants, who were essentially the same in both cases, that the

4:00cv459 case would also be removed and that a motion to

transfer the case to this Court would be made under the related

case doctrine. The Court then held the hearing on removal

issues regarding 4:00cv453, after which the Court found that

removal was proper.’ The Court then directed that a hearing on

the merits would be held the following day, in part to allow the

removal and transfer procedures in what eventually became case

4:00cv459 to take place.

The following day, before the hearing on the merits, the

defendants in the case now styled 4:00cv459 indicated to the

Court that a notice of removal and a motion to transfer that case

to this Court pursuant to the related case doctrine had in fact

been filed. The Court thus gave Mr. Terris, attorney for the

plaintiffs in the case now styled as 4:00cv459, an opportunity to

argue for remand. The Court then denied his motion for

remand and granted the motion to transfer the case to this Court

under the related case doctrine. Argument was then heard on the

merits on both cases, and thus these cases are ready for

adjudication.

Sa

The plainuffs in both cases characterize their causes as

arising under Florida's Election Contest Statute, Section 102.168,

Fla. Stat. (2000). The plaintiffs claim, and the parties stipulated,

that 2,411 absentee ballots from overseas electors (hereinafter

referred to as “overseas absentee ballots") were received after

election day and were inci:ded in the final certificate of election

results by the Florida Elections Canvassing Commission. The

plainuffs claim that this violates Section 101.67(2) Fla. Stat.

(2000), which states:

All marked absent electors’ ballots to be counted

must be received by the supervisor by 7 p.m. the

day of the election. All ballots received thereafter

shall be marked with the time and date of receipt

and filed in the supervisor's office.

Because this statute uses mandatory language like "must"

and "shall", the plaintiffs urge that any absent electors’ ballots,

including overseas absentee ballots, must have been received by 7

p.m. on November 7, 2000, in order to be legally included in the

election results.

The parties stipulated that 1,575 of the overseas absentee

votes received after November 7th went for Bush/Cheney and

836 votes went for Gore/Lieberman. Thus, the overseas

absentee votes received after November 7th resulted } in a net gain

to Bush/Cheney of 739 votes.

Additionally, the parties agreed that the certified

difference between the two candidates in the state as a whole was

537 votes, in favor of Bush/Cheney. Thus, if all the overseas

absentee votes received after November 7th were excluded, the

result would be that Gore/Lieberman would have an advantage

over Bush/Cheney of 202 votes (not considering, of course, the

outcomes of the myriad other lawsuit pending around the state

and federal systems).

6a

Based on the above, the plaintiffs conclude that including

the overseas absentee ballots received after election day in the

final certification totals constituted "[rleceipt of a number of

illegal votes ... sufficient to change or place in doubt the result of

the election” under §102.168(3)(c) Fla. Stat. (2000). Section

102.168 allows any unsuccessful candidate or any elector

qualified to vote to contest, in the circuit court, the certification of

election of any person to office. Section 102.168(7) entitles the

contestant to "an immediate hearing” and subsection (8) states:

The circuit judge to whom the contest is

presented may fashion such orders as he or she

deems necessary to ensure that each allegation in

the complaint is investigated, examined, or

checked, to prevent or correct any alleged wrong,

and to provide any relief appropriate under such

circumstances.

Based on this section of the Florida Statutes, the plainuffs

sought an order including the following relief:

A.

declaring that all votes that the defendants

received and counted after November 7, 2000 at

7 p. m. were illegally counted;

ordering that said illegally counted votes be

subtracted from the certified total for each

candidate in the Presidential and _ Vice-

Presidential election;

ordering that a new certification as to the votes

case by electors in Florida for the nominees for

President and Vice-President, without any illegally

case absentee ballots, be made by defendant

Harris; and

Ta

D. ordering the defendant Jeb Bush, as Governor of

the State of Florida, to transmit to the President

of the United States Senate a corrected certificate

of ascertainment as to the electors selected by the

State of Florida in the Presidential and Vice-

Presidential elections on November 7, 2000.

The defendants responded by arguing that the Court

should not apply a hyper-technical application of the deadline in

the statute but must consider the effect of the earlier litigation in

United States v. Florida, No. TCA-80-1055 (N.D. Fla. 1982), the

consent decrees which were entered in the case, and of the

Florida Administrative Code Rule 1S-2.013(7) which was

promulgated as a result of the litigation. Because this earlier

liugation is crucial to the present case, a detailed discussion of the

tense interplay between the United States, the district court and

the legislature of Florida that was involved in that case is

necessary.

In 1980, the Attorney General of the United States sued

the State of Florida to enforce the provisions of the Overseas

Citizens Voting Rights Act (OCVRA), 42 U.S.C. §§ 1973dd, et

seq. and the Federal Voting Assistance Act (FVAA), 42 U.S.C.

§§ 1973cc(b).’ Florida was represented by its Secretary of State,

the Chief Elections Officer in the State.‘ The OCVRA guarantees

that citizens outside the United States have the right to register

and vote absentee in federal elections in the state where they were

last domiciled so long as they meet certain minimum

requirements. The FVAA provides, among other things, that

members of the Armed Forces and the Merchant Marine located

abroad, and who are otherwise qualified to vote, have the right to

vote in the state of their voting residence.

The complaint in the 1980 case alleged that because of

the late scheduling of primary elections in Florida in 1980, and

the fact that the counties were sending out absentee ballots only

8a

after the conclusion of the primaries, most counties were not

sending out the absentee ballots until at most 20 days before the

election and in some cases not until only several days before the

election. The complaint concluded that this lateness threatened

to deprive these voters of their right to vote by making it

impossible for them to mail in their overseas absentee ballots in

time to meet the 7 p.m. deadline in Fla. Stat. §101.67(2).

In 1980, Judge Stafford entered a Temporary Restraining

Order, recognizing the late mailing out of the ballots and

directing that overseas absentee ballots for the federal elections of

November 6, 1980 should be received and counted if they were

received within 10 days of election day.

Later in the case, as the 1982 election loomed near, the

State of Florida, representing by the Secretary of State,’ reached

an agreement with the United States, represented by the United

States Attorney General, and entered into a consent decree

covering the 1982 election. In that consent decree, the State of

Florida agreed (1) to accept, for the November 2, 1982 federal

elections, overseas absentee ballots received until 5 p.m.

November 12, 1982; (2) to inform overseas absentee voters of the

ten-day extension; and (3) to mail out the absentee ballots at least

35 days prior to the election.

The 1982 consent decree also addressed a method of

achieving a lasting solution to this problem for future elections. It

required the state to submit, within 60 days after the close of the

1983 regular session of the Florida Legislature, a plan of

compliance which “shall effect such measures as are necessary

and appropriate to permit American citizens located abroad a

reasonable opportunity to return their ballots for federal

primary... and general elections prior to the deadline for receipt

of ballots.” The consent decree also noted that

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The time period provided, within which the Plan

shall be submitted to the Court, will permit the

Florida Legislature to study and act on this matter.

However, if the Florida Legislature does not act,

a Plan of Compliance nevertheless shall be

submitted by the date specified above.

After submission of the Plan of Compliance, plaintiff United

States of America shall be given a reasonable opportunity to

study and comment on the Plan. The Court thereupon may

determine that the Plan adequately resolves the voting problems

that are the subject of this litigation or may order such additionai

relief it determines is necessary and appropriate.

The 1983 regular session of the Florida Legislature met

and passed a measure responding to the Court’s order.

According to a series of memoranda from Sylvia Alberdi, the

Staff Analyst Director for the State Senate legislative committee

that dealt with this issue (Defts. Exh. H), the Florida Legislature

considered - and rejected - the 35-day deadline proposed by the

district court, finding that the 35-day deadline would “place the

first primary in July when a large majority of Florida citizens are

away on vacation”, thus “disenfranchis[ing] many more voters

than the few overseas who may not return their ballots in time to

be counted.” Instead, the Florida Legislature passed a bill which

set an earlier qualifying period for federal candidates, shortened

the schedule between first and second primaries and the general

election, and required that absentee ballots be mailed 30 days

(as opposed to 35 days) before the general election. The

memoranda at Defts. Exh. H did not indicate that it was the

Legislature's desire to have a 10-day extension to the ballot

receipt deadline. Instead, the memorandum characterized the

10-day extension for the 1982 election as merely "an interim

solution."

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After the Legislature met and failed to impose the 35-day

deadline, for mailing out absentee ballots, the United States

complained that the Plan did not meet the requirements of the

Court's order. In February 1984, the Court issued a show cause

order, directing the defendant to show cause why it submitted a

Plan that did not meet the requirements of the consent decree. A

hearing was held in March of 1984.

It was at this point that the memoranda at Exh. H were

written, especially the one written to Howard Walton. That

memorandum revealed the degree to which the state legislature

had considered passing the requirements in the consent decree

and revealed the tension between the legislature and the United

States on these issues. For example, the memorandum indicated

that the committee which considered this issue felt that the bill

was "a good faith effort on the part of the State of Florida to

comply with the Consent Decree" and that the "matter was

discussed at length in committee." The memorandum concluded

by highlighting the tension which existed between the United

States and the state legislature: “Chapter 83-251 should at a

minimum be allowed to stay_in place for the 1984 elections to

determine the effect of the changes. It does not seem equitable

that the Justice Department did not take into consideration all of

the efforts of the Legislature to facilitate voting procedure for

overseas voters.”

Despite these objections from the state legislature, the

Court entered an order on June 15, 1984, essentially finding that

the attempt by the state legislature to remedy the violations of

the OCVRA and the FVAA was insufficient and requiring the

State to submit a revised Plan which satisfied the consent decree

entered in 1982. This Plan included what would eventually be

called Florida Administrative Code Rule 1C-7.13, and which

would eventually be renumbered as Florida Administrative

Code §1S-2.013. In direct response to the direction of the

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Court, the revised Plan and eventually §1S-2.013 required the

35-day advance mailing of absentee ballots and required the 10-

day extension in the receipt of overseas absentee ballots in

federal elections. The provisions of that rule have been

followed by Florida since 1984 and were followed in the 2000

election.

The detailed history of the litigation before Judge

Stafford reveals that the 1984 order, approving the Plan and the

Administrative Rule, was intended as a ruling that Fla. Stat.

101.67(2) was in conflict with the OCVRA and the FVAA with

regard to federal elections. Thus, that order should be read to

invalidate the statute to the extent it disagreed with the order.

But, it should be recognized that, as in all cases where a state

Statute is found to conflict with a federal statute, the state statute

did not, of course, immediately vanish from the books. Instead

the statute must be read in conjunction with the judicial

interpretation of it.

In the typical situation, a citizen must be aware of the

relevant court authority, look it up in case books, and read it in

conjunction with the statute to determine the state of the law. In

the 1984 order, however, Judge Stafford went one step further

toward clarity and accessibility. Rather than merely putting the

35-day deadline and other requirements in an order which would

reside in a law book where hopefully election officials would

know to look, Judge Stafford opted for a more obviously

accessible solution. He directed that the required provisions be

put into the Administrative Code, where election officials and

citizens will naturally refer to determine the procedures for

voting.

In short, Judge Stafford ordered that the state statute

would run afoul of two federal laws, the OCVRA and the

FVAA, unless the administrative rule were engrafted onto the

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statute. Thus, the Administrative Rule was not, as the plaintiffs

characterized it, the product of a rebellious state executive

branch flouting the authority of the state legislature. Instead, it

was the product of the state executive branch, the authorized

representative of the state in a lawsuit against the state,°

enacting a measure to bring the state into compliance with a

federally ordered mandate in a situation where the state

legislature refused to do so.

Thus, to the extent that Fla. Stat. §101.67(2) conflicts

with administrative rule, §1S-2.013, it is the administrative rule

which must win the day. This is the opposite of the traditional

interplay between the administrative code and the state statutes,

but is in recognition of the fact that the administrative code

mechanism was merely the expression of a federal court

detailing, in an easily accessible way, the manner in which a

state must remedy its statute's conflict with federal law.

The fact that this rule has been in effect, without

controversy or attempt by the legislature to overrule it, is a

recognition by the legislature that they were subject to the

Court's authority as expressed through the administrative rule.

The legislature attempted to convince the Court to take another

route, including a 30-day deadline, but the Court rejected their

proposal. The lack of legislative challenge to the administrative

rule reveals that the legislature itself understood that the rule

was part and parcel of the Court's order.

The lack of challenge also reveals a recognition that the

administrative code provision was properly enacted by the state

executive branch to allow the state to comply with federal law

and thus that the Rule should not be read to be in conflict with

the statute but instead to be engrafted onto it, to allow the entire

voting procedural scheme to comply with federal law. In other

words, there simply is no conflict here — giving effect to the rule

OO ae ae

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is actually giving effect to the statute, for they are parts of the

same whole and, together, represent the end product of a

federally ordered mandate.

In light of the above discussion, several arguments of the

plaintiffs melt away. First, as alluded to above, the plaintiffs

seek to have the Court consider the Administrative Rule and §

101.67(2) without regard to the context of how they came about.

Thus, they argue that the statute and the administrative

provision conflict, and that the administrative provision must

yield. As discussed above, the administrative rule should be

considered the equivalent of a federal court order detailing how

a State statute conflicts with a federal statute and setting out

what must be done about it. Thus, it is the statute which must

yield when federal elections are involved.

Next, the plaintiffs argue that the consent decree is

merely an agreement between the executive branch of the State

and the United States Justice Department which cannot bind the

people of Florida or the legislature. This interpretation fails for

two reasons. First, when a state is sued with regard to its

election laws, the proper state representative is the chief

elections officer. That representative has the authority to bind

the state as a whole, and not merely the executive branch.

Second, the history of the litigation before Judge Stafford shows

that the state legislature was not merely standing off to the side,

but that it recognized its duty to attempt to participate in

fashioning a remedy and was fully involved in attempting to

enact statutes to satisfy the federal decree.

The plaintiffs also turn to the United States Constitution

and federal statutes to find a basis for invalidating the 10-day

extension. First the plaintiffs cite Article II, § 1, clause 3, which

States "The Congress may determine the Time of chusing

Electors, and the Day on which they shall give their Votes;

l4a

which Day shall be the same throughout the United States." As

an initial matter, the Day that "shall be the same throughout the

United States" is the Day that the already-chosen Electors give

their votes, not the "Time of chusing" them. Thus, this clause,

standing alone does not require that individual voters all choose

the Electors on the same day. However, the clause does allow

Congress to set the "Time for chusing" the Electors and

Congress has done so. Title 3 U.S.C. § | states that "the

electors of President and Vice President shall be appointed, in

each State, on the Tuesday next after the first Monday in

November, in every fourth year succeeding every election of a

President and Vice President."

The plaintiffs apparently urge that this means that every

vote must be made by a voter and counted by election officials

by midnight on that day. As we know from this election, while

it is possible for everyone to vote on election day, it is highly

unlikely that every precinct will be able to guarantee that its

votes would be counted by midnight on election day. This has

been the case for years, yet votes are not routinely being thrown

out because they could not be counted on election day.

The Court notes that Judge Stafford's orders and the

Administrative Rule were careful to require that the votes to be

counted be mailed or signed by election day. In other words,

overseas absentee voters, like all the rest of the voters, cast their

votes on election day. The only difference is when those votes

are counted. Thus, this case comes down to having very little

difference from the typical voting and vote-counting scenario.

Routinely, in every election, hundreds of thousands of votes are

cast on election day but are not counted until the next day or

beyond.

The federal government has surely been aware of this

practice, and has surely been aware of the eight states around the

1Sa

country which allow post-election-day acceptance of absentee

ballots. However, no state has been sued by the federal

government for such practices, which lends further support to

the notion that Congress did not intend 3 U.S.C. § 1 to impose

irrational scheduling rules on state and local canvassing

officials, and certainly did not intend to disenfranchise voters

whose only reason for not being able to have their ballots arrive

by the close of election day is that they were serving their

country Overseas.

For the above reasons, it is hereby

ORDERED AND ADJUDGED:

Plaintiffs are not entitled to relief under Fla.

Stat. § 102.168 or any other provision

of state or federal law. Judgment shall be

entered for the defendants.

All motions not expressly ruled on in this

order are severally denied as moot.

Due to the time constraints involved in this

case, the plaintiffs may file a notice of appeal

via facsimile. However, plaintiffs are directed

to send the filing fee and to meet the other

procedural requirements forthwith.

DONE AND ORDERED this_9th_ day of December, 2000.

Ls/

MAURICE M. PAUL, SENIOR DISTRICT JUDGE

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l. The original notice of removal in 4:00cv453 did not

indicate that all defendants consented to the removal. However,

the defendants quickly filed a separate notice of consent to

removal which was signed by all defendants. The Court notes

that notice and consent requirements have been held to be

procedural rather than jurisdictional requirements. Due to the

necessarily rushed nature of this proceeding, and the fact that

consent to removal was quickly obtained, the Court excuses the

slight procedural error of a lack of uniform consent to removal

in the original notice.

2. As noted above, the first issue facing the Court involved

the propriety of removing this case to federal court. Generally,

the inquiry whether federal question jurisdiction exists under28

U.S.C. § 1331 is guided by the well-pleaded complaint rule,

which states that ‘federal jurisdiction exists only when a federal

question is presented on the plaintiff's properly pleaded

complaint.’ Caterpillar Inc. v. Williams, 482 U. S. 386, 392, 107

S. Ct. 2425, 96 L. Ed.2d 318 (1987)). Since a defendant may

remove a case only if the claim could have been brought in

federal court, 28 U.S.C. § 1441(b), the question for removal

jurisdiction must also generally be determined by reference to

the 'well-pleaded complaint.’ Merrell Dow Pharmaceuticals,

Inc. v. Thompson, 478 U.S. 804, 808, 106 S.Ct. 3229, 92 L.

Ed.2d 650 (1986). Moreover, if the federal issue arises only as a

federal defense and does not appear on the face of a well-

pleaded complaint, it as a general rule does not authorize

removal to federal court. Metropolitan Life Ins. Co. v. Taylor,

481 U.S. 58, 63, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987)).

The Court finds, however, that the plaintiffs in this case

have artfully pled their case to avoid the obviously

federal character of the issues they claim. Further, the

Court finds that the plaintiffs’ “right to relief necessarily

depends on resolution of a substantial question of

—-——- ——

17a

federal law” Franchise Tax Bd. of Cal. v. Construction

Vacati 463 US. 1,

13, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). The

plaintiffs’ purported state law complaint, on its face,

obviously seeks to overturn a prior federal ruling which

directly covered the issues presented in the purported

State law complaint.

Additionally, this case involves the deprivation of what

the United States Supreme Court calls "a fundmental political

right, because preservative of all rights". Yick Wo v. Hopkins,

118 U.S. 356 (1886); see also Reynolds v. Sims, 377 U.S. 533

(1964) ("Undeniably, the Constitution of the United States

protects the rights of all qualified citizens to vote, in state as

well as in federal elections."); Ex parte Yarbrough, 110 U.S. 651

(1884). Most recently, in Vv

Canvassing Bd., 121 S.Ct. 471 (2000), the United States

Supreme Court implicitly adopted the view that this overriding

concern justifies a federal court reviewing state election

procedures. In its order vacating and remanding the opinion of

the Florida Supreme Court, the United States Supreme Court

declined to defer to the state court's interpretation of the state's

own law because “the law enacted by a state legislature was

applicable not only to elections for state offices, but also to the

selection of Presidential electors." Our case obviously involves

the same issues. For all the above reasons, this Court finds that

removal of this case was appropriate.

3. For a thorough and well written history of the-OCVRA

and the FVAA refer to the order entered December 8, 2000 by

Judge Collier in the case of George W. Bush, et al. v.

Hillsborough County Canvassing Bd., et al., 3:00cv533 (Dec. 8,

2000). That history is hereby adopted and incorporated herein

by reference.

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4. Under Fla. Stat. § 97.012, the Secretary of State is

dubbed the chief elections officer, and has the responsibility to

“obtain and maintain uniformity in the application, operation,

and interpretation of the registration laws.” See also Consent

Decree in United States v. Florida, TCA-80-1055 (entered April

2, 1982) 4 4. The Secretary of State has the authority to bind the

State of Florida when the Secretary is the legal representative of

the State in a legal proceeding. The Florida Supreme Court in

State ex rel. Landis v. Thompson 163 So. 270 (Fla. 1935),

recognized the authority of the Secretary to represent and bind

the State over 6 decades ago:

Furthermore, where the validity of the

submission of a proposed joint resolution of

three-fifths of each House of the Legislature as a

proposed constitutional amendment is duly

litigated by a citizen prior to its being published

and voted on, the effect of a judicial decision

holding the submission to be valid, and the

pending publication of the amendment to be in

conformity to the organic law, and refusing to

enjoin it, becomes binding on the state which is

represented in such litigation by its secretary of

state. The state being bound by such judicial

decision, it consequently becomes binding on all

who claim under the state, as does the

respondent in this case, and this is so even

though respondent was not a direct party to such

litigation, nor did he actually participate in the

same. Respondent, in common with plaintiff in

that suit, was privileged to intervene in such

litigation. Such litigation, in its essence,

contemplated a judicial decree declaratory of the

validity vel non of what was being proposed as

an amendment to the Constitution. As suchit ~

19a

was required to be considered by the court with a

view to settling in advance, not only all

objections that were therein being urged, but all

valid objections that might have been urged...

Id. at 277-78.

5. See fn 4, supra.

6. See fn 4, supra.