# Amicus Curiae Brief — Bush v. Gore

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0437%3A12

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2000
- **Citation:** 531 U.S. 98

## Text

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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
TTT TD la

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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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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0437%3A12. Public record. Not legal advice.