No. 00-836 IN THE Supreme Court of the United States GEORGE W. BUSH, Petitioner, v. PALM BEACH COUNTY CANVASSING BOARD, et al., Respondents. On Writ Of Certiorari To The Supreme Court Of Florida BRIEF FOR PETITIONER MICHAEL A. CARVIN THEODORE B. OLSON COOPER, CARVIN & Counsel of Record ROSENTHAL, P.L.L.C. TERENCE P. ROSS 1500 K Street, N.W. DOUGLAS R. COX Suite 200 THOMAS G. HUNGAR Washington, D.C. 20005 MARK A. PERRY (202) 220-9600 GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. BARRY RICHARD Washington, D.C. 20036 GREENBERG TRAURIG, P.A. (202) 955-8500 101 East College Avenue Post Office Drawer 1838 BENJAMIN L. GINSBERG Tallahassee, FL 32302 PATTON BOGGS LLP (850) 222-6891 2550 M Street, N.W. Washington, D.C. 20037 (202) 4 57-6000 [Additional counsel listed on inside front cover] Counsel for Petitioner GEORGE J. TERWILLIGER III JOHN F. MANNING TIMOTHY E. FLANIGAN 435 W. 116th Street MARCOS D. JIMÉNEZ New York, N.Y. 10027 WHITE & CASE LLP First Union Financial Center WILLIAM K. KELLEY 200 South Biscayne Blvd. Notre Dame Law School Miami, Florida 33131 Notre Dame, Indiana 46556 (305) 371-2700 BRADFORD R. CLARK 2000 H Street, N.W. Washington, D.C. 20052 i QUESTIONS PRESENTED 1. Whether post-election judicial limitations on the discretion granted by the legislature to state executive officials to certify election results, and/or post-election judicially created standards for the determination of con- troversies concerning the appointment of presidential electors, violate the Due Process Clause or 3 U.S.C. § 5, which requires that a State resolve controversies relating to the appointment of electors under "laws enacted prior to" election day. 2. Whether the state court's decision, which cannot be reconciled with state statutes enacted before the elec- tion was held, is inconsistent with Article II, Section 1, clause 2 of the Constitution, which provides that electors shall be appointed by each State "in such Manner as the Legislature thereof may direct." 3. What would be the consequences of this Court's finding that the decision of the Supreme Court of Florida does not comply with 3 U.S.C. § 5? ii PARTIES TO THE PROCEEDING The following individuals and entities are parties to the proceeding in the court below: Governor George W. Bush, as candidate for Presi- dent; Katherine Harris, as Secretary of State, State of Florida; Katherine Harris, Bob Crawford, and Laurence C. Roberts, as members of the Florida Elections Can- vassing Commission; Matt Butler; Palm Beach County Canvassing Board; Broward County Canvassing Board; Broward County Supervisor of Elections; Robert A. Butterworth, as Attorney General, State of Florida; Flor- ida Democratic Party; and Vice President Albert Gore, Jr., as candidate for President. iii TABLE OF CONTENTS Page QUESTIONS PRESENTED ...............................................i PARTIES TO THE PROCEEDING .................................ii TABLE OF AUTHORITIES.............................................vi OPINIONS BELOW ...........................................................1 JURISDICTION ..................................................................1 CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED...................................................2 STATEMENT OF THE CASE..........................................2 I. The 2000 Presidential Election............................3 A. The Election Laws Of Florida As Of November 7, 2000..........................................3 B. The Presidential Election In Florida And The Tabulation Of Votes ......................6 II. The Litigation At Issue .........................................8 A. The Trial Court's Decisions..........................8 B. Proceedings In The Florida Su-preme Court ................................................................9 III. Events Since The Petition Was Filed................11 SUMMARY OF ARGUMENT .......................................12 ARGUMENT .....................................................................15 I. The Judgment Of The Florida Supreme Court Should Be Vacated Because It Does Not Comply With 3 U.S.C. § 5................17 iv A. State Court Determinations Regard- ing Controversies Over The Ap- pointment Of Presidential Electors Lack Conclusive Effect Unless They Implement Legal Rules Enacted Before The Election .....................................17 B. The Decision Below Announces New Rules Of Law And Timetables To Govern Controversies And Con- tests Concerning Florida's Appoint- ment Of Presidential Electors.....................19 C. The Florida Supreme Court's Deci- sion Also Upsets The Policy Choice Made By Congress In 3 U.S.C. § 5 ............27 D. Because The Judgment Below Does Not Comply With 3 U.S.C. § 5, It Is Not Binding On Congress Or The Elections Canvassing Commission............29 II. The Florida Supreme Court's Decision Violates Article II Of The Constitution Of The United States...........................................36 A. The Framers Vested The Authority To Determine The Manner For The Appointment Of Presidential Elec- tors In The State Legislatures .....................37 B. In The Absence Of Express Legisla- tive Direction, The State Executive And Judicial Branches Are Constitutionally Prohibited From Engrafting Material Changes Onto The Manner Of Appointing Presi- dential Electors.............................................40 v C. The Florida Supreme Court Has Not Been Granted Authority To Determine The Manner Of Appoint- ing Presidential Electors..............................43 D. As A Result Of Its Unconstitutional Arrogation Of Power, The Florida Supreme Court's Decision Is A Nul- lity .................................................................48 CONCLUSION..................................................................50 vi TABLE OF AUTHORITIES CASES Page(s) Anderson v. Celebrezze, 460 U.S. 780 (1983) ............................................................................16 Beckstrom v. Volusia County Canvassing Bd., 707 So. 2d 720, 725 (Fla. 1998)..................32, 33 Black v. Cutter Labs., 351 U.S. 292 (1956) .....................2 Boardman v. Esteva, 323 So. 2d 259 (Fla. 1975)..............................................................................32 Bolden v. Potter, 452 So. 2d 564 (Fla. 1984)...................6 Buckley v. Valeo, 424 U.S. 1 (1976)................................17 Burroughs v. United States, 290 U.S. 534 (1934) ............................................................................15 California v. Superior Court of California, 482 U.S. 400 (1987) .......................................32, 49, 50 Carmell v. Texas, 120 S. Ct. 1620 (2000) ......................20 Caspari v. Bohlen, 510 U.S. 383 (1994)..................20, 21 Chapman v. Goodnow's Adm'r, 123 U.S. 540 (1887).......................................................................2 Chappell v. Martinez, 536 So. 2d 1007 (Fla. 1988).......................................................................22, 23 Clinton v. City of New York, 524 U.S. 417 (1998) ............................................................................36 Cousins v. Wigoda, 419 U.S. 477 (1975)........................16 Ex Parte Siebold, 100 U.S. 371 (1879)...........................49 vii Ex Parte Young, 209 U.S. 123 (1908).............................49 Foster v. Love, 522 U.S. 67 (1997) .................................36 Gunn v. Barry, 82 U.S. 610 (1872) .................................49 Hawke v. Smith, 253 U.S. 221 (1920).............................41 Lindsey v. Washington, 301 U.S. 397 (1937).................20 Market Street Ry. Co. v. Railroad Comm'n, 324 U.S. 548 (1945) ......................................................2 Martin v. Hunter's Lessee, 14 U.S. 304 (1816) ............................................................................44 McClendon v. Slater, 554 P.2d 774 (Okla. 1976), cert. denied, 429 U.S. 1096 (1977) .....................................................................40, 46 McPherson v. Blacker, 146 U.S. 1 (1892)..............passim Milliken v. Bradley, 418 U.S. 717 (1974).......................49 New Mexico ex re. Ortiz v. Read, 524 U.S. 151 (1998).....................................................................32 Parsons v. Ryan, 60 P.2d 910 (Kan. 1936).....................46 Ray v. Blair, 343 U.S. 214 (1952) ...................................38 Reynoldsville Casket Co. v. Hyde, 514 U.S. 749 (1996).....................................................................49 Roe v. Alabama, 43 F.3d 574 (11th Cir. 1995)..............................................................................28 Russello v. United States, 464 U.S. 16 (1984) .....................................................................42, 43 St. Martin Evangelical Lutheran Church v. South Dakota, 451 U.S. 772 (1981) ..........................44 viii State ex rel. Beeson v. Marsh, 34 N.W.2d 279 (Neb. 1948) ...........................................................40 Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998)..............................49 Street v. New York, 394 U.S. 576 (1969)..........................2 Teague v. Lane, 489 U.S. 288 (1989).......................20, 21 U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995)........................................................39, 40, 43 United States v. Brown, 381 U.S. 437 (1965)................26 United States v. Harris, 106 U.S. 629 (1883)................26 United States v. State of Florida, Civ. No.: TCA-80-1055 (N.D. Fla. Apr. 2, 1982) ......................6 Williams v. Rhodes, 393 U.S. 23 (1968).........................16 Constitution & Statutes U.S. CONST. art. I, § 2, cl. 1 .............................................37 U.S. CONST. art. I, § 2, cl. 4 .............................................42 U.S. CONST. art. I, § 3, cl. 1 .............................................37 U.S. CONST. art. I, § 4, cl. 1 .............................................42 U.S. CONST. art. I, § 5, cl. 1 .............................................36 U.S. CONST. art. I, § 8, cl. 16 ...........................................41 U.S. CONST. art. I, § 10, cl. 2 ...........................................41 U.S. CONST. art. II, § 1..................................15, 16, 34, 37 U.S. CONST. art. II, § 1, cl. 1 ............................................14 U.S. CONST. art. II, § 1, cl. 2 ..................16, 25, 34, 35, 38 U.S. CONST. art. II, § 1, cl. 4 ............................................15 ix U.S. CONST. art. IV, § 2, cl. 2 ...................................32, 42 U.S. CONST. art. IV, § 4 ....................................................42 U.S. CONST. art. V.............................................................42 U.S. CONST. art. VI, cl. 2 ..................................................42 U.S. CONST. amend. XII............................................16, 37 U.S. CONST. amend. XVII................................................37 2 U.S.C. § 7 ........................................................................36 3 U.S.C. §§ 1-15 .........................................................13, 17 3 U.S.C. § 2 .................................................................34, 35 3 U.S.C. § 5 ................................................................passim 3 U.S.C. § 6 ........................................................................30 3 U.S.C. § 7 ........................................................................25 3 U.S.C. § 15 ...............................................................20, 31 18 U.S.C. § 3182................................................................32 28 U.S.C. § 1257..................................................................1 Fla. Stat. § 102.111.............. 4, 5, 7, 10, 11, 22, 23, 24, 44 Fla. Stat. § 102.111(1)............................................4, 44, 45 Fla. Stat. § 102.112....................................................passim Fla. Stat. § 102.112(1).................................4, 5, 22, 44, 45 Fla. Stat. § 102.121............................................................43 Fla. Stat. § 102.141..............................................................4 Fla. Stat. § 102.141(4).....................................................2, 5 Fla. Stat. § 102.166(1)-(3)..................................................5 Fla. Stat. § 102.166(4)(a)-(c)..............................................5 x Fla. Stat. § 102.166(4)-(10)............................................5, 7 Fla. Stat. § 102.166(7)(a)....................................................5 Fla. Stat. § 102.166(7)(b)................................................5, 7 Fla. Stat. § 102.168....................................................... 6, 24 Fla. Stat. § 102.168(2).........................................................6 Fla. Stat. § 102.168(3)-(8)..................................................6 Fla. Stat. § 102.168(5).........................................................6 Fla. Stat. § 103.011....................................................... 6, 43 Other Authorities Act of Feb. 3, 1887, ch. 90, § 2, 24 Stat. 373.................18 18 CONG. REC. 30 (Dec. 7, 1886).............................17, 18 18 CONG. REC. 47 (Dec. 8, 1886).......................18, 19, 27 2 The Records of the Federal Convention of 1787 501 (Max Farrand, ed. 1966)............................38 BLACK'S LAW DICTIONARY 890 (7th ed. 1999)..............................................................................26 Counting the Vote; Statements on the Certification of Florida's Votes, N.Y. TIMES, Nov. 27, 2000..................................................12 David P. Currie, The Constitution in Congress (University of Chicago Press) 138 .................................................................................39 Senate Rep. 1st Sess. 43 Cong. No. 395.........................40 The Federalist, No. 68 (Alexander Hamilton) (Clinton Rossiter ed., 1961)........37, 38, 39 BRIEF FOR PETITIONER On November 7, 2000, the Nation's quadrennial presidential election was conducted throughout the United States. The apparent results of the State-by-State returns indicate that the candidate who receives the Electoral College votes of Florida will, on December 18, 2000, receive a majority of the votes of the electors ap- pointed by the various States and will thereafter become the next President of the United States. On November 21, 2000, the Supreme Court of Flor- ida issued an equitable decree altering Florida's methods and timetables for the determination of controversies re- garding the appointment of presidential electors. That decree has interjected unwarranted but serious questions concerning the selection of Florida's presidential elec- tors that threaten to undermine and cloud the outcome of the election in that State. Because that equitable decree is inconsistent with federal law and the Constitution of the United States, petitioner respectfully prays that this Court vacate the judgment below. OPINIONS BELOW The opinion of the Supreme Court of Florida (Pet. App. 1a-38a) is not yet reported. The orders of the Cir- cuit Court for the County of Leon, Florida (Pet. App. 42a-43a & 44a-50a) are not reported. JURISDICTION The judgment of the Supreme Court of Florida was entered on November 21, 2000. The petition for a writ of certiorari was filed on November 22, 2000 and granted on November 24, 2000. The jurisdiction of this Court rests upon 28 U.S.C. § 1257. The judgment below amounts to the entry of a per- manent injunction against state election officials and is therefore "final" for purposes of this Court's certiorari 2 jurisdiction. Market Street Ry. Co. v. Railroad Comm'n, 324 U.S. 548, 551 (1945). Petitioner expressly raised below the federal questions on which the Court has granted certiorari. See Pet. 9-10. The Florida Supreme Court's failure to address petitioner's federal claims, and its assertion that "[n]either party has raised as an issue on appeal the constitutionality of Florida's election laws" (Pet. App. 10a n.10), are therefore no barrier to review by this Court. Street v. New York, 394 U.S. 576, 583 (1969); Black v. Cutter Labs., 351 U.S. 292, 298 (1956). State courts cannot evade this Court's review by failing to discuss federal questions. Chapman v. Good- now's Adm'r, 123 U.S. 540, 548 (1887). CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED Pursuant to this Court's Rule 24.1(f), the pertinent constitutional and statutory provisions are reproduced in the appendix to this brief. STATEMENT OF THE CASE On Tuesday, November 7, 2000, the citizens of the several States, including Florida, cast their votes for the electors for President and Vice President of the United States. The official initial count of the ballots cast in Florida showed that the Republican Party candidates, Governor George W. Bush and Secretary Dick Cheney, received more votes than their principal opponents in the election, Democratic Party candidates Vice President Albert Gore and Senator Joseph Lieberman, subject to the counting of overseas absentee ballots. Because the margin of victory was less than one-half of one percent, however, a statewide recount commenced. See Fla. Stat. § 102.141(4). The statewide recount, and the tabulation of overseas absentee ballots on November 18, 2000, while reflecting slightly different tabulation totals, each confirmed that Governor Bush and Secretary Cheney re- ceived the most votes. 3 On November 8, 2000, the Florida Democratic Party sought additional recounts by hand in four heavily popu- lated, predominantly Democratic counties. The Florida Supreme Court thereafter issued a decree extending by twelve days the seven day statutorily imposed deadline to submit certified vote tabulations including the results of these recounts. Pursuant to that extended deadline, on November 26, the totals were again tabulated, and Gov- ernor Bush and Secretary Cheney were again determined to have received the most votes. The Florida Elections Canvassing Commission proceeded on November 26, 2000, to certify them as the victorious candidates in the statewide presidential election. Those certified results include tabulations that reflect manual recounts that were conducted solely as a result of the Florida Supreme Court decision under review here. Vice President Gore and Senator Lieberman have filed a lawsuit in Leon County Circuit Court to contest the certified election results. The Florida Supreme Court's decision, which conflicts with both federal stat- utes and the federal Constitution, will thus continue to affect, and has the theoretical potential to change, the outcome of the presidential election in Florida, and thus the Nation. Reversal by this Court would restore the legislatively crafted method for appointing electors in Florida to its status prior to November 7, would allow the completion of the proper selection of presidential electors in Florida according to the plan contemplated by the Constitution, and would aid in bringing legal fi- nality to this election. I. The 2000 Presidential Election A. The Election Laws Of Florida As Of No- vember 7, 2000 Prior to November 7, 2000, pursuant to the authority conferred on it by Article II of the Constitution and 3 U.S.C. § 5, the Florida legislature had enacted a com- prehensive and carefully interwoven statutory plan and 4 set of procedures and timetables to govern the appoint- ment of presidential electors, the conduct of elections, and the bringing and resolution of controversies and contests related thereto. On the first Tuesday after the first Monday in No- vember during a presidential election year, Florida holds an election in each of its sixty-seven counties for the purpose of selecting presidential electors. Following the election, each county's canvassing board is responsible for counting and certifying the returns and forwarding them to the Florida Department of State. See Fla. Stat. § 102.141. "[A]s soon as the official results are compiled from all counties," the statewide Elections Canvassing Commission-comprising the Governor, the Secretary of State, and the Director of the Division of Elections- is required to "certify the returns of the election and de- termine and declare who has been elected for each of- fice." Fla. Stat. § 102.111(1). Florida statutes specify a clear deadline by which counties must certify their returns to the Department of State. As the Florida Supreme Court itself put it in this case, "the deadline set forth in section 102.111(1), Flor- ida Statutes (2000), requir[es] that all county returns be certified by 5 p.m. on the seventh day after an election." Pet. App. 4a. Section 102.111 underscores the firmness and importance of this deadline by providing that "[i]f the county returns are not received by the Department of State by 5 p.m. of the seventh day following an election, all missing counties shall be ignored, and the results shown by the returns on file shall be certified." Fla. Stat. § 102.111(1) (emphasis added). Another provision of the election code, Fla. Stat. § 102.112, reiterates the requirement that county "[r]eturns must be filed by 5 p.m. on the 7th day following the . . . general election." Fla. Stat. § 102.112(1) (emphasis added). Using differ- ent terminology, § 102.112 states: "If the returns are not received by the department [of State] by the time speci- fied, such returns may be ignored and the results on file 5 at that time may be certified by department." Fla. Stat. § 102.112(1) (emphasis added). Prior to the seven-day certification deadline, Florida law provides for recount of the votes in close races when the margin of victory is less than one-half of one per- cent. See Fla. Stat. § 102.141(4). In addition to this provision, the legislature has provided that disputes over election results may be raised by submitting a "protest" to the county canvassing boards, see Fla. Stat. § 102.166(1)-(2), and/or a request for a manual recount, see Fla. Stat. § 102.166(4)-(10).1 A protest must be lodged prior to the time the county canvassing board certifies the results or within five days after midnight of the date of the election, whichever occurs later. A re- quest for a manual recount must be filed prior to the time the county canvassing board certifies the results or within 72 hours of midnight of the date of the election, whichever occurs later. As of November 7, 2000, no provision of Florida law exempted the manual recount process from the seven-day certification deadline imposed by §§ 102.111 and 102.112. Thus, under the statutory scheme in effect on the date of the election, protest and recount proce- dures had to be completed before the seven-day deadline in order to be reflected in the county canvassing board's election returns, and the statutes expressly declared that county returns not received by the Secretary of State 1 County canvassing boards are authorized, but not re- quired, to grant requests for a manual recount. See Fla. Stat. § 102.166(4)(a)-(c). If the canvassing board chooses to em- bark on a manual recount, the board "shall appoint as many counting teams of at least two electors as is necessary to manually recount the ballots," Fla. Stat. § 102.166(7)(a), and "[i]f the counting team is unable to determine a voter's intent in casting a ballot, the ballot shall be presented to the county canvassing board for it to determine the voter's intent," id. at (7)(b). 6 prior to the deadline (5:00 p.m. on November 14 in this case) "may be ignored." Fla. Stat. §§ 102.112. After certification, candidates and voters may con- test the certification of an election by filing a complaint in Leon County Circuit Court. See Fla. Stat. §§ 102.168, 102.1685. Such contests must be initiated within 10 days of the certification, see Fla. Stat. § 102.168(2). The contest process involves extensive judicial proceedings, including formal pleadings, discovery, trial, and appeals. See Fla. Stat. § 102.168(3)-(8); Bolden v. Potter, 452 So. 2d 564, 565-66 (Fla. 1984). B. The Presidential Election In Florida And The Tabulation Of Votes On November 8, 2000, the Florida Secretary of State announced that Governor Bush and Secretary Che- ney had received the most popular votes in the previous day's election by a narrow margin. Those results were not certified, however, because the slim margin of vic- tory triggered the recount provision of Florida law, and because of the need to receive and count overseas absen- tee ballots.2 On November 14, the results of the recount were announced: Governor Bush and Secretary Cheney had received the most popular votes for President and Vice President in the Florida election. The Florida Secretary of State announced her intention to proceed with certifi- cation of the results of the election upon receipt and tabulation of the overseas ballots.3 On November 17, 2 Under a federal consent decree, Florida must allow ten days from the date of the election for overseas absentee bal- lots to be received. See United States v. Florida, Civ. No. TCA-80-1055 (N.D. Fla. Apr. 2, 1982). 3 The Florida legislature has assigned the task of certifying the results of presidential elections to the Department of State. See Fla. Stat. § 103.011. County canvassing boards 7 2000, however, before the overseas ballots could be tabulated and the election results certified, the Florida Supreme Court sua sponte issued a stay order enjoining the Secretary of State and the Elections Canvassing Commission from proceeding with certification. Pet. App. 39a-40a. In the interim, respondent Florida Democratic Party had filed protests in four counties: Broward, Miami- Dade, Palm Beach, and Volusia. Respondent requested that the ballots cast in those selected counties-each heavily Democratic-be recounted by hand under the manual recount provisions of the protest section of the Florida Election Code set forth in Fla. Stat. § 102.166(4)-(10). The Florida statute governing manual recounts con- tains no standards describing how manual recounts will be conducted or guidelines concerning the means by which a voter's intent will be ascertained. The four counties thus embarked upon various paths in attempting to divine the "voter's intent." Fla. Stat. § 102.166(7)(b). Counties adopted conflicting guidelines for reviewing ballots, and changed their own guidelines and standards repeatedly throughout the recounting process. The con- fusion, bordering on chaos, that developed during these selectively focused manual recounts has been well- publicized. The manual recounts followed two me- chanical counts of punch-card ballots in three of the counties and considerable hand examination of the physical ballots. Review of punch-card ballots pro- ceeded from analysis of the degree to which punch-card initially certify their local election results and forward them to the Department of State. The Elections Canvassing Com- mission, of which the Secretary of State is a member, is then charged with certifying the overall returns of the election and declaring who has been elected to office. See Fla. Stat. § 102.111. 8 ballots had been perforated to examination for voter in- tent of indentations ("dimples") on the ballots. II. The Litigation At Issue After the Secretary of State announced her decision to certify the election results on November 14, 2000 without including the results of manual recounts submit- ted after the statutory deadline, Volusia County sued the Secretary and the Elections Canvassing Commission seeking to extend the November 14 limit on the time within which to submit county returns. Palm Beach County, the Florida Democratic Party, and Vice Presi- dent Gore intervened as plaintiffs; Governor Bush and others intervened as defendants. A. The Trial Court's Decisions On November 14, 2000, the Circuit Court for Leon County held that the Secretary had discretion to ignore returns received after the statutory deadline. The court held that "the County Canvassing Boards must certify and file what election returns they have by the statutory deadline of 5:00 p.m. of November 14, 2000, with due notification to the Secretary of State of any pending manual recount, and may thereafter file supplemental or corrective returns," and also held that "[t]he Secretary of State may ignore such late filed returns . . . by the proper exercise of discretion after consideration of all appropri- ate facts and circumstances." Pet. App. 45a. The court reasoned that, under the language of Fla. Stat. § 102.112, "[t]hat the Secretary may ignore late filed re- turns necessarily means that the Secretary does not have to ignore such returns. It is, as the Secretary acknowl- edges, within her discretion." Id. at 48a. After the trial court's order was announced, the Sec- retary of State asked counties interested in submitting returns after the deadline to provide her with written ex- planations of their reasons for doing so by 2:00 p.m. on Wednesday, November 15. J.A. 39. After receiving 9 submissions from four counties, the Secretary of State exercised her discretion and concluded that insufficient reasons had been given to justify extending the deadline to include the results of manual recounts not yet com- plete. J.A. 21-38. Vice President Gore and others then asked the trial court to issue an order directing the Secretary to waive the statutory deadline and allow late results from three counties-Broward, Miami-Dade, and Palm Beach-to be included in the final vote tally. (The Volusia County manual recount was completed and the results submitted prior to the deadline.) On November 17, 2000, the Circuit Court for Leon County issued its second decision, rejecting Vice Presi- dent Gore's request to waive the statutory deadline. Pet. App. 42a-43a. The court held that the Secretary of State had not violated its November 14 order and explained that "the Secretary has exercised her reasoned judgment to determine what relevant factors and criteria should be considered, applied them to the facts and circumstances pertinent to the individual counties involved, and made her decision." Pet. App. 43a. B. Proceedings In The Florida Supreme Court Vice President Gore and Broward and Palm Beach counties appealed from the Leon County Circuit Court's decision that the Secretary of State had not abused her discretion in declining to include in the statewide tabula- tion results from manual recounts filed after the 5:00 p.m. November 14 deadline. On Friday, November 17, 2000, without the benefit of briefing or argument, the Florida Supreme Court sua sponte enjoined the Secre- tary of State and the Elections Canvassing Commission from certifying the November 7 presidential election re- sults for the State of Florida until further order of the court. Pet. App. 39a-40a. 10 The following day, November 18, 2000, the results of the absentee balloting were announced. Governor Bush and Secretary Cheney were once again found to have received more votes than their opponents. On the evening of November 21, 2000, the Florida Supreme Court issued its opinion reversing the orders of the trial court. Pet. App. 1a-38a.4 The Florida Supreme Court held that the trial court had "erred in holding that the Secretary [of State] acted within her discretion in prematurely rejecting any amended returns that would be the result of ongoing manual recounts." Pet. App. 34a. The court determined that the language of Fla. Stat. §§ 102.111 and 102.112, which provide that county can- vassing boards "must . . . file[]" their returns by 5:00 p.m. on the seventh day following the election and that late-filed returns "may be ignored" or "shall be ignored" by the Elections Canvassing Commission did not con- trol. The Florida Supreme Court concluded that the question before it was "whether the Commission must accept a return after the seven-day deadline set forth in sections 102.111 and 102.112," Pet. App. 14a (emphasis added), and answered this question in the affirmative. The Florida Supreme Court rejected "hyper- technical reliance upon statutory provisions" in resolv- ing the controversy. Pet. App. 8a; id. at 31a ("Technical statutory requirements must not be exalted over the sub- stance of [the] right [of suffrage]."); id. at 36a ("the will of the electors supersedes any technical statutory re- quirements"). The court concluded that while it har- 4 The supreme court consolidated the appeal with an origi- nal action in which the court was asked to resolve the conflict between two executive branch opinions concerning the Palm Beach County Canvassing Board's authority to conduct a manual recount. The court ultimately dismissed the original petition, but expressly stated in its opinion that the Palm Beach board had authority to conduct the county-wide man- ual recount. Pet. App. 2a n.1, 13a. 11 bored "reluctance to rewrite the Florida Electon Code, we conclude that we must invoke the equitable powers of this Court to fashion a remedy that will allow a fair and expeditious resolution of the questions presented here." Id. at 37a-38a. On this basis, the court then an- nounced that the Secretary's discretion to ignore un- timely election returns under Fla. Stat. §§ 102.111 and 102.112, could only be exercised "if the returns are submitted so late that their inclusion will preclude a candidate from contesting the certification or preclude Florida's voters from participating fully in the federal electoral process." Pet. App. 35a. The Florida court thus announced that the Novem- ber 14 deadline for accepting county election returns was inoperative in this election and directed the Secre- tary of State and the Elections Canvassing Commission to accept manual recount returns through 5:00 p.m. on Sunday, November 26, 2000. Pet. App. 37a-38a. Moreover, the court maintained its injunction preventing the Elections Canvassing Commission from certifying any election results until that date, and directed the Commission to include in its certified election results all manual recount returns received by that date. Id. at 38a. III. Events Since The Petition Was Filed As noted above, the Florida Supreme Court's deci- sion announced a new deadline of 5:00 p.m. on Novem- ber 26, 2000, for all counties to submit amended returns, including the results of any manual recounts. Thereaf- ter, the Miami-Dade County Canvassing Board voted unanimously not to proceed with a manual recount. The manual recount was completed in Broward County. Palm Beach County did not complete its manual recount before Florida Supreme Court's November 26, 2000 5:00 p.m. deadline. On the evening of November 26, 2000, as directed by the court below, all counties with outstanding results submitted election returns to the Secretary of State. 12 Governor Bush and Secretary Cheney once again were determined to have received the most votes. That same evening, the Elections Canvassing Commission certified the results and formally declared Governor Bush the winner of Florida's 25 Electoral College votes. Upon announcing the certified results, the Secretary of State explained why certification had been delayed: It was and it remains my opinion that the appro- priate deadlines for filing certified returns in this election are those mandated by the Legislature. And it remains my opinion that the proper re- turns in this election are the returns that were certified by those deadlines. The Florida Su- preme Court, however, disagrees. The court created a new schedule for filing certifications and conducting election contests rather than im- plementing the schedule enacted by the Legisla- ture. . . . Counting the Vote; Statements on the Certification of Florida's Votes, N.Y. TIMES, Nov. 27, 2000, at A13. Vice President Gore has declared his intention to contest the election in circuit court by challenging the results certified by at least three Florida counties (Mi- ami-Dade, Nassau, and Palm Beach). That contest was filed on November 27, 2000. In that litigation, the Vice President seeks a further round of manual recounting, this time conducted by judges, and seeks to have the re- sults of those recounts included in the statewide returns. SUMMARY OF ARGUMENT 1. The Florida Supreme Court's decision, which announced a new framework and timetable for resolving controversies over the presidential election results in that State, should be vacated because it does not comply with 3 U.S.C. § 5. a. Responding to a presidential election crisis much like that unfolding in Florida during the past three 13 weeks, Congress enacted a statutory scheme to imple- ment the constitutional mechanism of the Electoral Col- lege. 3 U.S.C. §§ 1-15. One of those statutes, § 5, pro- vides that state-court resolutions of controversies regard- ing the appointment of presidential electors shall be conclusive only if they are made pursuant to "laws en- acted prior to" election day. b. The court below rejected Florida statutes and deadlines for the appointment of electors and the resolu- tion of presidential election disputes as "hyper- technical." Instead, it resorted to its "equitable powers" to prescribe new standards and deadlines, suspend man- datory enforcement mechanisms, and curtail the discre- tion conferred on the state executive by the legislature. The decision below constitutes a clear departure from the legal requirements established before election day, and announces new rules governing the resolution of election disputes. The Florida Supreme Court thus con- sciously and boldly overrode Florida's "laws enacted prior to" election day and replaced them two weeks later with laws of its own invention. c. Title 3 U.S.C. § 5 is designed to ensure that dis- putes relating to the appointment of presidential electors will be decided under laws made prior to the exigency under which they arose. It was enacted by Congress to discourage precisely what has happened in Florida this month, where the candidate who did not receive the most votes in the official tabulation is attempting to change the result by changing the rules. But the plain language of the statute provides that state courts must adhere to preexisting law if their resolution of election controversies is to be given binding effect. The court below failed to do so. d. The Florida Supreme Court's decision should be vacated as a result of its failure to comply with 3 U.S.C. § 5. The resulting consequences are two-fold. First, the executive officials in Florida would be able to discharge all of their duties, including their duties imposed by fed- 14 eral law, under the rules in place on election day. Sec- ond, Congress would be able to give conclusive effect to the official certification of the Elections Canvassing Commission regarding the appointment of Florida's electors made pursuant to the carefully crafted scheme put in place before the election to apply equally to all voters and candidates. Vacating the decision below would thus allow the Electoral College process to reach a lawful, final, and conclusive resolution of the presi- dential election. 2. The Florida Supreme Court, by arrogating to it- self the authority to make new rules applicable to this election contest, also violated Article II of the Constitu- tion, which invests the authority to regulate the manner of appointing presidential electors in state legislatures. a. The Constitution provides that "[e]ach State shall appoint [electors] in such Manner as the Legislature thereof may direct." U.S. CONST. art. II, § 1, cl. 1. His- tory and precedent establish that this power granted to state legislatures is both plenary and exclusive. b. Article II establishes a federally mandated sepa- ration of powers between the state legislature and other branches of state government in the context of choosing presidential electors. 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. Any delegation of this constitutional au- thority must be both clear and express. c. The Florida legislature has not granted to the state supreme court the authority to determine the man- ner of choosing electors. On the contrary, the legislature has established a complex and detailed framework for presidential elections, and has granted the executive branch the authority to exercise limited discretion and to certify the results of such elections in accordance with statutorily imposed deadlines. The state court reached 15 out and prohibited the executive branch officials from performing their duties, and announced new deadlines to supplant those enacted by the legislature. The court thus arrogated to itself the power to determine the manner in which Florida's electors are appointed, authority that the Constitution reposes only in the state legislature. d. The proper remedy for the Florida Supreme Court's violation of Article II is nullification of its at- tempt to interfere in the manner in which the State's electors are appointed. The court below had no author- ity under the federal Constitution to announce new rules for this presidential election. Its attempt at judicial leg- islation was unconstitutional, and its actions patently ul- tra vires, and the court's decision is thus void. As a re- sult, the state executive branch officials should be freed by this Court to carry out their duties without the uncon- stitutional interference of the state supreme court. ARGUMENT Presidential electors "exercise federal functions un- der," and discharge duties pursuant to, "authority con- ferred by" the Constitution. Burroughs v. United States, 290 U.S. 534, 545 (1934). The Constitution reposes in Congress authority to "determine the Time of chusing the Electors, and the Day on which they shall give their Votes." U.S. CONST. art. II, § 1, cl. 4. Congressional authority over electors is, however, much broader. The President exercises the whole of the Nation's executive power. U.S. CONST. art. II, § 1. "The importance of his election and the vital character of its relationship to and effect upon the welfare and safety of the whole people cannot be too strongly stated." Burroughs, 290 U.S. at 545. Among the powers vested in Congress is the power to "protect the election of the President and Vice Presi- dent from corruption." Id. at 547. A fortiori, Congress also possesses ample authority to prevent chaos, turmoil, and violations of due process in presidential elections. 16 The Constitution allocates to each of the States the authority to "appoint, in such Manner as the Legislature thereof may direct, a Number of Electors," U.S. CONST. art. II, § 1, cl. 2, and the electors are, in turn, empowered to meet and to vote by ballot for the election of the President. U.S. CONST. amend. XII. Article II, § 1 does not, however, shield state election laws from other con- stitutional requirements. See Williams v. Rhodes, 393 U.S. 23, 29 (1968) ("Obv