No. 00-949 IN THE Supreme Court of the United States _______________ GEORGE W. BUSH AND RICHARD CHENEY, Petitioners, v. ALBERT GORE, JR., ET AL., Respondents. _______________ ON WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA _______________ BRIEF OF RESPONDENT ALBERT GORE, JR. _______________ David Boies Laurence H. Tribe Robert Silver (Counsel of Record) Boies, Schiller & Flexner Hauser Hall 420 80 Business Park Dr. 1575 Massachusetts Ave. Suite 110 Cambridge, MA 02138 Armonk, NY 10504 Thomas C. Goldstein Ronald A. Klain Amy Howe Andrew J. Pincus 4607 Asbury Pl. NW Gore-Lieberman Recount Cmt. Washington, DC 20016 430 S. Capitol St. Washington, DC 20003 (Counsel cont'd) Jonathan S. Massey Peter J. Rubin 3920 Northampton St. NW Georgetown Univ. Law Ctr. Washington, DC 20015 600 New Jersey Ave. NW Washington, DC 20001 Kendall Coffey Coffey Diaz & O'Naghten 2665 South Bayshore Dr. Miami, FL 33133 QUESTIONS PRESENTED I. Whether the Florida Supreme Court's decision interpreting and applying the provisions governing contest proceedings in Florida's Election Code according to established canons of statutory construction violates Article II, § 1, cl. 2. II. Whether the Florida Supreme Court's decision is inconsistent with 3 U.S.C. § 5. III.Whether the Florida Supreme Court's decision, enforcing Florida's contest provisions by ordering the manual review of ballots not counted by machines under the legal standard for determining their validity specified in Fla. Stat. § 101.5614, violates either the Equal Protection Clause or Due Process Clause of the Fourteenth Amendment. PARTIES TO THE PROCEEDING The following individuals and entities are parties to the proceeding in the court below: Governor George W. Bush, as nominee of the Republican Party for President of the United States; Richard Cheney, as nominee of the Republican Party for Vice President of the United States; Vice President Al Gore, as nominee of the Democratic Party for President of the United States; Joe Lieberman, as nominee of the Democratic Party for Vice President of the United States; Katherine Harris, as Secretary of State, State of Florida; Katherine Harris, Bob Crawford, and Laurence C. Roberts, individually and as members of the Florida Elections Canvassing Commission; the Miami-Dade County Canvassing Board; Lawrence C. King, Myriam Lehr, and David C. Leahy, as members of the Miami-Dade County Canvassing Board, and David Leahy, individually and as Supervisor of Elections; the Nassau County Canvassing Board; Robert E. Williams, Shirley N. King, and David Howard (or, in the alternative, Marianne P. Marshall), as members of the Nassau County Canvassing Board, and Shirley N. King, individually and as Supervisor of Elections; the Palm Beach County Canvassing Board; Theresa LePore, Charles E. Burton, and Carol Roberts, as members of the Palm Beach County Canvassing Board, and Theresa LePore, individually and as Supervisor of Elections; and Stephen Cruce, Teresa Cruce, Terry Kelly, Jeanette K. Seymour, Matt Butler, John E. Thrasher, Glenda Carr, Lonnette Harrell, Terry Richardson, Gary H. Shuler, Keith Temple, and Mark A. Thomas, as Intervenors. ii TABLE OF CONTENTS Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Opinions Below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Constitutional and Statutory Provisions . . . . . . . . . . . . . . . . . . 3 Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Summary of Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 I. Article II Provides No Basis To Override The Florida Supreme Court's Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 II. The Florida Supreme Court's Decision Is Consistent With 3 U.S.C. § 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 III. The Fourteenth Amendment Affords No Basis For This Court To Set Aside Florida's Established Statutory Proceedings For Determining The Proper Outcome Of The Election . . . . . . . 35 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 iii INTRODUCTION This case raises the most fundamental questions about the legitimacy of political power in our democracy. In this case, the Court will decide whether the Electors for President of the United States, and thus the President of the United States himself, will be chosen by ascertaining the actual outcome of the popular vote in Florida in the election of November 7, 2000, or whether the President will instead be chosen without counting all the ballots lawfully cast in that state. The Florida Supreme Court has determined, in a way that would be unremarkable but for the stakes in this election, that in order to determine whether lawfully cast ballots have been wrongfully excluded from the certified vote tally in this election, they must be examined. This is basic, essential, to our democracy, and to all that gives it legitimacy. The central question posed by this case is whether any provision of federal law legitimately forecloses the Florida Supreme Court from interpreting, applying, and enforcing the statutes enacted by the Florida Legislature to determine all election contests and ascertain the actual outcome of the popular vote in any such election. See Fla. Stat. § 102.168; see also Florida Election Code, Fla. Stat. §§ 97.011-106.37. This process ­ which operates by popular vote and employs administrative and judicial processes when needed to ascertain which candidate has prevailed ­ is the only provision by which the Florida Legislature has established the manner of appointing Florida's Presidential electors in the 2000 general election. They are common provisions that have been adopted and utilized for decades in the vast majority of the States. See infra. These statutes expressly provide for "judicial determination" of any contest to determine the rightful winner of an election, as called for by 3 U.S.C. § 5. Those statutes having been faithfully applied by the Florida Supreme Court in this case, the question is whether this Court may properly override Florida's own state-law process for determining the rightful winner of its electoral votes in this Presidential election. Such intervention would run an impermissible risk of tainting 2 the result of the election in Florida ­ and thereby the nation. For this Court has long championed the fundamental right of all who are qualified to cast their votes "and to have their votes counted." Reynolds v. Sims, 377 U.S. 533, 554 (1964). Petitioners' request that this Court intervene in a state electoral process to ensure that votes are not counted turns Sims on its head. In the end, notwithstanding fears as to how "counting of [the] votes" may "cast[] a cloud upon what [Governor Bush] claims to be the legitimacy of his election," Bush v. Gore, No. 00-949 (A-504), Slip op. at 2 (Dec. 9, 2000) (Scalia, J., concurring), there can be little doubt that a count of the still uncounted votes, as the Florida Supreme Court ordered in this case, will eventually occur. The only question is whether these votes will be counted before the Electoral College meets to select the next President, or whether this Court will instead relegate them to be counted only by scholars and researchers under Florida's sunshine laws, after the next President is elected. Nothing in federal law, the United States Constitution, or the opinions of this Court compel it to choose the second course over the first. OPINIONS BELOW The opinion of the Florida Supreme Court in the contest proceeding is unreported and is set forth in Exhibit A to the application for stay. The order of the Leon County Circuit Court in that proceeding is unreported and is set forth in Exhibits B and C to the stay application. The opinion of this Court in a distinct but related case involving many of the same parties, see Bush v. Palm Beach County Canvassing Bd., No. 00-836, Slip op. (U.S. Dec. 4, 2000) (per curiam) (hereinafter Palm Beach County), is reported at 2000 WL 1769093 and is set forth in Exhibit D to the stay application. JURISDICTION The Florida Supreme Court entered judgment on December 8, 2000. An application for stay was filed on the same day. On December 9, 2000, the stay was granted; the application was 3 treated as a petition for certiorari that also was granted. This Court has jurisdiction under 28 U.S.C. § 1257 to review the judgment of the Florida Supreme Court. CONSTITUTIONAL AND STATUTORY PROVISIONS The constitutional and statutory provisions at issue are reproduced in the appendix to this brief. See S. Ct. R. 24.1(f). STATEMENT OF THE CASE This case arises from a contest proceeding under the Florida Election Code to ascertain which Presidential candidate is the rightful winner of Florida's electoral votes in the 2000 general election. See Fla. Stat. § 102.168. Florida's election law establishes two distinct phases for the resolution of disputes regarding the outcome of an election. The first phase ­ the "protest" action ­ runs from election day through the certification of the election's results. It involves the reports of county canvassing boards to the Secretary of State and Elections Canvassing Commission, and the resolution by the county canvassing boards of any protests filed pursuant to Fla. Stat. § 102.166. This aspect of Florida's election law was before this Court in Palm Beach County Canvassing, supra, which sets out in more detail the factual background to this case. See id., Slip op. at 1-4. The second, post-certification phase for resolution of election disputes is the "election contest action" created by the Legislature in Fla. Stat. § 102.168. That law provides that "the certification of election * * * of any person to office * * * may be contested in the circuit court by any unsuccessful candidate for such office * * * or by any elector qualified to vote in the election related to such candidacy." One of the legislatively specified grounds for contesting any election is the "rejection of a number of legal votes sufficient to change or place in doubt the result of election." Id. § 102.168(3)(c). The Legislature expressly provided the state's courts with broad authority both to investigate claims in contest 4 actions and to fashion "any relief appropriate under such circumstances." Id. § 102.168(8). Indeed, throughout the litigation over the certification results, petitioners themselves identified the contest procedure as the proper manner in which respondent Gore could seek a remedy for the problem of uncounted votes in Florida. See, e.g., Answer Brief of George W. Bush before the Florida Supreme Court in Palm Beach County Canvassing Bd. v. Harris, Nos. SC00-2346, SC00-2348, & SC00-2349, at 18 (filed Nov. 19, 2000) (accusing respondent Gore of "substitut[ing] the certification process of Section 102.111 and Section 102.112 for the contested election process of Section 102.168 as the means for determining the accuracy of vote tallies"). As the Florida Supreme Court recounted in its opinion below: Bush's counsel, Michael Carvin, in the prior Oral Argument in Palm Beach Canvassing Board v. Harris, in arguing against allowing manual recounts to continue in the protest phase, stated that he did not think there would be any problem in producing...that kind of evidence in an election contest procedure...instead of having every court in Florida resolving on an ad hoc basis the kinds of ballots that are valid and not valid, you would be centralizing the factual inquiry in one court in Leon County. So you would bring some orderliness to the process, and they would be able to resolve that evidentiary question. Slip Op. 6 n.7 (emphasis added and omitted). Accordingly, on November 27, 2000, following the certification of Governor Bush as the winner of the Presidential election in Florida, Vice President Gore followed petitioners' recommended course of action and commenced this election contest action under Section 102.168 in Leon County Circuit Court. The complaint raised five claims: 5 (1) it challenged the rejection of 215 net legal votes for respondent Gore identified by the Palm Beach County Canvassing Board that had been excluded from the certified vote totals, Complaint ¶¶ 3(a), 60; (2) it challenged the rejection of 168 net legal votes for Vice President Gore identified by the Miami-Dade County Canvassing Board also excluded from the certified vote totals, id. at ¶¶ 3(a), 37; (3) it challenged the inclusion in the certified totals of the election night returns from Nassau County in place of the machine recount tabulation required by Fla. Stat. § 102.141 to be used to determine the certified totals, id. at ¶¶ 3(b), 41; (4) it argued that the court should review approximately 9000 Miami-Dade County ballots that were not counted by the machines,1 because ­ among other reasons ­ review of approximately 2000 similar ballots by the county canvassing board yielded nearly 400 legal votes, id. at ¶ 3(d); and (5) it challenged the rejection of 3300 legal votes in Palm Beach County during the county canvassing board's manual recount. Id. at ¶ 3(c). Following a two-day trial, the circuit court entered judgment for petitioners and the other defendants on all claims. Final Judgment Order, Sauls, J. (Dec. 4, 2000). Three of the circuit court's determinations were relevant to its refusal even to examine the 9000 Miami-Dade County ballots that were introduced into evidence during the trial. First, the court held that the ballots 1These ballots are often called "undervotes." Tr. Contest Trial at 180 (Dec. 2, 2000). They are ballots which have not been counted as votes for Presiden t, notwithstanding that on visual inspection they may evidence a voter's inten t to cast a vote f or Preside nt. 6 should not be reviewed because the Miami-Dade County Canvassing Board did not abuse its discretion in terminating its manual recount pursuant to Section 102.166. Tr. of Ruling, Sauls, J. (Dec. 3, 2000), at 10. Second, the court held that respondent Gore was required to establish a "reasonable probability that the results of the election would have been changed" before the court could review the ballots and that respondent Gore had failed to carry that burden. Id. at 9. And third, the court held that, in an election contest action, the court may not review only the contested ballots but rather must review all ballots cast or no ballots at all. Id. at 12. The Florida Supreme Court affirmed in part and reversed in part. The court affirmed the judgment regarding both the ballots from Nassau County and the rejection, after review, of 3300 ballots by the Palm Beach County Canvassing Board. Slip op. at 33, 35. The court reversed, however, as to the exclusion of ballots which the Palm Beach and Miami-Dade Canvassing Boards had determined to represent valid votes, holding that valid ballots may not be disregarded in an election contest simply because they were not identified prior to the close of the county certification process. Id. at 35. Most significant for present purposes, the court held that respondent is "entitled to a manual count of the Miami-Dade County undervote," but also that the Florida Election Code authorized as an appropriate remedy "a counting of the legal votes contained within the undervotes in all counties where the undervote has not been subjected to a manual tabulation." Slip op. at 2; see id. at 28-32, 38-40. Mindful of the impending deadline for resolution of the contest action contained in the safe harbor provision of 3 U.S.C. § 5, the court reversed with instructions to the circuit court to "commence * * * tabulation of the * * * ballots immediately." Slip. op. at 39. On remand, after the Florida Supreme Court's decision, the state circuit court conducted a hearing ­ the very same evening ­ to establish practical guidelines and judicial supervision of the process to ensure the fairness of the recount. In election contest 7 actions, the Florida Legislature has specifically conferred this judicial authority to "fashion such orders as [the court] 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." Fla. Stat. § 102.168(8). The circuit court exercised that authority here to establish orderly procedures for a statewide manual count of undervotes throughout Florida. Tr. of Hearing Before the Hon. Terry Lewis (Dec. 8, 2000); Order on Remand (Dec. 9, 2000). As to the roughly 9000 undervotes (ballots for which the machine did not record a vote) in Miami-Dade County, the circuit court established the following procedures: (1) beginning at 8:00 a.m. Saturday, the Miami-Dade County undervote ballots would be reviewed in the Leon County Public Library by the Supervisor of Elections of Dade County, in consultation with the Supervisor of Elections in Miami-Dade County; (2) the Supervisor would be permitted to rely on the Clerk of the Court and his staff; (3) two judges from the Second Judicial Circuit would oversee the counting teams; (4) those two judges would be directed to resolve any dispute about ballots; (5) if those judges could not resolve the dispute, Judge Lewis would resolve the dispute; (6) one person for the Democratic Party and one person for the Republican Party would be permitted to observe the count; (7) oral objections would not be permitted, but would be required to be reduced to writing and submitted to the state circuit court; (8) the counting room would be open to the public and the press; and (9) the circuit court would aim to complete the count by 2:00 p.m on Sunday. Lewis Hrg. Tr. 1-8; Order on Remand 1-2. As for the other counties, the circuit court established the following guidelines: (1) only "undervotes" would be reviewed; (2) the Canvassing Boards would be directed to implement procedures for manually counting the votes, just as they have traditionally done under existing Florida law; (3) judges from throughout the State could be requested to help resolve disputes 8 that might arise during the recounts; (4) by 12:00 p.m. Saturday, December 9, 2000, the County Canvassing Boards would be requested to fax their plans, protocols, and estimated time schedules to the Leon County Court administrator for the court's review; and (5) the Boards would aim to complete their work by 2:00 p.m. Sunday. Lewis Hrg. Tr. 1-8; Order on Remand 2-3. The circuit court applied the Florida Supreme Court's holding that the counting teams were to follow the traditional legal standard under Florida law, as set forth by the Supreme Court, for determining whether a valid vote has been cast. In short, the circuit court's guidelines set forth a conventional, uniform process for implementing the court-ordered counting of votes in accord with the Florida Legislature's designated manner of conducting elections. The procedures put in place promise to produce a full, fair, and accurate state-wide count of the undervote in accordance with the Florida Supreme Court's ruling that faithfully implemented the applicable provisions of Florida's Election Code, which unambiguously provides for judicial determination of election contests. See Fla. Stat. § 102.168. By Order of December 9, 2000, this Court granted a stay halting the ongoing counts. The Court also treated the Stay Application as a Petition for Certiorari, which it granted. SUMMARY OF ARGUMENT This Court should immediately vacate its stay and affirm the Florida Supreme Court's judgment. I. The Florida Supreme Court's decision is fully consistent with Article II, § 1, cl. 2. Petitioners' primary argument to this Court ­ which is flatly contrary to petitioners' position in the Florida courts ­ is that the mere assertion of appellate jurisdiction by the Florida Supreme Court violated Article II, § 1, cl. 2. This argument lacks merit because Article II, § 1, cl. 2 presupposes the existence of authority in each state to structure the internal processes and organization of each of its governmental branches; 9 judicial review and interpretation of Florida's election statutes is a necessary legislative assumption. In any event, the Florida Legislature itself drafted, proposed, and approved through bicameral passage the very provisions of its constitution that provide for appellate jurisdiction. The grant of jurisdiction contained in those provisions, as much as an ordinary Florida statute granting courts jurisdiction, thus was accomplished by the Legislature. Further, petitioners' newfound argument is also foreclosed by this Court's longstanding precedents. See, e.g., Smiley v. Holm, 285 U.S. 355 (1932); State ex rel. Davis v. Hildebrant, 241 U.S. 565 (1916); McPherson v. Blacker, 146 U.S. 1 (1892). In addition, petitioners' pejorative characterizations of the Florida Supreme Court's decision are unfounded and highly irregular. In its ruling, the Florida court did not "make law" or establish any new legal standards that conflict with legislative enactments. Rather, the court engaged in a routine exercise of statutory interpretation that construed the Florida Election Code according to the Legislature's designated "manner" for choosing electors in a statewide election. See Fla. Sta. § 103.111. II. Petitioners' argument under 3 U.S.C. § 5 is insubstantial. It is not at all apparent how petitioners' current incarnation of this argument even raises a federal question: it is clear ­ and not now contested by petitioners ­ that 3 U.S.C. § 5 simply establishes a safe harbor for States that wish to make use of it. There is no dispute here about the meaning of 3 U.S.C. § 5. And there can be no doubt that the Florida Supreme Court was attentive to the terms of the statute and took into account the relevance of 3 U.S.C. § 5 in determining the intent of the Florida Legislature. In any event, nothing in the decision below even remotely creates "new law" in a manner that runs afoul of the terms of 3 U.S.C. § 5, or that affects Florida's entitlement to that provision's safe harbor. The court engaged in a perfectly ordinary exercise of statutory construction, and it surely cannot be the case that the law "changes" when a jurisdiction's highest court settles the meaning 10 of state law. In fact, because the circuit court's decision departed from the plain language of the Florida Election Code, under petitioners' theory reversal of the judgment below will deprive Florida's electors of the safe harbor of Title 3. III. Finally, the Florida Supreme Court's judgment is fully consistent with equal protection and due process. Until now, petitioners have steadfastly taken the position before the Florida courts that, consistent with settled Florida law, a contest action is the proper means by which respondent should challenge the vote count in this election. It is inconsistent for them now to object to the very contest procedure they previously endorsed. Moreover, contest actions under Florida law relate only to the ballots which one side or the other contests ­ virtually every Florida election contest case involves a small fraction of the votes cast in the contested election. In any event, the Florida Supreme Court's order to review the ballots from Miami-Dade County is consistent with established state law. The Florida Supreme Court's order of a manual tabulation of ballots that were recorded as "no votes" is also consistent with state law. Nor does the "voter intent" standard set by Florida law violate the Equal Protection Clause. The Florida Supreme Court has ordered not the "selective" recount of which petitioners have complained but a statewide recount of all uncounted ballots in every Florida county that had not already completed a manual recount. Indeed, the Florida Supreme Court expressly granted petitioners the relief they sought with respect to a statewide recount; petitioners are in no position to complain about a point on which they prevailed. Petitioners' allegations about the manner in which they say the manual counts have been conducted have no support in the record and are based on unsubstantiated rumors, untested "evidence," and biased ex parte submissions. In fact, the recounts have been conducted in full public view by counting teams made up of 11 representatives from different political parties, with the supervision of a three-member canvassing board that includes a sitting county judge and review by the Florida judiciary. The circuit court developed lengthy and detailed guidelines to ensure uniformity and accuracy. If there are anecdotal instances of isolated mistakes or inaccuracies during recounts, petitioners have ample remedies available to them under Florida law and Florida procedure to secure full redress. In the end, petitioners' argument amounts to a charge that the system of manual recounts, expressly authorized by Florida statute and previously used in innumerable instances over the years by Florida (and States throughout the country) is unconstitutional on its face. Such an ambitious and far-reaching claim has no legal support whatsoever. The judgment should be affirmed. Because of the pressing need to complete the counting of votes, we ask that the stay be lifted immediately. ARGUMENT I. Article II Provides No Basis to Override the Florida Supreme Court's Decision. Petitioners contend that the Florida Supreme Court's decision "established new standards * * * that conflict with legislative enactments and thereby violate Article II, Section 1, Clause 2 of the United States Constitution." Stay App. at 2 (Question Presented 1). Six days ago, in Bush v. Palm Beach County, No. 00-836, 531 U.S. __ (U.S. Dec. 4, 2000) (per curiam), this Court addressed a claim put forward by petitioner Bush that the decision of the Supreme Court of Florida in Harris v. Palm Beach County under the Florida Election Code's protest provision (Fla. Stat. § 102.166) ran afoul of this same constitutional provision. Petitioner there argued that "Article II precludes judicial lawmaking." See Bush Br. in Palm Beach County at 46. In particular, petitioner Bush relied upon McPherson v. Blacker, 146 U.S. 1, 35 (1892), for the proposition that, in interpreting state statutes relating to the 12 appointment of electors, the Florida court had run afoul of the provision of the U.S. Constitution giving the state legislature the power to determine the manner of appointment of electors. Petitioner Bush argued that the infirmity in the Harris decision was that the Florida court's construction of the provisions concerning certification of election results did not rest on "any statute." Bush Br. in Palm Beach County at 47. Petitioner Bush did not suggest that the Florida Supreme Court was disabled from exercising appellate review in that case ­ even though the protest provision of Section 102.166 (unlike the contest provision of Section 102.168) makes no reference at all to judicial review by any Florida court. Nonetheless, petitioner Bush freely acknowledged that the Florida Court could issue "directive[s] founded in pre-existing law." Bush Br. at 48. "Petitioner has never contended that state courts * * * are precluded by Article II from construing laws relating to elections." Bush Reply Br. in Palm Beach County at 9 n.6. This much was common ground about Article II underlying this Court's per curiam opinion in Palm Beach County. This Court, of course, "decline[d] * * * to review the federal questions asserted" by petitioner Bush "to be present." Slip op. at 6. It did so because there was "ambiguity" about "the extent to which the Florida Supreme Court saw the Florida Constitution as circumscribing the Legislature's authority under Art. II, § 1, cl. 2." Id. at 7. Specifically, this Court could not determine whether the Florida court intended that its conclusions rest solely upon traditional canons of statutory interpretation, or depended upon the state constitution as an independent and overriding source of law.2 2 See id. at 5 ("There are expressions in the opinion of the Supreme Court of Florida that may be read to indicate that it construed the Florida Election Code without regard to the extent to which the Florida Constitution could, consistent with Art. II, § 1, cl. 2, `circumscribe the legislative power.' The opinion states, for example, that `to the extent that the Legislature may enact laws regulating the electoral process, those laws are valid only if they impose no "unreasonable or unnecessary" restraints on the right of suffrage' 13 Indeed, this Court exercised jurisdiction by vacating the judgment below. See id. 1. Recognizing that they have no good claim under the Article II theory presented to this Court just six days ago, petitioners now put forward a radical new proposition in the name of Article II: that the highest appellate court of the state may not exercise its ordinary appellate jurisdiction over decisions of lower state courts where its jurisdiction is granted by the state constitution rather than in legislation dealing specifically with presidential elections. Even apart from the absurd theory that McPherson requires everything relevant to a state's process for choosing electors to be packed into a specialized presidential electoral code, the very premise of petitioner's argument is fatally flawed because the Florida Legislature re-enacted the contest statute in 1999 against the settled background rule that decisions of circuit courts in contest actions are subject to appellate review. See, e.g., Beckstrom v. Volusia County Canvassing Bd., 707 So. 2d 720 (Fla. 1998); Harden v. Garrett, 483 So. 2d 409 (Fla. 1985); Bolden v. Otter, 452 So. 2d 564 (Fla. 1984); McPherson v. Flynn, 397 So. 2d 665 (Fla. 1981). "It is an elementary principle of statutory construction that in determining the effect of a later enacted statute, courts are required to assume that the Legislature passed the latter statute with knowledge of the prior existing laws." Romero v. Shadywood Villa Homeowners Ass'n, 657 So. 2d 1193, 1195-96 (Fla. Dist Ct. App. 1995). Under Florida law, therefore, in referring to the "circuit court" in Section 102.168, the Legislature necessarily intended to encompass the ordinary accouterments of appellate review of circuit court decisions. Cf. Marbury v. Madison, 5 U.S. 137, 177 (1803) ("It is emphatically the province and duty of the judicial department to say what the guaranteed by the state constitution. App. to Pet. for Cert. 30a. The opinion also states that `because election laws are intended to facilitate the right of suffrage, such laws must be liberally construed in favor of the citizens' right to vote . . . .' Ibid."). 14 law is."). Under Florida law, legislative provisions granting jurisdiction to the Circuit Court, without any express limitations, are always taken to include appellate review. See, e.g., State v. Sullivan, 116 So. 255 (Fla. 1928); Cote v. State, 760 So. 2d 162 (Fla. Dist. Ct. App. 2000), rh'g denied (May 8, 2000). It accordingly is no surprise that the Legislature filed an amicus brief in this Court in the Palm Beach County matter that expressly recognizes the jurisdiction of the state's Supreme Court. Br. of Florida Senate & House of Representatives, No. 00-836, Bush v. Palm Beach County Canvassing Board, at 9 ("Florida has in place an election code for the resolution of disputes and a court system, including a Supreme Court, with the usual judicial powers of such courts." (emphasis added)). Thus, the statute itself supplies the necessary authority for review here. Even petitioners do not try to explain why the Legislature would have wanted to endow a single circuit judge with final authority to decide these cases. Instead, all indications are that the Legislature intended this statute to be governed by the settled principle of Florida law that the state supreme court has appellate jurisdiction over all matters determined in the lower courts unless the Legislature expressly precludes such review. See, e.g., Leanard v. State, 760 So. 2d 114, 118 (Fla. 2000) (Florida statutes are traditionally construed to preserve judicial review "rather than limiting the subject matter of the appellate courts"). That, of course, is a principle with which the Florida Legislature is quite familiar. 2. In any event, it is plain that Article II would not have been implicated at all had the court below premised its jurisdiction on the Florida Constitution, because Article II, § 1, cl. 2 presupposes the existence of authority in each state to structure the internal processes and organization of each of its governmental branches; and because, in any event, the Florida Legislature itself drafted, proposed, and approved through bicameral passage the very provisions of its constitution that provide for appellate jurisdiction. The grant of jurisdiction contained in those provisions, as much as 15 an ordinary Florida statute granting courts jurisdiction, thus was accomplished by an act of the Legislature, and nothing in Article II, § 1, cl. 2, requires that all the provisions bearing on the selection of presidential electors be located exclusively in a separate statute devoted solely to that end ­ even assuming that a legislature, exercising its power under Article II, could by express provision eliminate judicial review for any contests arising out of the choice of Presidential electors, or confine that review to the final determination of trial judges. The issue here is whether the Florida legislature has done that. It has not. Under Florida law, an amendment or revision to the state constitution may be undertaken "by joint resolution agreed to by three-fifths of the membership of each house of the legislature." Fla. Const. art. 11, § 1. Pursuant to that method, the Legislature drafted, proposed, and approved the constitutional provision that confers jurisdiction on the state supreme court. See Fla. Const. Art. 5, § 3(b). That provision originated as a Senate Joint Resolution and was approved by concurrent votes of both houses of the state legislature in 1971. See S.J.R. No. 52-D (1971). It was ratified by Florida's voters in 1972. See West's Fla. Stat. Ann., Fla. Const., art. V. The relevant jurisdictional provisions of the constitution were further revised, again at the proposal and on the vote of both houses of the Florida Legislature, in 1980. See S.J.R. No. 20-C (1980); West's Fla. Stat. Ann., Fl. Const., art. V (historical notes). This process plainly satisfies any Article II requirement that contests regarding presidential electors proceed under rules devised by the state legislature. That it was contained in a measure not dedicated to the presidency and the Electoral College as such is without constitutional significance. Petitioners could not respond to this seemingly self-evident point by arguing that nothing but state "legislation," and perhaps state "electoral college legislation," is contemplated by Article II. That provision's plain terms mandate only that a State's electors be appointed "in such Manner as the Legislature" thereof may direct; it does not require 16 that the legislature must act by enacting a bill into law, as opposed to other means of direction. Indeed, this Court has so held. See McPherson v. Blacker, 146 U.S. 1, 29 (1892).3 Nor is this conclusion undermined by the fact that state constitutional provisions in Florida, after proposal and passage by the Legislature, are ultimately ratified or adopted by the voters. Indeed, this Court has squarely held that the analogous constitutional provision in Article I, § 4, which vests state legislatures with the power to prescribe the manner for selecting representatives to Congress, is consistent with a legislative exercise of authority made subject to popular referenda. See State ex rel. Davis v. Hildebrant, 241 U.S. 565 (1916). By the same token, state legislation ­ which petitioners insist must govern presidential election disputes ­ is passed by the Legislature but takes effect only when approved by the governor. It is beyond peradventure that the presence of this part of the state lawmaking scheme does not violate a constitutional delegation to the state "Legislature," even when the executive power is used to veto legislation adopted by the Legislature. See Smiley v. Holm, 285 U.S. 355 (1932) (delegation to each State's "Legislature" in Art. I, § 4 of the authority to prescribe the "Times, Places and Manner of holding Elections for Senators and Representatives," U.S. Const. art. I, § 4, does not preclude the State's governor from vetoing a state congressional reapportionment law). The point therefore seems inarguable: in exercising jurisdiction in this case, the Florida Supreme Court acted in precisely the "[m]anner" directed by the Legislature.4 3 Of cour se, it is common ground that the means chosen by the legislature are subject to constraints imposed by other provisions of the federal Constitution, for example, Article II, § 1, cl. 4, and the Fo urteenth Ame ndmen t. 4 Although it is not directly relevant here, we note that the same principles govern application of Art. 1, § 1 of the Florida Constitution, which was at issue in Palm Beach County. That provision also was approved by the Legislature and presented to the voters as part of a significant constitutional 17 Petitioners appear to argue that, under McPherson, the jurisdiction of the state supreme court may not be premised on the Florida Constitution because the U.S. Constitution "does not permit state constitutions to override a state legislature's selection of the manner of choosing electors." Stay App. at 25. But at most this case involves interpreting a state legislature's mode of selection, not overriding it. Moreover, in McPherson; the Court in that case noted, without question, that the Colorado Constitution of 1876 "prescribed" the selection of electors by the legislature of the newly admitted State. 146 U.S. at 33. Further, an 1874 Senate report quoted in McPherson referred to the appointment of electors as provided in a state constitution. See id. at 35 ("Whatever provisions may be made by statute, or by the state constitution, to choose electors by the people, there is no doubt of the right of the legislature * * * ." (emphasis added)). Even under the most aggressive reading of McPherson, however, petitioners' argument is insubstantial.5 As the Court indicated in Palm Beach County, McPherson might be read to suggest that it is impermissible for a state constitution to revision and re-enactment in 1968. See Florida Soc'y of Opthalmology v. Florida Optometric Ass'n, 489 So. 2d 1118, 1122 n.2 (1986) (Ehrlich, J., specially concurring); Joseph W. Little, The Need to Revise the Florida Constitutional Revision Commission, 52 FLA. L. REV. 475, 476 n.8 (2000). At the time of th at action, the Legislature surely was aware that the provision had long been understood to emphasize the importance of the right to vote. See, e.g., State v. Bird, 163 So. 248, 252 (Fla. 1935). 5 And, indeed, were it the proper reading, this Court would not have remanded in Palm Beach County. In that case, the Florida Supreme Court expressly relied on Article V of the Florida Constitution as the basis fo r its jurisdiction. See Slip op. at 5. This Court did not express any concern about the Florida court's exercise of its appellate jurisdiction in that case. Rather, it said that it could not precisely determine the "grounds for the decision" below. See Palm Beach County Canv assing Board, Slip op. at 6 (internal quotation marks and citation omitted). If this Court had thought that the mere exercise of jurisdiction under a state constitution was improper, it would not have had to remand the case for clarification. 18 "circumscribe the legislative power" regarding the process for selecting electors. 146 U.S. at 25. Whatever might be the rule where a state constitution was not passed by the state legislature, here, far from "circumscrib[ing] the legislative power," the Legislature itself, as noted above, proposed and passed the state constitutional provision that petitioners insist governed this action. And it surely cannot be the case that Article II of the U.S. Constitution precludes state legislatures from using state constitutional mechanisms to resolve controversies concerning electors, if that is the "[m]anner" of appointment that the legislature "direct[s]." Indeed, any such rule of preclusion necessarily would run afoul of petitioners' own reading of Article II, under which legislatures have carte blanche in determining the manner of appointment. Article II cannot be read to swallow itself. Nor is this even a case where a constitutional provision initially promulgated by the Legislature was later asserted to prevent enforcement of a state statute, which was the issue raised by this Court's Palm Beach County opinion. Nothing of the sort is going on here. To the contrary, Article V of the Florida Constitution and Fla. Stat. § 102.168 are entirely consistent with one another ­ and there is every reason to believe that the Legislature intended and expected that participants in election contests would make use of the appeals process as a means of clarifying, interpreting, and enforcing the laws. Under petitioners' own approach, then, Article II of the U.S. Constitution requires that the right to appeal put in place by the Florida Legislature must govern here. Finally, petitioner's argument is directly refuted by State ex rel. Davis v. Hildebrant, 241 U.S. 565 (1916), in which this Court held that Article I, § 4, allowing States to prescribe the manner in which representatives to Congress are elected, does not preclude the state supreme court from exercising jurisdiction over such matters even though that jurisdiction is premised squarely on the state constitution. Id. at 568-70. This precedent completely 19 undercuts petitioners' argument that the Florida Supreme Court, by invoking its jurisdiction under Article V of the Florida Constitution, is completely disabled from playing its ordinary role as the highest court of the state when questions arise concerning the laws that relate to the appointment of electors. Indeed, McPherson itself was an original mandamus action in the Michigan Supreme Court. See 52 N.W. 469, 470, aff'd, 146 U.S. 1. This Court affirmed on the merits.6 3. Even if the Florida Supreme Court's authority were thought to stem only from the Florida Constitution, not the statute, and even if that constitution had not been enacted by the Legislature, exercise of that authority still would not violate Article II. a. To begin with, the theories put forward by petitioner Bush 6 In any event, this argument was not properly raised below. At oral argume nt, petitioners' counsel concede d in response to direct questioning that the Florida Suprem e Court h ad jurisdiction in this case, de spite Article II. After argument, petitioners filed an untimely " clarification o f argum ent" that was not accepted by the Court below. Even in that filing, petitioners did not argue, as they do here, that Article II disabled the Florida Supreme Court from exercising appellate jurisdiction. To the contrary, they said only that the "relief" sought by respondent was barred by Article II. See Bush Clarification at 2-3. This is an appeal from a state court judgment, under 28 U.S.C. § 1257. That statutory authority prevents this Court from deciding federal constitutional claims that are raised f or the first tim e before it in a ppeals from state court decisions. See Adams v. Robertson, 520 U.S. 83, 88 (1997) (per curiam); Cardinale v. Louisiana, 394 U.S. 437, 438-39 (1969). Before a claim may be conside red here on appe al, it must "`be brou ght to the attention of the state court with fair precision and in due time.'" Street v. New York, 394 U.S. 576, 584 (1969) (quoting New Y ork ex rel. B ryant v. Zimmerman, 278 U.S. 63, 67 (1928)). This rule is mandated by principles of federalism that req uire respec t for state cou rts which h ave acted in complete good faith in reaching decisions that may involve questions of federal law. In this case, petitioners were asked at oral argume nt, directly and repeatedly, whether Article II disabled the court below from adjudicating the appeal and they insisted that it did not. They never departed from that position before the Flo rida Supre me Co urt, even in th eir untime ly post- argument submission. 20 in Palm Beach County and here are based on misreadings of Article II and of this Court's precedents. Should the Court in this case reach the issue reserved in Palm Beach County, it should conclude that a state court need not avoid use of the state constitution in construing legislation. The state courts would be strange places indeed if Article II disabled them, in construing statutes enacted pursuant to constitutional grants of power to the "Legislature," from placing any reliance on state constitutions. The only authority cited by petitioners for that proposition, McPherson v. Blacker, actually supports the opposite conclusion: that the state courts, in interpreting state statutes enacted pursuant to the delegation of authority in Article II, may rely on all the sources of law they ordinarily bring to the task of interpreting state laws. McPherson does state in dictum that the delegation to the legislature in Article II "operate[s] as a limitation upon the State in respect of any attempt to circumscribe the legislative power." 146 U.S. at 25. And undoubtedly it is true that, except by action of the legislature, the State could not purport to vest the power to direct the manner of the appointment of electors in any other body or individual. But McPherson makes equally clear that, once a state legislature has enacted laws in exercise of its power to direct the manner of appointment of electors, the state courts may interpret those laws prec