QUESTIONS PRESENTED 1. Whether the Florida Supreme Court's interpretation of Florida law presents a substantial federal question for this Court to review or instead a determination reserved to the States? 2. Whether the State of Florida's statutorily mandated manual recount process, indistinguishable from the laws of other states and reflective of a process that has been applied throughout this country for centuries, violates the U.S. Constitution? ii TABLE OF CONTENTS QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . i TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . iii STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . 4 REASONS FOR DENYING THE WRIT . . . . . . . . . . . . . . 14 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 BRIEF IN OPPOSITION TO PETITIONS FOR WRIT OF CERTIORARI In two companion petitions for writs of certiorari, Governor George W. Bush, together with related parties, asks this Court to interfere with ongoing manual recounts of the ballots cast in the State of Florida for the President of the United States as provided under Florida law. One petition, which seeks review of the judgment of the Florida Supreme Court interpreting provisions of the Florida Election Code governing manual recounts, rests on intemperate and insupportable mischaracterizations of that court's decision as usurping the role of the state legislature. In fact, the Florida Supreme Court played a familiar and quintessentially judicial role: it interpreted Florida law "us[ing] traditional rules of statutory construction to resolve [statutory] ambiguities." Slip op. at 39. Indeed, the court expressly "decline[d] to rule more expansively, for to do so would result in this Court substantially rewriting the Code. We leave that matter to the sound discretion of the body best equipped to address it ­ the Legislature." Id. Thus, the questions purportedly framed in the petition are not in fact presented by this case. The other petition seeks certiorari before judgment in a case in which the U.S. District Court for the Southern District of Florida has merely denied a preliminary motion to restrain the recounts and the U.S. Court of Appeals for the Eleventh Circuit has denied an injunction pending appeal and has nearly completed expedited briefing. That petition necessarily would bring only an extremely narrow question for the Court's consideration. In addition, that petition is riddled with non- record, ex parte, partisan accusations regarding the manner in which the Florida recount is proceeding. These accusations are false and have not been tested in court through cross- examination, verification, or judicial fact-finding. Indeed, Petitioners have deliberately avoided proceeding in the appropriate fora where their factual claims could be considered and resolved. All of this underscores the undeveloped nature of this case, the absence of adequate foundation in the courts 2 below, and the inappropriateness of the extraordinary step of certiorari before judgment. Moreover, the substance of Petitioners' federal claims does not warrant review by this Court. Petitioners ask this Article III Court to interfere with a task that has been expressly delegated to the State of Florida by the U.S. Constitution's command in Article II that "[e]ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress." U.S. Const. art. II, § 1, cl. 2 (emphasis added). This is not merely a question of a power "reserved" to the States by the Constitution, cf. U.S. Const. amend. X, but of an express constitutional delegation of exclusive authority. The Constitution explicitly confers upon the States plenary and exclusive power to establish the manner in which their presidential electors are chosen. Williams v. Rhodes, 393 U.S. 23, 30-31 (1968); McPherson v. Blacker, 146 U.S. 1, 27 (1892); Ray v. Blair, 343 U.S. 214, 224-25 (1952). At bottom, Petitioners seek to have this Court intervene in the process by which the organs of the Florida state government are effecting the procedure by which the State legislature has determined to appoint that State's presidential electors. Beyond the obvious reasons that certiorari should be denied in this case ­ the patent insubstantiality of the federal claims presented, the absence of any conflict in authority, the utterly factbound and undeveloped nature of Petitioners' arguments ­ there are profound reasons of institutional legitimacy that counsel against a grant of certiorari. To begin with, principles of federalism that this Court has repeatedly reaffirmed against vigorous challenge counsel strongly against interference by this, or any, federal court in the process articulated by Florida state law, as set out by statute and interpreted by the courts of that State. Only on the most compelling showing of a constitutional violation should a federal court interfere with this task, uniquely delegated by the Constitution to the State government. 3 Petitioners' federal claims, even if properly presented,1 are insubstantial and do not come close to meeting the high threshold that would require this Court to interfere with a State's process for appointing its electors for President of the United States. Finally, this Court's involvement here will not add "legitimacy" to the outcome of the election. Contra Pet. for Certiorari, Bush v. Palm Beach County Canvassing Bd., No. 00-836 (Nov. 22, 2000) [hereinafter Bush Pet.] at 12. The cases below involve only questions of Florida state law, questions that even Petitioners ultimately agree are within the power of the Supreme Court of Florida to resolve. Id. at 10 ("Given the national significance of the Florida election results, it is essential that the counting of ballots be conducted in a fair and consistent manner in accordance with established Florida law."). This Court's interference with the normal processes by which questions of state law are resolved, and indeed, with the ongoing processes by which the President and Vice-President of the United States are chosen, would only diminish the legitimacy of the outcome of the election. That is particularly true given that it is difficult to imagine how this Court could intervene in the still-ongoing state proceedings so rapidly and clearly as not to deflect and derail the election process in untoward and unprecedented directions. Thus, even if it were true that the outcome of the case may raise for the public "questions of similar magnitude" to those presented in cases such as United States v. Nixon, 418 U.S. 683 (1974), see Pet. for Certiorari, Siegel v. LePore, No. 00-837 (Nov. 22, 2000) [hereinafter Siegel Pet.] at 15, it presents no federal constitutional questions of similar magnitude ­ indeed, 1 There is the g reatest dou bt that Petition ers' federa l claims in th e state court action are fairly presented here, given that Petitioners conscio usly decided to avoid discussing federal law in the Florida trial court and raised the question before the state Supreme Cou rt only in a few pages at the end of a brief there. See Slip op. at 10 n.10. 4 no constitutional questions of any real substance at all. Thus, the petitions for certiorari in both Bush v. Palm Beach County Canvassing Board and Siegel v. LePore should be denied. STATEMENT OF THE CASE A. The Election On November 7, 2000, Florida citizens cast over 5,820,000 ballots in the general election for the President of the United States. Under Florida's election law, the outcome of this election would determine what slate of electors would cast Florida's twenty-five electoral votes for the President of the United States. Based on initial returns transmitted to it by the county canvassing boards of Florida's sixty-seven counties, on Wednesday, November 8, 2000, the Florida Division of Elections ("Division") reported that Governor George W. Bush had received 2,909,135 votes for President and that Vice- President Al Gore had received 2,907,351 votes. B. Florida's Recount Provisions Because the margin between the two leading candidates was less than one-half of one percent of the total votes cast for that office, Florida law required an automatic recount of the ballots. Fla. Stat. § 102.141(4). No specific process is required under Florida law for this recount. Most counties conducted this recount by simply repeating whatever process, usually machine, they had used to count the ballots initially. A few counties, however, conducted hand recounts. At the end of this initial automatic recount, the margin between the two leading candidates for President of the United States was reduced from the initially stated 1,784 votes to 300 votes. Florida law provides that its counties may conduct a further manual recount to address "an error in the vote tabulation which could affect the outcome of the election." Fla. Stat. § 102.166(5). In any county, any candidate "may file a written request with the county canvassing board for a manual recount." 5 Id. § 102.166(4)(a). The statute requires that the request "contain a statement of the reason the manual recount is being requested." Id. Any such request "must be filed with the canvassing board prior to the time the canvassing board certifies the results for the office being protested or within 72 hours after midnight of the date the election was held, whichever occurs later." Fla. Stat. § 102.166(4)(b). The purpose of the manual recount is to determine whether there is "an error in the vote tabulation which could affect the outcome of the election." Fla. Stat. § 102.166(5). If a county canvassing board decides to grant a request for a manual recount, it need not initially order a county-wide recount. Rather, an initial recount only "must include at least three precincts and at least 1 percent of the total votes cast for such candidate or issue * * * . The person who requested the recount shall choose three precincts to be recounted, and, if other precincts are recounted, the county canvassing board shall select the additional precincts. Id. § 102.166(4)(d). The statute further provides that: If the manual recount indicates an error in the vote tabulation which could affect the outcome of the election, the county canvassing board shall: (a) Correct the error and recount the remaining precincts with the vote tabulation system; (b) Request the Department of State to verify the tabulation software; or (c) Manually recount all ballots. Fla. Stat. § 102.166(5) (emphasis added). Manual recounts must be conducted in accordance with the procedures set forth in Section 102.166(7). Those procedures require that the county canvassing board appoint counting teams of at least two electors who are members of different political parties to manually recount the ballots. If a counting team is unable to determine a voter's intent in casting a ballot, the ballot 6 must be "presented to the county canvassing board for it to determine the voter's intent." Fla. Stat. § 102.166(7)(a)-(b). C. The Manual Recounts, Petitioners' Attempted Federal Action, and the Scope of the Siegel Petition After the automatic statewide recount reduced the margin between Governor Bush and Vice-President Gore to 300 votes, the Florida Democratic Party requested a manual recount in four Florida counties: Palm Beach, Volusia, Broward, and Miami- Dade. Pursuant to those requests and the requirements of Florida Statutes Section 102.166(4)(d), the county canvassing boards of those counties conducted a sample manual recount of 1 percent of the total votes cast in their respective counties.2 2 Both Palm Beach County and Broward Co unty employ a pun ch card balloting system. Voters in the counties are given a rectangular card ballot covered with perforated squares. Although the squares are numbered, the candidates' names do not ap pear on the ballot. Voters a re instructed to slide the card into a machine, which holds a book listing the candidates for office next to a series of holes. Voters are told to insert the stylus provided into the hole next to the ir candida te of choic e. The goal of the voting machine set up is that the stylus will be inserted in such a way that a "chad," one of the perforated squares, is completely separated from the ballot. If this happens a machine reader will later be able to count the votes re flected on the ballot. Unfortunately, a chad does not always fully separate from a ballot when punched by a stylus. The chad may o nly partially detach from the card, or, if the voting machine becom es clogged with chad from previous voters, the ballot may o nly be "d impled ." The m achine re ader w ill not be able to read the ballot. Su ch unco unted b allots are called "under votes." Because of the high percentage of undervotes created by punch card voting systems, the vast m ajority of counties in Florida do not use them. In Broward County, the undervote in the November 7, 2000, election for President was over 6,000 ballots. In Palm Beach County it was an incredible 10,750 ballots. Ab sent a manu al recoun t, the votes re flected on these ballo ts would not be counted in the election. The dislodging of chad from punch card ballots is a consequence of the fact that partially d islodged chads re main atta ched to th e cards. See De cl. of Rebecca Mercuri, App. of Appellee-Intervenor Florida D emoc ratic Party in Siegel, No. 00 -1598 1-C (C A11) tab 16, ¶ 9. Contrary to th e suggestion of Petitioners' filing, it is virtually impossible to dislodge chads that have not already been partially dislodged. See Lee Gomes, Chads - How Tough Are 7 At the conclusion of those initial recounts, each of the four counties ultimately determined that the sample had revealed tabulation discrepancies that could affect the outcome of the election and decided, consistent with the requirements of Section 102.166(5)(c), to manually recount all of the ballots cast in their respective counties in accordance with Florida Statutes Section 102.166(5)(c). Petitioner Bush did not request a manual recount in any Florida county. (Neither did he then or at any time since object to including hundreds of ballots in his favor that were counted by hand initially and in the initial recount.) Instead, on November 11, 2000, a day when he could himself still have sought countywide recounts in most Florida counties, he filed the Siegel case (in which Petitioners now seek certiorari before judgment) in the U.S. District Court for the Southern District of Florida seeking to have the federal courts enjoin the ongoing Florida process for counting ballots in its election. In the complaint, and despite the fact that they had neither requested nor been denied manual recounts anywhere in Florida, Petitioners alleged that the manual recounts in four counties, which had not yet begun, would violate Equal Protection, Due Process, and the First Amendment. On November 13, 2000, following briefing by the parties, a district court properly denied Plaintiffs' Emergency Motion for Temporary Restraining Order and Preliminary Injunction through an extensive Order (the "Order"), Siegel v. LePore, No. 00-9009-civ, 2000 WL 1687185 (S.D. Fla. Nov. 13, 2000), on the grounds that: (a) federal court intervention would inappropriately interfere with Florida's selection of its presidential electors; (b) the Florida statute providing for the manual recounting of election results, Fla. Stat. § 102.166, is reasonable and non-discriminatory and does not violate the First or Fourteenth A