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 OF RESPONDENTS AL GORE, JR., AND FLORIDA DEMOCRATIC PARTY (Additional Counsel Listed Laurence H. Tribe In Signature Block) (Counsel of Record) Hauser Hall 420 1575 Massachusetts Ave. Cambridge, MA 02138 November 28, 2000 TABLE OF CONTENTS STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . 1 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . 11 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 I. THE FLORIDA SUPREME COURT'S DECISION DID NOT ABROGATE EXISTING FLORIDA STATUTORY LAW . . . . . . . . . . . . . . . 13 II. TITLE 3, SECTION 5 PROVIDES ONLY A RULE FOR DETERMINING WHETHER A STATE'S ELECTORS SHALL BE SUBJECT TO CHALLENGE BEFORE CONGRESS; IT DOES NOT PROHIBIT ANY ACTION OR DECISION BY A STATE . . . . . . . . . . . . . . . . . . . . 21 A. SECTION 5 IS A SAFE HARBOR OPTION, NOT A MANDATE . . . . . . . . . . . . . . 22 B. ANY READING OF SECTION 5 AS A MANDATE TO THE STATES WOULD RAISE SERIOUS CONSTITUTIONAL QUESTIONS UNDER ARTICLE II AND SETTLED PRINCIPLES OF FEDERALISM THAT ARE PROPERLY AVOIDED BY READING IT AS A SAFE HARBOR . . . . . . . . 28 C. A DETERMINATION BY THIS COURT THAT THE DECISION BELOW DID NOT "COMPLY" WITH THE PROVISIONS OF SECTION 5 THUS CANNOT LEAD TO A JUDGMENT OF REVERSAL . . . . . . . . . . . . . . 30 ii III. THE FLORIDA SUPREME COURT DECISION SATISFIES THE CONDITIONS OF THE "SAFE HARBOR" PROVISION OF SECTION 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 IV. NEITHER FLORIDA'S SYSTEM FOR APPOINTING ELECTORS, NOR THE FLORIDA SUPREME COURT DECISION CONSTRUING THAT SYSTEM, VIOLATES ARTICLE II . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 V. NOTHING IN THE FLORIDA SUPREME COURT DECISION VIOLATES DUE PROCESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 iii TABLE OF AUTHORITIES Cases: Page(s) Adams v. Robertson, 520 U.S. 83 (1997) ............... 33 Advisory Opinion to Governor, 157 Fla. 885 (1946) ........................................................... 20 Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985) ........................................................... 29 Babbitt v. Sweet Home Chapter of Communities, 515 U.S. 687 (1995) ..................................... 16 Barancik v. Gates, 134 So. 2d 497 (Fla. 1961) ........ 15 Beckstrom v. Volusia County Canvassing Board, 707 So. 2d 720 (Fla. 1998) ..................... 15, 19 BFP v. Resolution Trust Corp., 511 U.S. 531 (1994) ........................................................... 16 Boardman v. Esteva, 323 So. 2d 259 (Fla. 1975) .... 15 Brinkerhoff-Faris Co. v. Hill, 281 U.S. 673 (1930) ........................................................... 48 Bush v. Palm Beach County Canvassing Bd., No. 00-836 (Nov. 24, 2000) ......................... 21 Cardinale v. Louisiana, 394 U.S. 437 (1969) ......... 33 iv Chisom v. Roemer, 501 U.S. 380 (1991) ................. 16 Christensen v. Harris County, 529 U.S. 576 (2000) ........................................................... 16 Commonwealth v. O'Connell, 181 S.W.2d 691 (Ky. Ct. App. 1944) ..................................... 39 Connecticut National Bank v. Germain, 503 U.S. 249 (1992) .................................................... 18 Dade County Classroom Teachers Association, Inc. v. Legislature of the State of Florida, 269 So. 2d 684 (Fla. 1972) ........................... 18 District of Columbia v. Pace, 320 U.S. 698 (1944) ........................................................... 16 Dreyer v. Illinois, 187 U.S. 71 (1902) ..................... 42 Eastern Enterprises v. Apfel, 524 U.S. 498 (1998) .................................................... passim Engle v. Isaac, 456 U.S. 107 (1982) ........................ 48 Fishgold v. Sullivan Drydock & Repair Corp., 154 F.2d 785 (CA2), aff'd, 328 U.S. 275 (1946) ........................................................... 16 Fitzgerald v. Green, 134 U.S. 377 (1890) ......... 43, 44 Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) ........... 16 v Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985) .................... 29 Green v. Bock Laundry Machine Co., 490 U.S. 504 (1989) .................................................... 16 Gregory v. Ashcroft, 501 U.S. 452 (1991) ............... 29 Growe v. Emison, 507 U.S. 25 (1993) ............... 37, 41 Growe v. Emison, No. 91-1420, 1991 U.S. LEXIS Briefs 1420 ............................................. 37, 41 Gryger v. Burke, 334 U.S. 728 (1948) ..................... 48 Harper v. Virginia Dept. of Taxation, 509 U.S. 86 (1993) ........................................................... 46 Hawke v. Smith, 253 U.S. 221 (1920) ................ 42, 43 Herndon v. Georgia, 295 U.S. 441 (1935) ......... 33-34 Highland Farms Dairy, Inc. v. Agnew, 300 U.S. 608 (1937) .................................................... 42 James B. Beam Distilling Co. v. Georgia, 501 U.S. 529 (1991) .................................................... 20 J.C. Penney Co. v. Commissioner, 312 F.2d 65 (CA2 1962) .................................................. 16 Leser v. Garnett, 258 U.S. 130 (1922) .................... 43 Logan v. Zimmerman Brush Co., 455 U.S. 422 vi (1982) ..................................................... 46, 47 Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) ..................................................... 18, 38 Markham v. Bennion, 252 P.2d 539 (Utah 1953) .................................................. 39 McClendoon v. Slater, 554 P.2d 774 (Okla. 1976) ............................................................ 39 McConihe v. State ex rel. McMurray, 17 Fla. 238 (1879) ........................................................... 19 McLavy v. Martin, 167 So. 2d 215 (La. Ct. App. 1964) ............................................................ 39 McNally v. United States, 483 U.S. 350 (1987) ........................................................... 17 McPherson v. Blacker, 146 U.S. 1 (1892) ............... 37 Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456 (1981) .................................................... 42 Ohio ex rel Davis v. Hildebrant, 241 U.S. 565 (1916) ........................................................... 36 Opinion of Justices, 45 N.H. 595 (1864) ................. 39 Opinion of Justices, 37 Vt. 665 (1865) .................... 39 Opinion of the Justices, 107 A. 705 (Maine 1919) ................................................ 39 vii Opinion of the Justices, 113 A. 293 (N.H. 1921) ............................................................ 39 Opinion of the Justices, 34 So. 2d 598 (Ala. 1948) ............................................................ 39 Pennhurst State School & Hospital v. Halderman 465 U.S. 89 (1984) .................................. 29-30 Roe v. Alabama, 43 F.3d 574 and 68 F.3d 404 (CA11 1995) ................................................ 46 Scott v. Germano, 381 U.S. 407 (1965) .............. 37-38 Smiley v. Holm, 285 U.S. 355 (1932) ............... passim Special Tax Sch. Dist. v. Florida, 123 So. 2d 316 (Fla. 1960) ................................................... 15 Stanford v. Butler, 181 S.W.2d 269 (Tex. 1944) ..... 39 State ex rel. Andrews v. Gray, 125 Fla. 1 (1936) ........................................................... 19 State ex rel. Chappell v. Martinez, 536 So. 2d 1007 (Fla. 1988) ........................................ 14, 15, 19 State ex rel. Dahlman v. Piper, 69 N.W. 378 (Neb. 1896) .................................................. 20 State ex rel. Drew v. McLin, 16 Fla. 17 (1876) ..................................................... 18, 20 viii State ex rel. Fair v. Adams, 139 So. 2d 879 (Fla. 1962) .................................................... 19 State ex rel. Knott v. Haskell, 72 So. 651 (Fla. 1916) ...................................................... 18, 20 State ex rel. Peacock v. Latham, 170 So. 475 (Fla. 1936) ......................................... 18-19, 20 State ex rel. Stephens v. Marsh, 221 N.W. 708 (Neb. 1928) .................................................. 20 State ex. rel. Titus v. Peacock, 170 So. 309 (Fla. 1936) ............................................................ 15 State v. Gibbs, 13 Fla. 55, 7 Am. Rep. 233 (1869) ........................................................... 15 State v. Marsh, 34 N.W.2d 279 (Neb. 1948) ........... 39 State v. Myers, 4 N.E.2d 397 (Ohio 1936) ............... 39 State v. Osborne, 125 P. 884 (Ariz. 1912) ............... 40 Street v. New York, 394 U.S. 576 (1969) ................. 33 Sweezy v. New Hampshire, 354 U.S. 234 (1957) .... 42 United States Department of Energy v. Ohio, 503 U.S. 607 (1992) ..................................... 18 United States v. American Trucking Associations, 310 U.S. 534 (1940) ..................................... 16 ix United States v. Estate of Romani, 523 U.S. 517 (1998) .................................................... 16 Walker v. United States, 93 F.2d 383 (CA8 1937) ...................................................... 43, 44 West Virginia University Hospitals v. Casey, 499 U.S. 83 (1991) ....................................... 16 Wisconsin Department of Revenue v. William Wrigley, Jr. Co., 505 U.S. 214 (1992) .... 17-18 Woods v. Sheldon, 69 N.W. 602 (S.D. 1896) .......... 20 Yee v. Escondido, 503 U.S. 519 (1993) ................... 33 Constitution: U.S. Const. art. I, § 4 ..................................... 28, 37-38 U.S. Const. art. I, § 8, cl. 18 ..................................... 28 U.S. Const. art. II § 1 ............................................... 12 U.S. Const. art. II, § 1, cl. 2 .............................. passim Fla. Const. art. V, § 1 ............................................... 31 Fla. Const. art. V, § 20( ) ......................................... 31 Legislative Materials: 15 Cong. Rec. 5078 (June 12, 1884) ........................ 32 x 15 Cong. Rec. 5079 (June 12, 1884) ........................ 23 15 Cong. Rec. 5461 (June 21, 1884) ........................ 32 15 Cong. Rec. 5462 (June 21, 1884) ....................... 32 15 Cong. Rec. 5547 (June 24, 1884) .................. 25-26 17 Cong. Rec. 1020 (Feb. 1, 1886) .................... 27, 32 17 Cong. Rec. 1023 (Feb. 1, 1886) .................. 23, 25 17 Cong. Rec. 1060-61 (Feb. 2, 1886) ..................... 26 17 Cong. Rec. 1064 (Feb. 2, 1886) .......................... 32 17 Cong. Rec. 816 (Jan. 21, 1886) ........................... 32 17 Cong. Rec. 867 (Jan. 25, 1886) ........................... 25 18 Cong. Rec. 30 (Dec. 7, 1886) ......................... 24-25 18 Cong. Rec. 47 (Dec. 8, 1886) ........................ 27-28 18 Cong. Rec. 75 (Dec. 9, 1886) .............................. 26 Statutes: 3 U.S.C. §§ 1-10 ........................................................ 7 3 U.S.C. § 5 ....................................................... passim 3 U.S.C. § 15 ..................................................... passim xi 28 U.S.C. §1257 ....................................................... 33 42 U.S.C. §§ 1973aa-1, 1973ff-2 ............................. 10 Selective Training and Service Act, 54 Stat. 885, 890 (expired 1947) .................. 16 Florida State Statutes: Fla. Stat. § 101.67 .................................................... 10 Fla. Stat. § 102.111 ........................................... passim Fla. Stat. § 102.112 ........................................... passim Fla. Stat. § 102.121 .................................................... 2 Fla. Stat. § 102.141(4) ................................................ 2 Fla. Stat. § 102.166 .......................................... 7, 9, 14 Fla. Stat. § 102.166(4) ....................................... passim Fla. Stat. § 102.166(5) ............................................ 3, 5 Fla. Stat. § 102.166(7) ............................................. 3-4 Fla. Stat. § 102.168 .............................................. 7, 20 Fla. Stat. § 102.171 .................................................. 20 Fla. Stat. § 103 ........................................................... 2 Fla. Stat. § 106.23 ..................................................... 5 xii Fla. Stat. § 110.112 .................................................... 9 Attorney General Opinions: 1989 Alaska Op. Att'y Gen. 85, 1989 WL 266932 (July 1, 1989) .................................. 40 1984 Ariz. Op. Att'y Gen. 51, No. I84-059, 1984 WL 61256 (April 20, 1984) ................ 41 1988 Ariz. Op. Att'y Gen. 93, No. I88-069, 1988 WL 249646 (June 27, 1988) ............... 41 Ark. Op. Att'y Gen. No. 94-366, 1994 WL 702001 (Nov. 21, 1994) ............... 21 Del. Op. Att'y Gen. 00-IB11, 2000 WL 1092964 (June 19, 2000) ............................................ 41 Kan. Op. Att'y Gen. 24 (May 18, 1992) ................. 41 Ky. Op. Att'y Gen., No. 00-1, 2000 WL 121765 (Jan. 11, 2000) ................................. 41 1979-80 Mass. Op. Att'y Gen. 98, 1979 WL 42140 (Oct. 29, 1979) ................................. 40 69 Md. Op. Att'y Gen. 133, 1984 WL 247042 (Jan. 6, 1984) ............................................... 41 Mich. Op. Att'y Gen., 1982 WL 183571 (June 16, 1982) ............................................. 41 Mich. Op. Att'y Gen., 6775, 1993 WL xiii 494593 (Nov. 18, 1993) ......................... 40-41 Miss. Op.Att'y Gen., 1980 WL 28870 (Oct. 28, 1980) ............................................................ 40 Miss. Op.Att'y Gen., 1980 WL 28885 (Oct. 27, 1980) ............................................................ 40 Miss. Op. Att'y Gen., 1999-0697, 1999 WL 1333481 (Dec. 22, 1999) ....................... 20, 21 Mo. Op. Att'y Gen., 179, 1980 WL 115003 (Aug. 22, 1980) .............................. 41 20 Okl. Op. Att'y Gen. 156, No. 88-68, 1988 WL 424327 (Oct. 4, 1988) .................. 41 42 Oreg. Op. Att'y Gen. 93, 1981 WL 152270 (Sept. 25, 1981) ............................................ 41 S.C. Op. Att'y Gen., 1960 WL 12012 (April 22, 1960) .......................................... 41 S.C. Op. Att'y Gen., 1960 WL 9016 (Sept. 21, 1960) ........................................... 41 S.C. Op. Att'y Gen., 1981 WL 158040 (Nov. 6, 1981) .............................................. 41 Tenn. Op. Att'y Gen., 79-525, 1979 WL 34133 (Dec. 11, 1979) ........................................... 41 Tenn. Op. Att'y Gen., 1980 WL 103680 (Feb. 5, 1980) .............................................. 41 xiv Tenn. Op. Att'y Gen., No. 81-460, 1981 WL 169408 (Aug. 18, 1981) ............................... 41 Tex. Op. Att'y Gen. JM-998, 1988 WL 406325 (Dec. 23, 1988) .............................. 41 Tex. Op. Att'y. Gen. JC-0293, 2000 WL 1515422 (Oct. 11, 2000) .............................. 21 1980-81 Va. Op. Att'y Gen., WL 101405 (Oct. 22, 1980) ............................................ 41 Att'y Gen. Op. No. 81-134, 1981 WL 155208 (Feb. 4, 1981) ............................................... 40 Law Journals: John W. Burgess, The Law of the Electoral Count, 3 Pol. Sci. Q. 633 (1888) ....................... 24, 26 Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527 (1947) ...... 16 Henry P. Monaghan, Marbury and the Administrative State, 83 Colum. L. Rev. 1 (1983) ............... 38 Daniel B. Rodriguez, The Presumption of Reviewability: A Study in Canonical Construction and its Consequences, 45 Vand. L. Rev. 743 (1992) ....................... 17 Stephen F. Ross, Where Have You Gone, Karl Llewellyn? Should Congress Turn its Lonely Eyes to You?, 45 Vand. L. Rev. xv 561 (1992) .................................................... 17 Antonin Scalia, Judicial Deference to AdministrativeInterpretations of Law, 1989 Duke L.J. 511 ............................................... 17 Administrative Rule: Fla. Div. Elec. Rule 1S 2.013 ................................... 35 Miscellaneous: Advisory Opinion DE 00-10 .................................... 17 William N. Eskridge, Jr., Dynamic Statutory Interpretation (1994) ................................... 17 William N. Eskridge, Jr. and Phillip P. Frickey, Cases and Materials on Legislation: Statutes and the Creation of Public Policy 634-716 (2d ed. 1995) ............................................................ 17 Alexander Hamilton, The Federalist No. 78 ............ 38 Paul L. Haworth, The Hayes-Tilden Disputed Presidential Election of 1876 (1906) ...... 23-24 Otto J. Hetzel, et al., Legislative Law and Process: Cases and Materials 389-91, 622-702 (2d ed. 1993) ............................................................ 17 Keith I. Polakoff, The Politics of Inertia: The Election of 1876 and the End of Reconstruction (1973) .................................. 24 xvi Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 26 (1997) ..................... 17 Cass R. Sunstein, After the Rights Revolution: Reconceiving the Regulatory State 150-57 (1990) ........................................................... 17 C. Vann Woodward, Reunion and Reaction: The Compromise of 1877 and the End of Reconstruction (1951) .................................. 24 STATEMENT OF THE CASE This case involves a decision of the Florida Supreme Court interpreting Florida's Election Code in accord with the laws and constitution of the State of Florida. Petitioner attempts to convert the state law issues decided by the Florida court into questions of federal law under 3 U.S.C. § 5, Article II, § 1, cl. 2 of the United States Constitution, and the Due Process Clause of the Fourteenth Amendment. But in fact the Florida court applied garden variety principles of statutory interpretation to resolve ambiguities and reconcile conflicting provisions within the Florida Election Code. Even if federal law had something to say about the scope of state judicial authority to construe state legislation, which it does not, the decision below effected no "change" in Florida law "which cannot be reconciled with state statutes enacted before the election." See Pet. i (Question Presented 2). In any event, petitioner flatly misreads the provisions of federal law on which he relies. Section 5 of Title 3 does not "require[]" the States to do anything, contrary to the phrasing of the first Question Presented, but merely offers to the states a safe harbor with respect to controversies regarding electors that might arise before Congress when the electoral votes are counted. As to the additional question framed by this Court, there can be no judicial remedy for failure to "comply" with Section 5. Moreover, Article II, § 1, cl. 2 does not cut into the authority of state courts to review and construe state election statutes under state law and thus would not be offended in this case even if the Florida Supreme Court had made "new" law. Nothing in the Constitution's several delegations of power to the "legislatures" of the States has ever been held to limit the role of the other branches of state government in the lawmaking process, including the authority of the state courts to act as final expositors of the meaning of the statutes enacted pursuant to those delegated powers. Nor would the decision below rise to the level of a due process violation, even if its construction of Florida law were wrong. Consequently, the judgment 2 below should be affirmed. 1. Background. On November 7, 2000, Florida citizens cast almost 6,000,000 ballots in the general election for President of the United States. Under Florida's election law, this election's outcome would determine which slate of electors would cast Florida's twenty- five electoral votes for President. Fla. Stat. § 103. The State Elections Canvassing Commission, which ordinarily is composed of the Governor, the Secretary of State, and the Director of the Division of Elections, is charged with certifying the results of statewide elections based on the "total number of votes cast for persons for said office." Fla. Stat. §§ 102.111(1), 102.121 (2000).1 The State Commission bases its certification on certifications submitted by the individual election canvassing boards of Florida's sixty-seven counties. Based on initial returns transmitted to it by the county canvassing boards on Wednesday, November 8, 2000, the Florida Division of Elections reported that petitioner Governor George W. Bush had received 2,909,135 votes for President and that respondent Vice- President Al Gore had received 2,907,351 votes. Because the margin between the two leading candidates was less than one-half of one percent of the total votes cast for that office, the provisions of Florida's election law relating to recounts and certification of election results required an automatic recount of the ballots. Fla. Stat. § 102.141(4). The Election Code does not mandate any specific process for conducting this recount. Most counties simply repeated whatever process, usually a machine count, they had used to tabulate the ballots initially. Others, however, conducted manual recounts. At the end of this initial automatic recount, the margin between candidates Gore and Bush was reduced On November 8, 2000, Florida Governor Jeb Bush removed himself from 1 the commission. See Pet. App. at 14a n.17. 3 from the initially stated 1,784 votes to 300 votes. To recheck the results, Florida law provides that counties may conduct a further manual recount to address any "error in the vote tabulation which could affect the outcome of the election." Fla. Stat. § 102.166(5). Any candidate "may file a written request with the county canvassing board for a manual recount" "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." Id. § 102.166(4)(a), (b). The request must "contain a statement of the reason the manual recount is being requested." Id. § 102.166(4)(a). If a county canvassing board grants a request for a manual recount, it need not initially order such a manual recount county-wide. Rather, an initial manual recount need only "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." Fla. Stat. § 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. Id. § 102.166(5) (emphasis added). These procedures for conducting manual recounts require that the 4 county canvassing board appoint counting teams of at least two electors who are members of different political parties. Fla. Stat. § 102.166(7). If a counting team is unable to determine a voter's intent in casting a ballot, the ballot must be "presented to the county canvassing board for it to determine the voter's intent." Id. § 102.166(7)(a)-(b). After the automatic statewide recount reduced the margin between Governor Bush and Vice-President Gore to 300 votes, petitioner declined to request a manual recount in any county. The Florida Democratic Party requested a manual recount in four Florida counties: Palm Beach, Volusia, Broward, and Miami-Dade. Two of those counties, Palm Beach and Broward, are parties to the instant litigation. Pursuant to those requests and the requirements of Section 102.166(4)(d), the county canvassing boards of those counties conducted a sample manual recount of one percent of the total votes cast in their respective counties.2 Both Palm Beach County and Broward County employ a punch car 2 d 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 appear on the ballot. Voters are 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 a stylus into the hole next to their candidate of choice. The aim of the voting machine design is that the stylus 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 generally will later be able to count the votes reflected on the ballot. Unfortunately, a chad does not always fully separate from a ballot when punched by a stylus. The chad may only partially detach from the card, or, if the voting machine is old or has become clogged with chads from previous voters, the ballot may only be indented, or "dimpled." The machine reader will not be able to read the ballot. Such uncounted ballots are called "undervotes." Because of the high percentage of undervotes created by punch card voting systems, the vast majority 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 10,750 ballots. 5 At the conclusion of those initial recounts, each of the four county canvassing boards 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. Concerned that it would not be able to complete the full county recount in time, the Palm Beach County Canvassing Board, pursuant to Section 106.23, sought an advisory opinion from the Division of Elections of the Florida Department of State. The Division of Elections responded by issuing Advisory Opinion DE 00-10, stating that all county returns had to be received by November 14. Secretary of State Katherine Harris then issued a statement on Monday, November 13, announcing that she would not accept any county vote certifications received after 5:00 p.m. on November 14. On that date, she issued two further opinions. In one, she stated that manual recounts were authorized under Florida law only when there existed a software defect or mechanical error in the vote tabulation equipment. In the other, she asserted that undertaking statutorily authorized manual recounts would not excuse a failure to comply with the 5:00 p.m. deadline for transmitting results. Later that day, the Attorney General of Florida issued an opinion squarely disagreeing with the Secretary of State's conclusion that a recount could be authorized only on the basis of a "voting tabulation error" caused by a defect in the machine itself. 2. Procedural History of This Litigation. On November 13, 2000, Volusia County, joined later by Palm Beach County, filed an action in the Circuit Court of the Second Judicial Circuit in Leon County, seeking a declaratory judgment that the county was not bound by the November 14, 2000, deadline set by the Secretary of State for submitting certified vote totals and requesting an injunction Absent a manual recount, the votes reflected on these ballots would not be counted in the election. 6 prohibiting the Secretary from ignoring election returns resulting from manual recounts authorized by Florida law but submitted after that date. Candidates Gore and Bush both intervened. On November 14, the Leon County Circuit Court held that, although the county canvassing boards were required in the first instance to comply with the statutory deadline, they could file supplemental returns reflecting the outcome of hand recounts. Pet. App. at 44a-50a. The court enjoined the Secretary against preemptive rejection of supplemental certificates, admonishing her that she could not "decide ahead of time what late returns should or should not be ignored," but was instead required "to exercise her discretion" and "consider[] all attendant facts and circumstances" before deciding whether to accept revised or amended returns. Pet. App. at 48a-50a. The counties appealed this first order to the First District Court of Appeals. In response to the Leon County Circuit Court's order, Secretary Harris issued a directive requiring that all counties intending to submit late returns inform her of that fact and of the reasons for the late returns by 2:00 p.m. on Wednesday, November 15. Four counties did so. The Secretary again rejected the amended returns and announced that she would rely on the earlier certified totals for the four counties. The Florida Democratic Party and Vice-President Gore filed a motion in the Leon County Circuit Court seeking to enforce that court's prior injunction against the Secretary. On Friday, November 17, the Leon County court ruled that the Secretary's actions had not violated the court's injunction. Pet. App. at 42a-43a. The Florida Democratic Party and Vice-President Gore appealed this second order, and the First District Court of Appeals certified both appeals for immediate review by the Florida Supreme Court. 3. The Florida Supreme Court. On Tuesday, November 21, 2000, after full briefing and oral argument, the Florida Supreme Court issued a unanimous opinion interpreting the Florida Election Code and pointedly noting that "[n]either party has raised as an issue 7 on appeal the constitutionality of Florida's election laws." Pet. App. at 10a n.10. The court interpreted the Florida Election Code to require county canvassing boards to submit their returns to the Secretary of State by 5:00 p.m. of the seventh day following the election, pursuant to Section 102.111. Id. But the court eliminated the resulting incoherence in the statutory scheme by further holding that the county boards may also submit subsequent amended returns to reflect statutorily authorized recounts under Section 102.166, which the Secretary may reject only if they come so late as to preclude a candidate, elector, or taxpayer from contesting the certification of an election pursuant to Section 102.168, or to prevent Florida voters from participating fully in the federal electoral process pursuant to 3 U.S.C. §§ 1-10. Pet. App. at 33a n.55. The court reached this result by applying familiar principles of statutory construction to resolve the textual ambiguities and gaps in the Florida Election Code, guided by an appreciation of the importance of the right to vote under Florida's constitution and laws. The court began by explaining that, "[w]here the language of the Code is clear and amenable to a reasonable and logical interpretation, courts are without power to diverge from the intent of the Legislature as expressed in the plain language of the Code." Pet. App. at 23a. "[H]owever, chapter 102 is unclear concerning both the time limits for submitting the results of a manual recount and the penalties that may be assessed by the Secretary." Id. "In light of this ambiguity, the Court must resort to traditional rules of statutory construction in an effort to determine legislative intent." Id. at 24a. The ambiguity identified by the state supreme court arose from two Florida statutes that define the obligation of the county canvassing boards to transmit their certifications to the Secretary of State. Section 102.111 provides that county returns must be transmitted to the Secretary of State no later than 5:00 p.m. of the seventh day following the election and that any missing counties "shall be ignored." (Emphasis added). By contrast, Section 8 102.112(1), which the Florida legislature enacted subsequently, provides that any county returns not received by 5:00 p.m. on the seventh day "may be ignored." (Emphasis added). Further, Section 102.166 (the "protest" provision) grants a candidate the statutory right to request a manual recount at any point prior to certification by a canvassing board, and such action can lead to a full recount of all votes in the county. The Florida Supreme Court observed that "logic dictates that the period of time required to complete a full manual recount may be substantial, particularly in a populous county, and may require several days." Pet. App. at 21a. The court held that the protest provision thus conflicted with any reading of Section 102.111 that imposed an unalterable deadline. "For instance, if a party files a pre-certification protest on the sixth day following the election and requests a manual recount and the initial recount indicates that a full countywide recount is necessary, the recount procedure in most cases could not be completed by * * * 5:00 p.m. of the seventh day following the election." Pet. App. at 21a. The Florida Supreme Court applied four traditional canons of construction to resolve the ambiguity of the Election Code: "First, it is well-settled that where two statutory provisions are in conflict, the specific statute controls the general." Pet. App. at 24a n.42 (citing State ex rel. Johnson v. Vizzini, 227 So. 2d 205 (Fla. 1969)). The court found that Section 102.111 (the "shall" provision) addresses the general makeup and duties of the Elections Canvassing Commission, and "only tangentially addresses the penalty for returns filed after the statutory date." Id. at 25a. Section 102.112 (the "may" provision), by contrast, "constitutes a specific penalty statute that defines both the deadline for filing returns and the penalties for filing returns thereafter * * * ." Id. (Emphasis added). "Second, it is also well-settled that when two statutes are in conflict, the more recently enacted statute controls the older statute." 9 Pet. App. at 25a (citing McKendry v. State, 641 So. 2d 45 (Fla. 1994)). Section 102.112 ("may") was enacted in 1989; Section 102.111 ("shall") was enacted almost four decades earlier, in 1951. Id. "Third, a statutory provision will not be construed in such a way that it renders meaningless or absurd any other statutory provision." Pet. App. at 26a. Section 102.112 contains a detailed provision authorizing the assessment of fines against the members of a dilatory county canvassing board. "If, as the Secretary asserts, the Department were required to ignore all returns received after the statutory date, the fine provision would be meaningless." Id. "For example, if a Board simply completed its count late and the returns were going to be ignored in any event, what would be the point in submitting the returns? The Board would simply file no returns and avoid the fines. But, on the other hand, if the returns submitted after the statutory date would not be ignored, the Board would have good reason to submit the returns and accept the fines." Id. at 24a-25a. "Fourth, related statutory provisions must be read as a cohesive whole." Pet. App. at 25a (citing Sun Ins. Office, Ltd. v. Clay, 133 So. 2d 735 (Fla. 1961)). The court held that reading Section 102.111 as an iron-clad deadline would conflict with the protest right provided in Section 102.166, because in many cases a full manual recount obviously could not be completed by 5:00 p.m. on the seventh day after the election. Id. at 26a. In addition, overseas ballots cannot be counted until after the seven-day deadline has expired. Id. at 27a. Based on these principles, the court held that the permissive language of Section 110.112 necessarily superseded the apparently mandatory language of Section 102.111. See Pet. App. at 2a n.1. The court explained that "we have used traditional rules of statutory construction to resolve these ambiguities to the extent necessary to address the issues presented here. We decline to rule more 10 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. at 37a (emphasis added). Having determined that the Secretary was permitted to accept returns filed after the deadline, and in light of the importance of the right to vote under the Florida Constitution, Pet. App. at 29a, the court also determined the scope of the Secretary's discretion to "ignore" returns submitted after the seven-day period for initial certification. 3The court concluded that, under the statutory scheme, the manual recounts should be "allowed to proceed in an expeditious manner." Id. at 32a. It noted that ­ as all must concede ­ "[i]gnoring the county's returns is a drastic measure," id., and it held that the Secretary's discretion to reject "amended returns that would be the result of ongoing manual recounts" provided for by state law, id. at 34a, was limited to "returns * * * 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 election process." Id. at 35a. The court invoked its standard equitable powers to ensure the counting of all lawfully cast votes while allowing adequate time to satisfy Florida's contest provisions and federal electoral college deadlines. Pet. App. at 37a-38a. After noting that the court at oral argument had inquired whether the presidential candidates were interested in the court's consideration of reopening the opportunity for recounts in additional counties, and that neither candidate had 3 In fact, the Secretary admits both that she has discretion not to reject untimely certifications and that she does not apply that deadline to overseas absentee ballots. Although the Secretary contends that she is required to accept such ballots for ten days after the election because of federal law, both Florida law and federal law require that absentee ballots be received by the date of the election. See Fla. Stat. § 101.67; 42 U.S.C. §§ 1973aa-1, 1973ff-2. See note 22, infra. 11 requested such an opportunity, id. at 38a n.56, the court set deadlines designed to protect the interests of candidates in contesting certification, and the interests of Florida's voters in being able to participate in the electoral college process. Specifically, the court ruled that the Secretary should accept amended certificates reflecting manual recounts if they were filed by 5:00 p.m. on Sunday, November 26. On November 22, the Miami-Dade County Canvassing Board announced that it would not conduct a manual recount because it could not comply with the November 26 deadline. On November 26, the Secretary of State denied a request by the Palm Beach County Canvassing Board for an extension until the morning of November 27 to complete its manual recount. Palm Beach County then submitted the results of its partially completed manual recount, which the Secretary refused to accept. At approximately 7:30 p.m. on November 26, 2000, the Secretary of State certified that George W. Bush had received 2,912,790 votes in Florida and Al Gore, Jr., 2,912,253 ­ a difference of 537 votes. SUMMARY OF ARGUMENT This dispute over the Florida Supreme Court's interpretation of the Florida Election Code is a state-law case that, despite its undoubted importance, does not belong in federal court. The process legislatively adopted by Florida for resolving disputes regarding the appointment of electors includes state judicial review. Principles of federalism counsel strongly against interference by this Court, or any federal court, in that process. The federal claims purportedly presented by petitioner are insubstantial. I. The entire petition rests on intemperate and insupportable mischaracterizations of the Florida Supreme Court's decision as usurping the role of the state legislature. In fact, the Florida court played a familiar and quintessentially judicial role: it interpreted Florida law "us[ing] traditional rules of statutory construction to 12 resolve [statutory] ambiguities." Pet. App. at 37a. Hence, this case does not in fact present the first two questions framed by petitioner. II. Even if the Florida Supreme Court's decision could be said to have "enact[ed]" new law (first Question Presented) or to be irreconcilable "with state statutes enacted before the election was held" (second Question Presented), the court's decision did not violate 3 U.S.C. § 5 for the simple reason that Section 5 does not impose any mandate or requirement on the States ­ nor could it do so consistent with Article II, § 1 or settled principles of federalism. Properly understood, Section 5 merely offers the States a safe harbor with respect to a hypothetical controversy that has not yet arisen ­ a dispute over electors that might arise before Congress when the electoral votes are counted. Accordingly, apropos the additional question framed by this Court, there can be no judicial remedy for failure to comply with Section 5. III. In any event, the Florida Supreme Court's decision complies with 3 U.S.C. § 5. Section 5 offers a safe harbor to determinations that are made "by judicial or other methods or procedures" "provided[] by laws enacted prior to" election day. Florida meets this test because it has long provided, under laws enacted prior to November 7, 2000, for judicial resolution of disputes regarding questions of state law, including those relating to the appointment of presidential electors. IV. The Florida Supreme Court's decision also is entirely consistent with Article II, § 1, cl. 2 of the United States Constitution, which provides that "Each State shall appoint" electors "in such Manner as the Legislature thereof may direct." This provision neither displaces the state judiciary nor forbids it from undertaking statutory interpretation pursuant to state law. Thus, where a state legislature has enacted an election code (as Florida has), nothing in Article II, § 1, cl. 2 prevents the state courts from playing whatever interpretive 13 role state law grants to them. V. Finally, nothing in the Florida Supreme Court's decision raises due process concerns of "retroactive" changes in state law. To the contrary, due process is furthered by ensuring, as the Florida Supreme Court has attempted to do, that as many votes as possible are fairly and accurately counted. ARGUMENT I. THE FLORIDA SUPREME COURT'S DECISION DID NOT ABROGATE EXISTING FLORIDA STATU-TORY LAW. Petitioner's claims ­ under 3 U.S.C. § 5, Article II, and the Due Process Clause ­ are all premised on his thesis that the Florida Supreme Court retroactively altered the Florida legislature's scheme for counting ballots cast in the presidential election. As we will demonstrate below, these provisions of federal law are not bases for invalidating a construction of state law by the state courts with which petitioner, or even this Court, disagrees. Petitioner's repeated attempts to persuade this Court that the Florida Supreme Court misapplied state law, e.g., Reply Br. On Pet. for Certiorari [hereinafter "Pet. Rep."] at 6 (state court decision "deviate[d]" from state law), accordingly, cannot state the basis for a federal claim. But before exploring the weakness of petitioner's specific claims, we address the assumption that underlies all of petitioner's Questions Presented ­ namely, that the decision of the Florida Supreme Court somehow created a "new legal rule" that amended Florida law in "retroactive" fashion. That is simply not so. The decision by the Florida Supreme Court was an ordinary exercise in statutory interpretation, admittedly dealing with an important and hotly contested issue, but one governed by state laws that long antedate this election. The decision therefore could not be the sort of "new legal rule" that could possibly offend the Due Process Clause or 14 Article II, § 1, cl. 2, or take Florida out of the safe harbor of 3 U.S.C. § 5. Whether one agrees or disagrees with the decision as a matter of Florida law, it cannot be denied that the court applied ordinary principles of judicial interpretation to a complex statutory scheme. The state supreme court addressed the seven-day deadline for filing certified results set out in Sections 102.111 and 102.112, seeking to resolve a patent conflict between one provision saying that returns filed after seven days "shall" be ignored and another saying that those returns "may" be ignored. Reading Section 102.111 to create an absolute, inflexible deadline, the court held, would do violence to Section 102.112, which is the later-enacted, more specific provision addressing both the deadline for filing returns and the penalties for filing returns thereafter. It would be incorrect as a matter 4 of statutory interpretation to override Section 102.112 with the earlier, more general provision of Section 102.111, which is directly concerned not with the deadline for filing returns but rat