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 FOR PETITIONERS MICHAEL A. CARVIN THEODORE B. OLSON COOPER, CARVIN & Counsel of Record ROSENTHAL, P.L.L.C. DOUGLAS R. COX 1500 K Street, N.W. THOMAS G. HUNGAR Suite 200 GIBSON, DUNN & CRUTCHER LLP Washington, D.C. 20005 1050 Connecticut Avenue, N.W. (202) 220-9600 Washington, D.C. 20036 (202) 955-8500 BARRY RICHARD GREENBERG TRAURIG, P.A. BENJAMIN L. GINSBERG 101 East College Avenue PATTON BOGGS LLP Post Office Drawer 1838 2550 M Street, N.W. Tallahassee, FL 32302 Washington, D.C. 20037 (850) 222-6891 (202) 457 -6000 [Additional counsel listed on inside front cover] Counsel for Petitioners GEORGE J. TERWILLIGER III WILLIAM K. KELLEY TIMOTHY E. FLANIGAN Notre Dame Law School WHITE & CASE LLP Notre Dame, IN 46556 601 13th Street, N.W. Washington, D.C. 20005 JOHN F. MANNING (202) 626-3600 435 W. 116th Street New York, N.Y. 10027 BRADFORD R. CLARK 2000 H Street, N.W. Washington, D.C. 20052 i QUESTIONS PRESENTED 1. Whether the Florida Supreme Court erred in es- tablishing new standards for resolving presidential elec- tion contests that conflict with legislative enactments and thereby violate Article II, Section 1, Clause 2 of the United States Constitution, which provides that electors shall be appointed by each State "in such Manner as the Legislature thereof may direct." 2. Whether the Florida Supreme Court erred in es- tablishing post-election, judicially created standards that threaten to overturn the certified results of the election for President in the State of Florida and that fail to com- ply with the requirements of 3 U.S.C. § 5, which gives conclusive effect to state court determinations only if those determinations are made "pursuant to" "laws en- acted prior to" election day. 3. Whether the use of arbitrary, standardless and se- lective manual recounts to determine the results of a presidential election, including post-election, judicially created selective and capricious recount procedures that vary both across counties and within counties in the State of Florida, violates the Equal Protection or Due Process Clauses of the Fourteenth Amendment. ii PARTIES TO THE PROCEEDING The following individuals and entities were parties to the proceeding in the court below: Governor George W. Bush, as Nominee of the Re- publican Party of the United States for President of the United States; Richard Cheney, as Nominee of the Re- publican Party of the United States for Vice President of the United States; Albert Gore, Jr., as Nominee of the Democratic Party of the United States for President of the United States; Joseph I. Lieberman, as Nominee of the Democratic Party of the United States for Vice President of the United States; Katherine Harris, as Sec- retary of State, State of Florida; Katherine Harris, Bob Crawford, and Laurence C. Roberts, individually and as members of the Florida Elections Canvassing Commis- sion; the Miami-Dade County Canvassing Board; Law- rence D. King, Myriam Lehr and David C. Leahy as members of the Miami-Dade Canvassing Board; 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 alterna- tive Marianne P. Marshall), as members of the Nassau County Canvassing Board; 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 Can- vassing Board; Theresa LePore individually and as Su- pervisor of Elections; and Stephen Cruce, Teresa Cruce, Terry Kelly, Jeanette K. Seymour, Matt Butler, John E. Thrasher, Glenda Carr, Lonnette Harrell, Terry Richard- son, Gary H. Shuler, Keith Temple, and Mark A. Tho- mas, as Intervenors. iii TABLE OF CONTENTS Page QUESTIONS PRESENTED ...............................................i PARTIES TO THE PROCEEDING .................................ii OPINIONS BELOW ...........................................................3 JURISDICTION ..................................................................3 CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED...................................................4 STATEMENT OF THE CASE..........................................4 A. Florida's Election Laws As Of Nov- ember 7 ............................................................4 B. State Court Proceedings Leading To Extension Of The Certification Dead- line....................................................................6 C. This Court's Prior Decision..........................7 D. The Election Contest......................................8 E. The Florida Supreme Court's Deci- sion.................................................................11 SUMMARY OF ARGUMENT .......................................16 ARGUMENT .....................................................................19 I. The Decision Of The Florida Supreme Court Violates Article II Of The Consti- tution .....................................................................19 A. The Decision Below Overrides Num- erous Provisions Of Florida Election Law.................................................................21 iv TABLE OF AUTHORITIES (Continued) Page(s) B. Article II Precludes The Florida Su- preme Court's Exercise Of Jurisdic- tion..................................................................28 C. The Florida Supreme Court's Deci- sion Is Improperly Predicated On Its Now-Vacated Opinion Of November 21, Perpetuating Its Article II Errors..........31 II. The Florida Supreme Court's Decision Conflicts With 3 U.S.C. § 5 ...............................33 III. The Florida Supreme Court's Decision Violates Equal Protection And Due Pro- cess Guarantees....................................................40 A. Equal Protection ...........................................40 B. Due Process...................................................45 CONCLUSION..................................................................50 BRIEF FOR PETITIONERS On December 4, 2000, this Court unanimously va- cated the Florida Supreme Court's November 21 judicial revision of Florida's election laws. Bush v. Palm Beach County Canvassing Board, No. 00-836 (U.S. Dec. 4, 2000). The Court remanded for further proceedings not inconsistent with its concerns regarding the Florida court's awareness of and compliance with federal consti- tutional and statutory constraints on the authority of the Florida judiciary to revise the Florida Legislature's method for appointing presidential electors. Id. Just four days later, without a single reference to this Court's December 4 decision, the majority of the Florida Supreme Court announced sweeping and novel procedures for recounting selected Florida ballots to de- termine anew the winner of the November 7 presidential election in Florida. This latest manual recount regime would be conducted according to varying-and unspeci- fied-standards, by officials unspecified in Florida's election law, and according to an ambiguous and appar- ently unknowable timetable. The Florida court's whole- sale revision of Florida statutory law, adopted in part to address the problems flowing from its earlier abandon- ment of the system crafted by the Florida Legislature, ignores the obviously intertwined nature of the protest and contest provisions and overrides numerous legisla- tive choices embodied in the Florida Election Code. The decision below acknowledges, but fails to ad- here to, Article II, § 1, cl. 2 of the federal Constitution, which vests plenary and exclusive authority in the Flor- ida Legislature to determine the manner of selecting Florida's electors. And, while the Florida court stated that it was "cognizant" of 3 U.S.C. § 5, which creates a "safe harbor" allowing a State to afford conclusive ef- fect to its choice of presidential electors, it completely rewrote the Florida Legislature's pre-election laws de- signed to take advantage of that provision. The court's 2 newly devised scheme for re-tabulating votes is plainly arbitrary, capricious, unequal, and standardless. The court below not only failed to acknowledge that its earlier decision had been vacated, it openly relied on manual recounts that had occurred only because of that opinion as a predicate for changing the Secretary of State's certification of the election and as the foundation for its state-wide recount plan. It compounded that manifest overreaching by overriding its own "equitable" deadlines, created two weeks ago, as well as the legisla- ture's carefully wrought timetable. The Florida court's decision imposes its decree on counties that were never part of the proceedings below, overrides statutory authority explicitly vested in the state's chief election officer and local canvassing boards, designates new officials to supervise in place of the officials specified in Florida's election code to dis- charge that function, establishes a standard for the insti- gation of recounts not recognizable under Florida law, requires manual recounts of "under-voted" but not "over-voted" ballots, and mandates inconsistent recounts within certain counties, in violation of fundamental principles of equal protection and due process. The unconstitutional flaws in the Florida Supreme Court's judgment immediately bore further unconstitu- tional fruit when the trial court attempted to implement the supreme court's decision, which effectively man- dated the creation of an entirely new set of arbitrary and unreviewable ad hoc procedures that are flatly incom- patible with the legislature's judgments regarding the conduct and timing of manual recounts and its delega- tion of authority to the Secretary of State to ensure uni- formity in election procedures. See Petitioners' Sup- plemental Mem. In Support Of Emergency Application, No. 00A-504 (filed Dec. 9, 2000). The trial court ex- plicitly acknowledged it was creating a two-tier system, one for Dade County and one for "the rest of the coun- ties in the state." Hearing Tr. at 5 (attached to Petition- 3 ers' Supplemental Mem.). In the interest of making the recounts "go as smoothly as possible," the trial court precluded parties from objecting to the interpretation or allocation of individual ballots in the course of the re- counts. Id. at 8. The trial court called for county can- vassing boards throughout the state to create new "pro- tocols" for the recounts. Id. And the trial court explic- itly acknowledged that there were to be no specific, uni- form standards to guide the recounts. Id. at 10. This case is the quintessential illustration of what will inevitably occur in a close election where the rules for tabulating ballots and resolving controversies are thrown aside after the election and replaced with judi- cially created ad hoc and post hoc remedies without re- gard for uniformity, objectivity, or finality. The Florida Supreme Court has not only violated the Constitution and federal law, it has created a regime virtually guaran- teed to incite controversy, suspicion, and lack of confi- dence not only in the process but in the result that such a process would produce. OPINIONS BELOW The opinion of the Supreme Court of Florida below (Pet. App. 1a-56a) is not yet reported. The order of the Circuit Court for the County of Leon, Florida (Pet. App. 57a) is not reported. The November 21, 2000 opinion of the Supreme Court of Florida in Palm Beach County Canvassing Board v. Harris (Pet. App. 66a-100a), is re- ported at __ So. 2d __, 2000 WL 1725434 (Fla. Nov. 21, 2000). JURISDICTION The judgment of the Supreme Court of Florida was entered on December 8, 2000. The jurisdiction of this Court rests upon 28 U.S.C. § 1257(a). See Applic. for Stay, No. 00A504, at 16-19. Petitioners seek reversal of the Supreme Court of Florida's decision, which, as ex- 4 plained below, violates Article II of the United States Constitution, 3 U.S.C. § 5, and the Fourteenth Amend- ment to the Constitution, and irreconcilably conflicts with this Court's decision in Bush v. Palm Beach County Canvassing Board, No. 00-836 (Dec. 4, 2000). CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED The pertinent constitutional and statutory provisions are set forth at Pet. App. 127a-145a. STATEMENT OF THE CASE According to the initial count and statutory recounts of the Florida election results, Governor Bush received more votes for President than did Vice President Gore. Nevertheless, more than a month after the November 7 presidential election, the outcome of that election re- mains shrouded in uncertainty, confusion, and intense controversy. The thirty-three days since the election have been characterized by widespread turmoil resulting from selective, arbitrary, changing, and standardless manual recounts of ballots in four Florida counties pur- suant to requests made on behalf of Democratic presi- dential candidate Vice President Gore. The tide of liti- gation flowing from that fatally flawed process has re- sulted in decisions of the Florida Supreme Court that rewrite substantial portions of Florida's Election Code in a dramatic and unconstitutional departure from the scheme enacted by the legislature-a departure that threatens Florida's ability to obtain the finality and cer- tainty that the Florida Legislature intended to achieve and that compliance with 3 U.S.C. § 5 provides. A. Florida's Election Laws As Of November 7 Prior to November 7, 2000, pursuant to the authority conferred on it by Article II of the United States Consti- tution and 3 U.S.C. § 5, the Florida Legislature had en- 5 acted a comprehensive and carefully interwoven statu- tory plan and set of procedures and timetables to govern the appointment of presidential electors, the conduct of elections, and the timely resolution of disputes and con- troversies related thereto. Shortly after a presidential election, each Florida county's canvassing board is responsible for counting and certifying the election returns and forwarding them to the Florida Department of State. Fla. Stat. § 102.141. Florida's Secretary of State "is the chief election officer of the State" with responsibility to "[o]btain and main- tain uniformity in the application, operation, and inter- pretation of the election laws." Fla. Stat. § 97.012(1). "[A]s soon as the official results are compiled from all counties," the statewide Elections Canvassing Commis- sion-comprising the Governor, the Secretary of State, and the Director of the Division of Elections-is re- quired to "certify the returns of the election and deter- mine and declare who has been elected for each office." Fla. Stat. § 102.111(1). The legislative scheme contains two provisions mandating that local county canvassing boards must cer- tify their election returns to the Department of State no later than 5:00 p.m. on the seventh day following the election. Fla. Stat. §§ 102.111, 102.112. Section 102.112 further provides that returns filed after that deadline "may" be ignored by the Secretary of State. Florida law provides that, prior to the seven-day cer- tification deadline, disputes over election results may be raised by submitting a "protest" to the county canvass- ing boards, see Fla. Stat. § 102.166(1)-(2), and/or a re- quest for a manual recount, id. § 102.166(4)-(10). The county canvassing boards have the discretion to reject or accept the request for a recount. Id. § 102.166(4)(c). If the canvassing board decides to perform a manual re- count, it may first conduct a sample manual recount. Id. § 102.166(4)(d). If the sample manual recount indicates "an error in the vote tabulation which could affect the 6 outcome," the county canvassing board may correct the error and recount remaining precincts with the vote tabulation system, request verification of the tabulation software, or "[m]anually recount all ballots." Id. § 102.166(5). If the canvassing board chooses to embark on a manual recount, the board "shall appoint as many count- ing teams of at least two electors as is necessary to manually recount the ballots," Fla. Stat. § 102.166(7)(a), and "[i]f the counting team is unable to determine a voter's intent in casting a ballot, the ballot shall be pre- sented to the county canvassing board for it to determine the voter's intent," id. at (7)(b). B. State Court Proceedings Leading To Exten- sion Of The Certification Deadline Although both the initial results of the November 7 election and a statewide machine recount of the ballots showed that Governor Bush and Secretary Cheney had received the most votes in the presidential election in Florida, a manual recount in four selected counties was requested on behalf of Vice President Gore and Senator Lieberman (the "Gore respondents"). On November 13, 2000, respondent Gore and others brought suit in state court, seeking to compel the Secretary of State to waive the November 14 deadline established by Florida stat- utes for certifying Florida's presidential election results. That suit sought to require the inclusion in certified to- tals of the results of manual recounts then contemplated or ongoing in Broward, Miami-Dade, and Palm Beach Counties. The circuit court denied that relief on No- vember 17, concluding that the Secretary of State had exercised "reasoned judgment" in declining to accept late returns. On November 21, the Florida Supreme Court re- versed the circuit court and declared for the first time in Florida law that "the Secretary may reject a Board's amended returns only if the returns are submitted so late 7 that their inclusion will preclude a candidate from con- testing the certification or preclude Florida's voters from participating fully in the federal electoral process." Pet. App. 97a. The Florida Supreme Court accordingly di- rected the Secretary of State to accept untimely manual recount returns through 5:00 p.m. on November 26, 2000-twelve days after the statutory deadline-and di- rected the Secretary to include in her certifications all manual recount returns received by that date. Id. at 99a. Manual recounts thus occurred after November 14 to varying degrees in Broward, Palm Beach, and Miami- Dade counties, and results from Broward County's manual recount were submitted to the Secretary of State on November 25. Pet. App. 116a. On November 22, the Miami-Dade County Canvassing Board unanimously decided to halt its manual recount, after counting only 136 of the 635 precincts in the county. Id. at 59a. The Palm Beach Canvassing Board began a manual recount, but did not complete its work by the 5:00 p.m. Novem- ber 26 deadline set by the Florida Supreme Court. The Board instead submitted partial returns at that time and later supplemented them. Id. at 60a. As of 5:00 p.m. on November 26, the tabulated re- sults showed for the third time that Governor Bush had received the most votes for President. Accordingly, the Secretary of State certified those returns and the Elec- tion Canvassing Commission declared Governor Bush the winner of Florida's presidential election. C. This Court's Prior Decision On November 22, Governor Bush filed a petition for certiorari seeking review in this Court of the Florida Su- preme Court's November 21 decision. On December 4, 2000, this Court issued a unanimous per curiam opinion, vacating that decision and remanding the case "for fur- ther proceedings not inconsistent with this [Court's] opinion." Bush, slip op. at 6. This Court decided "to decline at this time to review the federal questions" 8 raised by petitioners because of uncertainty as to the grounds for the decision below. Id. (emphasis added). But this Court cautioned the court below against over- riding the Florida Legislature's "wish" to secure for Flo- ridians the benefits of the "safe harbor" accorded by 3 U.S.C. § 5, see Bush, slip op. at 6, and expressly di- rected the court below to explain "the extent to which [it] saw the Florida Constitution as circumscribing the legislature's authority under Art. II, § 1, cl. 2" and "the consideration [it] accorded to 3 U.S.C. § 5." Id. at 7. The Florida Supreme Court has not yet issued an opin- ion in that case on remand. D. The Election Contest Candidates and voters are permitted by Florida law to "contest" the certification of an election by filing a complaint in circuit court. See Fla. Stat. §§ 102.168, 102.1685. Such contests must be initiated within 10 days of the certification, see Fla. Stat. § 102.168(2), and involve judicial proceedings, including formal plead- ings, discovery, and trial. Fla. Stat. § 102.168(3)-(8). On November 27, 2000, the day after Governor Bush was certified as the winner of the November 7 presidential election in Florida, the Gore respondents filed a complaint in the Circuit Court for Leon County to contest that certification. Like the earlier protest ac- tions, the complaint sought relief primarily with respect to a handful of heavily Democratic counties. The com- plaint alleged that the results certified by the Secretary of State improperly (1) failed to include a partial manual recount of ballots in Miami-Dade County; (2) failed to include untimely results of a manual recount in Palm Beach County; and (3) included the results from Nassau County's original machine count of ballots. The Gore respondents further asked the court to evaluate ballots in Palm Beach County and Miami-Dade County that the Gore respondents contended were not properly counted. In response, Governor Bush and Secretary Cheney ar- 9 gued inter alia that the relief sought by the Gore respon- dents would violate federal statutes and the United States Constitution. See, e.g., Pet. App. 110a-117a, 120a-121a, 125a-126a. On December 4, 2000, following a two-day trial, the circuit court rejected the Gore respondents' claims. The court found that there was no credible evidence estab- lishing a reasonable probability that the Florida election results would be different if the requested relief were granted to the Gore respondents; that the Miami-Dade County Canvassing Board did not abuse its discretion in deciding not to perform a complete manual recount; and that the Palm Beach County Canvassing Board did not abuse its discretion in determining that the 3,300 ballots the Gore respondents sought to have reviewed again by the circuit court were non-votes. Pet. App. 61a-62a. The circuit court also found that the Palm Beach County "process and standards [for evaluating ballots] were changed from the prior 1990 standards," and noted that these changes were "perhaps contrary to Title III, Sec- tion (5) of the United States Code." Id. at 62a-63a.1 1 That factual finding was supported by substantial evi- dence presented during the trial below. For example, Judge Burton, Chairman of the Palm Beach County Canvassing Board, admitted that when the first ballots were subject to a sample manual recount on November 11, the canvassing board used its existing 1990 guidelines mandating that if a "chad . . . is fully attached, bearing only an indentation, [it] should not be counted." Trial Transcript, Gore v. Harris, No. 00-2808, at 238, 239, 240 (Fla. Cir. Ct. Dec. 2-3, 2000) ("Trial Tr."). Judge Burton testified that during the sample recount, the canvassing board changed to the "Sunshine Rule," id. at 240 (defining "Sunshine Rule" as "any light that was coming through any indentation on a ballot"), and then back again to the 1990 standard. Id. at 242. According to Judge Burton, the Board eventually abandoned any sem- blance of a per se rule. Id. at 245. Ultimately, a court or- 10 The circuit court expressed its concern that imple- menting a different standard for evaluating ballots dur- ing the contest proceeding would create a two-tier sys- tem not only within certain counties, but also with re- spect to other counties. Citing an opinion letter from Florida's Attorney General, the circuit court explained that such a system "would have the effect of treating voters differently depending upon what county they voted in . . . . [thereby raising] legal jeopardy under both the United States and state constitutions." Pet. App. 63a (citation omitted). The evidence before the trial court revealed that the lack of any specific guidance for determining whether a particular ballot reflected a vote, see Fla. Stat. § 101.5614(5), led to wide discrepancies across and within Florida counties regarding the evaluation of bal- lots in a manual recount. Indeed, standards often varied even from one canvassing board member to another in the same county.2 dered the canvassing board to consider "dimpled" chads even though the pre-existing 1990 policy precluded treating mere indentations as valid votes, see Florida Democratic Party v. Palm Beach County Canvassing Bd., No. CL 00-11078-AB, 2000 WL 1728721 (Fla. Cir. Ct. Nov. 22, 2000), and even though a sample ballot provided in each voting booth in- structed voters to: "check your ballot card to be sure your voting selections are clearly and cleanly punched and there are no chips left hanging on the back of the card." Touchston v. McDermott, No. 00-15985, 2000 WL 1781942, at *6 n.19 (11th Cir. Dec. 6, 2000) (Tjoflat, J., dissenting). 2 For example, according to a monitor in Miami-Dade County, there were four different standards applied by three different canvassing board members. Judge King determined that every "dimpled or pregnant chad . . . was a vote," Trial Tr. 497, whereas Judge Lehr looked for any indication of chad separation. Id. at 497, 499. Supervisor Leahy switched from looking for a "two point" hanging chad during the sam- 11 The evidence before the trial court also revealed the substantial degradation of ballots caused by manual handling. Ballot fragility was most plainly evident in Miami-Dade, which attempted to undertake a selective recount during the judicially-extended protest period. Miami-Dade used machines in the first instance to seg- regate "no vote" ballots. Trial Tr. 479. That process demanded the constant stopping and starting of the bal- lot-counting machines, and frequent manual treatment of ballots was necessary to retrieve non-votes, clear jams, and process the ballots. Id. at 484, 485. The rough han- dling led to approximately 1,000 chads per day being dislodged from ballots. Id. at 506. E. The Florida Supreme Court's Decision On December 8, 2000, a 4-3 majority of the Florida Supreme Court reversed the circuit court and announced the creation of a complex, non-uniform, and novel sys- tem for further manual recounts. The majority held that canvassing board decisions were not "to be accorded the highly deferential `abuse of discretion' standard" after the protest period. Pet. App. 13a. Despite that ruling, and without review of the ballots, the majority directly ordered the inclusion of (1) 176 or 215 net votes for the Gore respondents as "identified" by the Palm Beach Canvassing Board,3 and (2) 168 net votes for the Gore respondents "identified in the partial recount" by the Miami-Dade Canvassing Board but not submitted for certification. Pet. App. 3a-4a. All of these ballots were ple recount, id. at 499, to the "Sunshine Rule" described above. Id. at 497. These standards also differed from the standards used in Palm Beach County. 3 The court directed the trial court to determine whether 176 or 215 was the correct number. Pet. App. 4a n.6. 12 counted after the November 14 deadline.4 Furthermore, the majority ordered the trial court "to immediately tabulate by hand the approximately 9,000 Miami-Dade ballots," id. at 33a, yet ordered the supervisors of elec- tions and canvassing boards "in all counties that have not conducted a manual recount or tabulation of the un- dervotes in this election to do so forthwith," id.5 The majority opinion did not acknowledge or re- spond to this Court's December 4 opinion vacating the November 21 decision, nor did it explain how its newly fashioned directives complied with 3 U.S.C. § 5's time limit. The majority conceded, however, that the "need for prompt resolution and finality is especially critical in presidential elections where there is an outside deadline established by federal law," Pet. App. 31a, and that "be- cause the selection and participation of Florida's electors in the presidential election process is subject to a strin- gent calendar controlled by federal law, the Florida election law scheme must yield in the event of a con- 4 These votes were thus untimely under the statutory dead- line, and were included only by virtue of the supreme court's improper reliance on its vacated November 21 opinion. 5 The majority's decision thus has the effect of subjecting Miami-Dade County to an arbitrary double standard. The results from a full manual recount of all ballots from 20 per- cent of its precincts (the most heavily Democratic, in which Vice President Gore received about 75% of the vote) were ordered included in the totals, but the ballots from the re- maining 80 percent of the county's precincts (many of which are more heavily Republican) would have only "undervotes" manually counted. Chief Justice Wells, in his dissent, ex- pressed concern about this effect, because "not to count all of the ballots if any were to be recounted would plainly be changing the rules after the election and would be unfairly discriminatory against votes in the precincts in which there was no manual recount." Pet. App. 44a. 13 flict." Id. at 16a n.11 (emphasis added). The court nonetheless created and imposed a novel recount plan that could not be completed in a timely and orderly manner and that would, by definition, conflict with 3 U.S.C. § 5. See Pet. App. 32a n.21 ("we agree that prac- tical difficulties may well end up controlling the out- come of the election"); id. at 56a (Harding, J., dissent- ing) (majority "provid[ed] a remedy which is impossible to achieve and which will ultimately lead to chaos"). Nor did the majority explain how its judgment could be reconciled with the constitutional and federal law claims raised by petitioners below. See, e.g., Pet. App. 109a-110a (equal protection and due process); Pet. App. 110a (Article II and 3 U.S.C. § 5). As Chief Justice Wells wrote in dissent, Florida's "[c]ontinuation of [a] system of county-by-county decisions regarding how a dimpled chad is counted is fraught with equal protection concerns . . . ." Pet. App. 43a-44a. He also concluded that directing the trial court to conduct a manual recount of the Miami-Dade County ballots violates Article II of the federal Constitution, in that "neither th[e Florida Su- preme] Court nor the circuit court has the authority to create the standards by which it will count the under- voted ballots." Id. at 45a. Chief Justice Wells also ex- pressed concern that "in a presidential election, the Legislature has not authorized the courts of Florida to order partial recounts, either in a limited number of counties or statewide," id. at 46a, and that "there is un- certainty as to whether the Florida Legislature has even given the courts of Florida any power to resolve contests or controversies in respect to presidential elections." Id. at 49a. In addition, Chief Justice Wells cautioned that "manual recounts by the canvassing board[s] are consti- tutionally suspect." Id. at 43a n.28.6 6 Chief Justice Wells further noted that "[a] continuing problem with these manual recounts is their reliability. It only stands to reason that many times a reading of a ballot by 14 Although the majority announced that "every citi- zen's vote be counted whenever possible," Pet. App. 17a, and that it was the Florida Supreme Court's duty to "see that every citizen's vote be counted," id. at 17a n.12, the majority held that "a final decision as to the result of the statewide election should only be deter- mined upon consideration of the legal votes contained within the undervote or `no registered vote' ballots of all Florida counties, as well as the legal votes already tabu- lated." Id. at 18a. As Chief Justice Wells pointed out in his dissent, the majority ignored the fact that "over- votes" as well as "undervotes" result in a vote not being counted. Id. at 38a-39a n.26 (Wells, C.J., dissenting) ("It seems patently erroneous to me to assume that the vote-counting machines can err when reading under- votes but not err when reading over-votes.").7 The majority directed the trial court "to enter such orders as are necessary to add any legal votes to the statewide certifications," Pet. App. 33a, and instructed a human will be subjective [and] [t]his subjective counting is only compounded where no standards exist or, as in this statewide contest, where there are no statewide standards for determining voter intent by the various canvassing boards, individual judges, or multiple unknown counters who will eventually count these ballots." Pet. App. 47a-48a. 7 The majority's reasoning about "undervotes," appears to be that any mark on a ballot-such as a dimpled indenta- tion-reflects an intent to vote, even if it is not counted by a machine. If that premise is accepted, then all of the machine- counted votes would also have to be examined manually so that ballots that include two "votes" for President can be ex- cluded from the totals. The majority failed to address this logical extension of its reasoning, which, as the evidence be- fore the trial court demonstrated, actually occurred. Trial Tr. 512-13 (witnessing instances where machine-counted vote included in totals also contained a "dimple vote" for another candidate). 15 that during the recounts, the standard to be applied in determining whether a vote is "legal" is whether there is a "clear indication of the intent of the voter." Id. at 34a (citing Fla. Stat. § 101.5614(5)). The majority provided no further guidance to the trial court, refusing to make provision for, among other things, "the qualifications of those who count," "whether a person may object to a counter," "what standards are used in the count," "the effect of differing intra-county standards," or "how one objects to the count." See id. at 48a (Wells, C.J., dis- senting). Chief Justice Wells expressed his concern that the majority's prolongation of "this counting contest propels this country and this state into an unprecedented and unnecessary constitutional crisis." Id. at 35a.8 In the wake of the majority's decision, the trial court implemented the supreme court's mandate by issuing orders near midnight on December 8 regarding how the recount would proceed. It ordered that by 8:00 a.m. De- cember 9, 64 county canvassing boards were to begin segregating their "undervotes" with a goal of completing a recount by 2:00 p.m. on Sunday, December 10. Hear- ing Tr. 5, 7, 9 (attached to Petitioners' Supplemental Mem. In Support Of Emergency Application, No. 00A- 504 (filed Dec. 9, 2000)). The trial court did not estab- lish any uniform, statewide method for identifying and segregating undervotes, nor did it provide any instruc- tion to avoid double counting previously counted ballots. Instead, it merely ordered each canvassing board to de- velop "some indication of the protocol purported or pro- posed" to segregate undervotes by noon on Saturday, 8 Both dissents also pointed out that the majority's decision departs from the law as it existed on November 7. See Pet. App. 35a (Wells, C.J., dissenting) (majority's decision "has no foundation in the law of Florida as it existed on November 7, 2000"); id. at 55a (Harding, J., dissenting) ("the majority has established standards for manual recounts-a step that this Court refused to take in an earlier case"). 16 December 9, 2000. Id. at 8. The trial judge instructed that the recount was to be conducted by some combina- tion of judges, canvassing board employees, and "such other public officials" as the various counties deemed necessary in light of the schedule. Id. at 8-9. The trial court called upon judges in other counties to assist in the recount in order "to give some objectivity and partiality [sic] to the process itself, to reduce, to the extent possi- ble any objections to the manner in which [the recount] was conducted." Id. at 9 (emphasis added). The trial court, however, expressly forbade objections to the vote recounts as they occurred, although observers could take notes and (in theory only) submit written objections later. Id. at 8-9. The events that occurred in the wake of the major- ity's decision thus closely mirrored Justice Harding's warning: "Even if such a recount were possible, speed would come at the expense of accuracy, and it would be difficult to put any faith or credibility in a vote total achieved under such chaotic conditions." Pet. App. 55a (dissenting opinion). SUMMARY OF ARGUMENT I. The new standards, procedures, and timetables established by the Florida Supreme Court for the selec- tion of Florida's presidential electors are in conflict with the Florida Legislature's detailed plan for the resolution of election disputes. The court's new framework thus violates Article II, § 1, cl. 2 of the United States Consti- tution, which vests in state legislatures the exclusive au- thority to regulate the appointment of presidential elec- tors. See McPherson v. Blacker, 146 U.S. 1, 27 (1892). A. The multiple ways in which the Florida Su- preme Court's decision has cast aside provisions of the statutory scheme governing elections also constitute vio- lations of Article II, § 1 because they usurp the legisla- ture's exclusive authority. These judicial departures in- clude: the elimination of the Secretary of State's author- 17 ity to maintain uniformity in application of the election laws; disregard for the statutory provisions that require manual recounts to include "all" ballots; the substitution of courts for canvassing boards in determining ballot va- lidity; and the imposition of de novo judicial review by courts of canvassing boards' certified judgments. B. Because state constitutions cannot alter Article II's direct and exclusive grant of authority to legisla- tures, and because the Florida Legislature did not dele- gate to it the power to do so, the Florida Supreme Court did not have jurisdiction or authority to decide this case. The Florida Legislature has granted jurisdiction over election contests only to Florida circuit courts. C. The Florida Supreme Court's decision repeat- edly relies on its November 21 decision, which this Court had already vacated, and the consequences of that decision. This magnifies the Article II violations that the November 21 decision produced. II. The Florida Supreme Court's revision of Flor- ida's statutory system for resolving election disputes also violates 3 U.S.C. § 5, which gives conclusive effect to determinations of controversies or contests concern- ing the appointment of electors only if those determina- tions are made "pursuant to" "laws enacted prior to" election day and within the federally mandated Decem- ber 12 deadline. Section 5 is intended to "assure" States of "finality" in the determination of their presidential electors, and this Court has already cautioned the Florida Supreme Court "against any construction of [state law] that Con- gress might deem to be a change in the law." Bush v. Palm Beach County Canvassing Board, No. 00-836, slip op. at 6. Although the court below acknowledged to the "stringent calendar controlled by federal law," Pet. App. 16a n.11, it ignored federal law altogether by imposing multiple changes on the statutory system for resolving 18 election disputes. Among other things, the Florida Su- preme Court provided an extraordinary remedy that has no statutory basis, and its novel exposition of the contest provision essentially reads out other more specific pro- visions in Florida's Election Code. III. The new set of manual recount procedures con- cocted by the Florida Supreme Court is arbitrary, stan- dardless, and subjective, and will necessarily vary in ap- plication, both across different counties and within indi- vidual counties, in violation of the Equal Protection and Due Process Clauses of the Fourteenth Amendment. A. The Equal Protection Clause forbids the state from treating similarly situated voters differently based merely on where they live. See, e.g., O'Brien v. Skinner, 414 U.S. 524 (1974). Yet the various manual recounts ordered by the Florida Supreme Court will necessarily result in such differential treatment in violation of the Equal Protection Clause. The lack of uniform standards for counting "votes" means that voters who cast identi- cal ballots in different counties will likely have their bal- lots counted differently. This is also true of the com- pleted manual recounts that the Florida Supreme Court has compelled, or attempted to compel, the Secretary of State to include in the certified election results. The new multi-tier recount scheme ordered by the court imposes several inherently different standards that also violate equal protection guarantees. It includes all newly identified "votes" from about one-fifth of the pre- cincts in Miami-Dade County, but only orders the re- count of a fraction of ballots identified as "under-votes" from the other 80 percent of the county. And, while so- licitous of under-votes, the decision does nothing to ac- count for "over-votes" in the machine count (which are also recorded as non-votes). Furthermore, by adopting varying levels of deference to the conclusions of differ- ent county canvassing boards, the court introduces even greater disparities in treatment. 19 B. Due process requires the application of clear and consistent guidelines based on prospective rules. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 432 (1982). Yet the Florida Supreme Court's new election procedures are retroactive and anything but clear and consistent. In fact, they substantially deviate from prac- tices established before election day. Changing the legal status of ballots after the election on the basis of selec- tive, subjective, standardless, and shifting methods of manual recounting is fundamentally unfair. See Roe v. Alabama, 43 F.3d 574, 581 (11th Cir. 1995). Under the particular circumstances imposed by the court for the manual recounts, due process is further compromised because ballots are inevitably degraded during repeated machine inspection of ballots to segregate under-votes and by the manual recounts themselves. Moreover, the prescribed procedures adopted to implement the Florida Supreme Court's judgment deny parties any meaningful opportunity to object to subjective ballot determinations or to receive judicial review of those determinations. Finally, the Florida Supreme Court has also fundamen- tally changed the meaning and legal consequences of vote certification. ARGUMENT I. The Decision Of The Florida Supreme Court Violates Article II Of The Constitution The Constitution expressly grants the legislatures of the several States plenary power over the appointment of electors, directing that electors shall be chosen "in such Manner as the Legislature thereof may direct." U.S. CONST. art. II, § 1, cl. 2. As this Court has recognized, the Constitution "leaves it to the legislature exclusively to define the method of effecting the object [of appoint- ing electors]." McPherson v. Blacker, 146 U.S. 1, 27 (1892) (emphasis added). Indeed, the Framers' "inser- tion of those words" in Article II-"in such Manner as 20 the Legislature . . . may direct"-undeniably "operate[s] as a limitation upon the State in respect of any attempt to circumscribe the legislative power." Bush, slip op. at 4- 5 (quoting McPherson, 146 U.S. at 25). The Florida Legislature enacted a carefully crafted statutory scheme to govern the appointment of presiden- tial electors. In so doing, "the legislature [was] not act- ing solely under the authority given it by the people of the State, but by virtue of a direct grant of authority made under Art. II, § 1, cl. 2, of the United States Con- stitution." Bush, slip op. at 4. By rewriting that statu- tory scheme-thus arrogating to itself the power to de- cide the manner in which Florida's electors are cho- sen-the Florida Supreme Court substituted its judg- ment for that of the legislature in violation of Article II. Such a usurpation of constitutionally delegated power defies the Framers' plan. The Florida Legislature never authorized judicial revision of the legislative structure it so meticulously conceived. Indeed, notwithstanding the rote incantation by a majority of the court below of the paramount role of the state legislature in this field, the court's key conclusions were simply pronounced with- out even the pretense of any statutory support. This Court has recognized that the legislature's Ar- ticle II power of appointment is exclusive. See McPher- son, 146 U.S. at 34-35 ("`The appointment of these elec- tors is thus placed absolutely and wholly with the legis- latures of the several states.'") (quoting with approval S. Rep., 1st Sess., 43d Cong., No. 395). Indeed, the Con- stitution contains provisions that vest responsibility in the States qua States, e.g., U.S. CONST. art. I, § 8, cl. 16, as well as provisions that, as here, single out the particu- lar branch of state government charged with exercising certain duties integral to the functioning of the federal government, e.g., U.S. CONST. art. I, § 2, cl. 4. In light of the Constitution's precise distinctions among state legislative, executive, and judicial powers, the Framers' decision to vest specific authority in state legislatures 21 must be understood to be exclusive of state executive or judicial power to prescribe the "manner" of appointing electors. Thus, in the absence of a clear and express delegation of the appointment power by the legislature to a coordinate branch of government, the Constitution bars the exercise of that power by any other branch. A. The Decision Below Overrides Numerous Provisions Of Florida Election Law The decision below overrides numerous provisions of the detailed and specific statutory scheme enacted by the Florida Legislature. The resulting, judicially prom- ulgated election scheme not only flies in the face of the specific language of the contest statute but also renders all but irrelevant the detailed statutory provisions ad- dressing when and how canvassing boards may conduct manual or other recounts-including the requirement that any such recount must include "all ballots"-and the Secretary of State's duty and authority to ensure uni- formity in the operation of the election laws by issuing opinions that are binding on the canvassing boards, the only bodies statutorily authorized to "count" votes. That new, judicially promulgated system is a plain violation of Article II. First, assuming arguendo that the contest statute even applies to presidential elections, the court below simply disregarded the plain language of that statute.9 9 The § 102.168 remedy by its terms does not extend to presidential elections, and it certainly does not authorize a contest action by a candidate for President (rather than by an unsuccessful candidate for presidential elector). Florida law instead establishes separate procedures for certifying the election of presidential electors and for replacing electors when appropriate, but makes no provision for a "contest" of the presidential election. See Fla. Stat. §§ 103.011, 103.021(5). The court's arbitrary extension of § 102.168 to a 22 As is clear from the face of the contest statute, what is "contested" is "the certification." Fla. Stat. § 102.168(1) (emphasis added). The deadline for filing a contest action runs from "the date the last county can- vassing board . . . certifies the results of the election be- ing contested," id. at § 102.168(2); in any such action "the proper party defendant" "shall be" the canvassing board. Id. at 102.168(4). It would be hard to find lan- guage that more clearly indicates the legislature's intent to provide for judicial review of the certification deci- sion, as opposed to a de novo examination of each pur- portedly disputed ballot without regard to the certified judgment of the body whose statutory duty is to count the votes. Not surprisingly, until the decision below, Florida law had long recognized that there is a "pre- sumption that returns certified by election officials are presumed to be correct." Boardman v. Esteva, 323 So. 2d 259, 268 (Fla. 1975). Specifically, certified election returns are "regarded by the courts as presumptively cor- rect and if rational and not clearly outside legal require- ments should be upheld." Id. at 268-69 n.5 (quotation omitted). Indeed, to overcome that strong presumption, an election challenger must show, as a threshold matter, that there has been "substantial noncompliance with the election statutes." Beckstrom v. Volusia County Can- vassing Bd., 707 So. 2d 720, 725 (Fla. 1998). By contrast, the decision below treats a contest as a de novo proceeding in which courts may treat the judg- ments of the canvassing boards and of the Secretary of State-including certification-as purely hortatory pro- presidential "contest" is therefore itself a violation of Article II. 23 nouncements.10 Those judgments thus become legally meaningless, since the circuit court must adjudicate the dispute without regard to any reasons, however compel- ling, that the canvassing boards or the executive may have had for certifying results as they did. Plaintiffs in the position of the Gore respondents thus need not "con- test" the "certification," for the court will-indeed must-simply ignore it. In fact, under the ruling below, certified election returns are treated with less dignity than returns that have not been certified by either the county canvassing boards or the state election commis- sion. While the certified election results from all other counties (except Broward and Volusia, where manual recounts produced over 700 additional Gore votes) are presumed incorrect and will be subject to de novo judi- cial review, the decision below requires that the uncerti- fied results of manual recounts in Palm Beach County (adding 176 or 215 Gore votes) and Miami-Dade County (with 168 additional Gore votes based solely on partial results) be certified without any judicial review of their correctness (or any review of whether the certi- fied results from these counties, in fact, "rejected legal votes"). The consequence of the court's ruling is nothing less than the evisceration of the internal coherence of the leg- islature's design. The legislature provided for canvass- ing boards, not courts, to count votes. Indeed, even the 10 The court attempted to justify its decision to ignore the certification, and its imposition of "de novo" review, with the observation that, because "a protest is not a prerequisite for a contest," "[n]o appellate relationship exists between a `pro- test' and a `contest.'" Pet. App. 12a-13a. Certification, how- ever, quite clearly is a prerequisite for a contest, and the statute provides no basis for ignoring certification merely be- cause no "protest" need ever have been lodged before the election results were certified. 24 statute from which the court below claimed to derive its purportedly uniform "intent of the voter" standard-a statute that by its plain terms applies only to the initial canvass of votes when a ballot is spoiled or damaged, see Fla. Stat. § 101.5614(5)-expressly provides that whether a ballot reflects a "clear indication of the intent of the voter" is a determination to be made "by the can- vassing board." Id. (emphasis added). See also Fla. Stat. § 102.166(7)(b) ("If a counting team is unable to determine a voter's intent in casting a ballot, the ballot shall be presented to the county canvassing board for it to determine the voter's intent.") (emphasis added). By revoking the canvassing board's legislatively conferred authority and ordering the circuit court to "commence the tabulation of the Miami-Dade ballots" and conduct its own de novo examination of which ballots are valid, Pet. App. 34a, the court below overrode the will of the legislature to repose responsibility for examining ballots in election officials with presumed expertise in this field (subject to the ultimate interpretive authority of the Sec- retary of State), and thereby violated Article II, § 1. See Pet. App. 45a (Wells, C.J., dissenting) ("Directing the trial court to conduct a manual recount of the ballots violates article II, section 1, clause 2 of the United States Constitution, in that neither this Court nor the circuit court has the authority to create the standards by which it will count the under-voted ballots"). Moreover, the legislature clearly anticipated that some elections might be close, and clearly provided rules on how to deal with that situation. In particular, the legislature has never prescribed manual recounts as the exclusive, or even preferred, methodology for dis- cerning the intent of voters or for distinguishing "legal" from "illegal" votes. Instead, when an initial count of the election results demonstrates that the margin of vic- tory for a candidate is less than one-half of one percent, an automatic recount must take place, unless the losing candidate does not desire such a recount. See Fla. Stat. § 102.141(4). A manual recount may be ordered at the 25 protest stage, subject to detailed requirements- including the requirement that "all ballots" must be counted when such a recount is ordered. See Fla. Stat. § 102.166. Under the scheme devised by the court be- low, however, there literally is no point in the safeguards provided for such recounts at the protest stage. Indeed, there is no point in any candidate or canvassing board ever going through the protest process or in conducting a manual recount. To achieve the result reached by the court below, the legislature might as well have dis- pensed with the bulk of the election code and simply provided for the shipment of all ballots to the circuit court immediately following the certification of the elec- tion results. Indeed, if Florida law could plausibly be read in the manner announced by the court below, the court's own earlier efforts-merely two weeks ago-to extend the certification deadline so as to permit addi- tional manual recounts are completely inexplicable. The Florida Supreme Court also approved the inclu- sion in the statewide election results of ballots (such as those from Broward County) that were counted as valid votes on the basis of mere "dimples" or indentations on the ballot. The Florida legislature has never provided that dimpled ballots should be counted as valid votes. To the contrary, counting "dimpled" ballots as valid votes violates the very statute relied on by the court be- low, Fla. Stat. § 101.5614(5), which requires "a clear indication of the intent of the voter as determined by the canvassing board" (emphasis added). Although the election code contemplates a certain level of discretion in how canvassing boards may elect to count votes, it also provides expressly for the means for cabining that discretion and binding those boards to a uniform count- ing standard: The Secretary of State is the "chief elec- tion officer of the state" and her duty is to "[o]btain and maintain uniformity in the application, operation, and interpretation of the election laws." Fla. Stat. § 97.012(1). The Florida Supreme Court's crazy-quilt ruling, by contrast, orders selective and partial recounts 26 conducted pursuant to varied and ever-shifting stan- dards, thus expressly mandating a lack of consistency- in direct contravention of the legislature's unequivocal directive to achieve uniformity in the operation of Flor- ida's election laws.11 Before the decision below, no statute in Florida had ever been interpreted as establishing the principle that "it is absolutely essential" to conduct a manual recount of all "undervotes" to determine whether a voter's intent can be divined from them. Id. at 15a. In every state- wide election there are tens or hundreds of thousands of ballots that do not register votes and yet are not manu- ally recounted. But if that recount principle were in fact an established fixture of Florida law, it would be hard to escape the conclusion that all ballots must be counted in the same manner in order to determine each voter's true "intent." For example, once the court believed, however erroneously, that the outcome of the election was "in doubt," it was irrational to require manually counting "undervotes" but not "overvotes"-the court's ruling would require courts to ignore the vote of anyone who clearly marked his ballot for a candidate and also wrote in the same candidate, resulting in his vote being dis- qualified as an "overvote" even though his intent is un- mistakable. The legislative safeguards of § 102.166 (5)(c)-which provides that if a county canvassing board elects to conduct a manual recount, it "shall" "[m]anually recount all ballots" (emphasis added)-are plainly designed to avoid the dangers of selective, arbi- 11 Because the Florida legislature has empowered the can- vassing boards to determine what constitutes a "clear indica- tion" of voter intent, the decision below also substitutes judi- cially mandated standards for standards that the canvassing boards had issued pursuant to legislatively delegated author- ity. See Stay App., Exh. J (Palm Beach County Guidelines providing that "a chad that is fully attached, bearing only an indentation, should not be counted as a vote"). 27 trary and incomplete results inherent in a partial manual recount. Indeed, because the legislature imposed "`a mandatory obligation to recount all the ballots in the county'" before certification in those cases in which a manual recount is appropriate, Pet. App. 26a), it is in- conceivable that the legislature intended a partial re- count to suffice for overturning those certified results.12 It is no answer to say that § 102.166's requirement that a manual recount must include all ballots has no ap- plicability in a contest action under § 1