Supreme Court Briefs

No. 00-949
Supreme Court of the United States



David Boies                  Laurence H. Tribe          Robert Silver                (Counsel of Record)        Boies, Schiller & Flexner    Hauser Hall 420            80 Business Park Dr.         1575 Massachusetts Ave.    Suite 110                    Cambridge, MA 02138        Armonk, NY 10504                                        Thomas C. Goldstein          Ronald A. Klain            Amy Howe                     Andrew J. Pincus           4607 Asbury Pl. NW           Gore-Lieberman Recount Cmt.Washington, DC 20016         430 S. Capitol St.                                      Washington, DC 20003       ========================================(Counsel cont'd)                                        Jonathan S. Massey           Peter J. Rubin             3920 Northampton St. NW      Georgetown Univ. Law Ctr.  Washington, DC 20015         600 New Jersey Ave. NW                                  Washington, DC 20001       Kendall Coffey                                          Coffey Diaz & O'Naghten                                 2665 South Bayshore Dr.                                 Miami, FL 33133                                         


  1. Whether the Florida SupremeCourt's decision interpreting andapplying the provisions governing contest proceedings inFlorida's Election Code according to established canons ofstatutory construction violates Article II, § 1, cl. 2.

  2. Whether the Florida Supreme Court's decision is inconsistentwith 3 U.S.C. § 5.

  3. Whether the Florida Supreme Court's decision, enforcingFlorida's contest provisions by ordering the manual review ofballots not counted by machines under the legal standard fordetermining their validity specified in Fla. Stat. § 101.5614,violates either the Equal Protection Clause or Due ProcessClause of the Fourteenth Amendment.


The following individuals and entities are parties to theproceeding in the court below: Governor George W. Bush, asnominee of the Republican Party for President of the UnitedStates; Richard Cheney, as nominee of the Republican Party forVice President of the United States; Vice President Al Gore, asnominee of the Democratic Party for President of the UnitedStates; Joe Lieberman, as nominee of the Democratic Party forVice President of the United States; Katherine Harris, as Secretaryof State, State of Florida; Katherine Harris, Bob Crawford, andLaurence C. Roberts, individually and as members of the FloridaElections Canvassing Commission; the Miami-Dade CountyCanvassing Board; Lawrence C. King, Myriam Lehr, and David C.Leahy, as members of the Miami-Dade County Canvassing Board,and David Leahy, individually and as Supervisor of Elections; theNassau County Canvassing Board; Robert E. Williams, Shirley N.King, and David Howard (or, in the alternative, Marianne P.Marshall), as members of the Nassau County Canvassing Board,and Shirley N. King, individually and as Supervisor of Elections;the Palm Beach County Canvassing Board; Theresa LePore,Charles E. Burton, and Carol Roberts, as members of the PalmBeach County Canvassing Board, and Theresa LePore,individually and as Supervisor of Elections; and Stephen Cruce,Teresa Cruce, Terry Kelly, Jeanette K. Seymour, Matt Butler, JohnE. Thrasher, Glenda Carr, Lonnette Harrell, Terry Richardson,Gary H. Shuler, Keith Temple, and Mark A. Thomas, asIntervenors.



Opinions Below


Constitutional and Statutory Provisions

Statement of the Case

Summary of Argument


  1. Article II Provides No Basis To Override The Florida Supreme Court's Decision

  2. The Florida Supreme Court's Decision Is Consistent With 3 U.S.C. § 5

  3. The Fourteenth Amendment Affords No Basis For This Court To Set Aside Florida's Established Statutory Proceedings For Determining The Proper Outcome Of The Election



This case raises the most fundamental questions about thelegitimacy of political power in our democracy. In this case, theCourt will decide whether the Electors for President of the UnitedStates, and thus the President of the United States himself, will bechosen by ascertaining the actual outcome of the popular vote inFlorida in the election of November 7, 2000, or whether thePresident will instead be chosen without counting all the ballotslawfully cast in that state. The Florida Supreme Court hasdetermined, in a way that would be unremarkable but for thestakes in this election, that in order to determine whether lawfullycast ballots have been wrongfully excluded from the certified votetally in this election, they must be examined. This is basic,essential, to our democracy, and to all that gives it legitimacy.

The central question posed by this case is whether anyprovision of federal law legitimately forecloses the FloridaSupreme Court from interpreting, applying, and enforcing thestatutes enacted by the Florida Legislature to determine allelection contests and ascertain the actual outcome of the popularvote in any such election. See Fla. Stat. § 102.168; see alsoFlorida Election Code, Fla. Stat. §§ 97.011-106.37. This process-- which operates by popular vote and employs administrative andjudicial processes when needed to ascertain which candidate hasprevailed -- is the only provision by which the Florida Legislaturehas established the manner of appointing Florida's Presidentialelectors in the 2000 general election. They are commonprovisions that have been adopted and utilized for decades in thevast majority of the States. See infra. These statutes expresslyprovide for "judicial determination" of any contest to determinethe rightful winner of an election, as called for by 3 U.S.C. § 5.Those statutes having been faithfully applied by the FloridaSupreme Court in this case, the question is whether this Court mayproperly override Florida's own state-law process for determiningthe rightful winner of its electoral votes in this Presidentialelection.

Such intervention would run an impermissible risk of taintingthe result of the election in Florida -- and thereby the nation. Forthis Court has long championed the fundamental right of all whoare qualified to cast their votes "and to have their votes counted."Reynolds v. Sims, 377 U.S. 533, 554 (1964). Petitioners' requestthat this Court intervene in a state electoral process to ensure thatvotes are not counted turns Sims on its head. In the end,notwithstanding fears as to how "counting of [the] votes" may"cast[] a cloud upon what [Governor Bush] claims to be thelegitimacy of his election," Bush v. Gore, No. 00-949 (A-504),Slip op. at 2 (Dec. 9, 2000) (Scalia, J., concurring), there can belittle doubt that a count of the still uncounted votes, as the FloridaSupreme Court ordered in this case, will eventually occur. Theonly question is whether these votes will be counted before theElectoral College meets to select the next President, or whetherthis Court will instead relegate them to be counted only byscholars and researchers under Florida's sunshine laws, after thenext President is elected. Nothing in federal law, the United StatesConstitution, or the opinions of this Court compel it to choose thesecond course over the first.


The opinion of the Florida Supreme Court in the contestproceeding is unreported and is set forth in Exhibit A to theapplication for stay. The order of the Leon County Circuit Courtin that proceeding is unreported and is set forth in Exhibits B andC to the stay application. The opinion of this Court in a distinctbut related case involving many of the same parties, see Bush v.Palm Beach County Canvassing Bd., No. 00-836, Slip op. (U.S.Dec. 4, 2000) (per curiam) (hereinafter Palm Beach County), isreported at 2000 WL 1769093 and is set forth in Exhibit D to thestay application.


The Florida Supreme Court entered judgment on December 8,2000. An application for stay was filed on the same day. OnDecember 9, 2000, the stay was granted; the application wastreated as a petition for certiorari that also was granted. ThisCourt has jurisdiction under 28 U.S.C. § 1257 to review thejudgment of the Florida Supreme Court.


The constitutional and statutory provisions at issue arereproduced in the appendix to this brief. See S. Ct. R. 24.1(f).


This case arises from a contest proceeding under the FloridaElection Code to ascertain which Presidential candidate is therightful winner of Florida's electoral votes in the 2000 generalelection. See Fla. Stat. § 102.168. Florida's election lawestablishes two distinct phases for the resolution of disputesregarding the outcome of an election. The first phase -- the"protest" action -- runs from election day through the certificationof the election's results. It involves the reports of countycanvassing boards to the Secretary of State and ElectionsCanvassing Commission, and the resolution by the countycanvassing boards of any protests filed pursuant to Fla. Stat.§ 102.166. This aspect of Florida's election law was before thisCourt in Palm Beach County Canvassing, supra, which sets out inmore detail the factual background to this case. See id., Slip 1-4.

The second, post-certification phase for resolution of electiondisputes is the "election contest action" created by the Legislaturein Fla. Stat. § 102.168. That law provides that "the certificationof election * * * of any person to office * * * may be contested inthe circuit court by any unsuccessful candidate for such office * ** or by any elector qualified to vote in the election related to suchcandidacy." One of the legislatively specified grounds forcontesting any election is the "rejection of a number of legal votessufficient to change or place in doubt the result of election." Id.§ 102.168(3)(c). The Legislature expressly provided the state'scourts with broad authority both to investigate claims in contestactions and to fashion "any relief appropriate under suchcircumstances." Id. § 102.168(8).

Indeed, throughout the litigation over the certification results,petitioners themselves identified the contest procedure as theproper manner in which respondent Gore could seek a remedy forthe problem of uncounted votes in Florida. See, e.g., AnswerBrief of George W. Bush before the Florida Supreme Court inPalm Beach County Canvassing Bd. v. Harris, Nos. SC00-2346,SC00-2348, & SC00-2349, at 18 (filed Nov. 19, 2000) (accusingrespondent Gore of "substitut[ing] the certification process ofSection 102.111 and Section 102.112 for the contested electionprocess of Section 102.168 as the means for determining theaccuracy of vote tallies"). As the Florida Supreme Courtrecounted in its opinion below:

Bush's counsel, Michael Carvin, in the prior Oral Argumentin Palm Beach Canvassing Board v. Harris, in arguing againstallowing manual recounts to continue in the protest phase,stated that he did not

think there would be any problem in producing...that kindof evidence in an election contest procedure...instead ofhaving every court in Florida resolving on an ad hoc basisthe kinds of ballots that are valid and not valid, you wouldbe centralizing the factual inquiry in one court in LeonCounty. So you would bring some orderliness to theprocess, and they would be able to resolve that evidentiaryquestion.

Slip Op. 6 n.7 (emphasis added and omitted).

Accordingly, on November 27, 2000, following thecertification of Governor Bush as the winner of the Presidentialelection in Florida, Vice President Gore followed petitioners'recommended course of action and commenced this electioncontest action under Section 102.168 in Leon County CircuitCourt. The complaint raised five claims:

  1. it challenged the rejection of 215 net legal votes forrespondent Gore identified by the Palm Beach CountyCanvassing Board that had been excluded from thecertified vote totals, Complaint ¶¶ 3(a), 60;

  2. it challenged the rejection of 168 net legal votes for VicePresident Gore identified by the Miami-Dade CountyCanvassing Board also excluded from the certified votetotals, id. at ¶¶ 3(a), 37;

  3. it challenged the inclusion in the certified totals of theelection night returns from Nassau County in place of themachine recount tabulation required by Fla. Stat. §102.141 to be used to determine the certified totals, id. at¶¶ 3(b), 41;

  4. it argued that the court should review approximately 9000Miami-Dade County ballots that were not counted by themachines,1 because -- among other reasons -- review ofapproximately 2000 similar ballots by the countycanvassing board yielded nearly 400 legal votes, id. at ¶3(d); and

  5. it challenged the rejection of 3300 legal votes in PalmBeach County during the county canvassing board'smanual recount. Id. at ¶ 3(c).

Following a two-day trial, the circuit court entered judgmentfor petitioners and the other defendants on all claims. FinalJudgment Order, Sauls, J. (Dec. 4, 2000). Three of the circuitcourt's determinations were relevant to its refusal even to examinethe 9000 Miami-Dade County ballots that were introduced intoevidence during the trial. First, the court held that the ballots

1 These ballots are often called "undervotes." Tr. Contest Trial at 180(Dec. 2, 2000). They are ballots which have not been counted as votes forPresident, notwithstanding that on visual inspection they may evidence avoter's intent to cast a vote for President.

should not be reviewed because the Miami-Dade CountyCanvassing Board did not abuse its discretion in terminating itsmanual recount pursuant to Section 102.166. Tr. of Ruling, Sauls,J. (Dec. 3, 2000), at 10. Second, the court held that respondentGore was required to establish a "reasonable probability that theresults of the election would have been changed" before the courtcould review the ballots and that respondent Gore had failed tocarry that burden. Id. at 9. And third, the court held that, in anelection contest action, the court may not review only thecontested ballots but rather must review all ballots cast or noballots at all. Id. at 12.

The Florida Supreme Court affirmed in part and reversed inpart. The court affirmed the judgment regarding both the ballotsfrom Nassau County and the rejection, after review, of 3300ballots by the Palm Beach County Canvassing Board. Slip op. at33, 35. The court reversed, however, as to the exclusion of ballotswhich the Palm Beach and Miami-Dade Canvassing Boards haddetermined to represent valid votes, holding that valid ballots maynot be disregarded in an election contest simply because they werenot identified prior to the close of the county certification process.Id. at 35. Most significant for present purposes, the court held thatrespondent is "entitled to a manual count of the Miami-DadeCounty undervote," but also that the Florida Election Codeauthorized as an appropriate remedy "a counting of the legal votescontained within the undervotes in all counties where theundervote has not been subjected to a manual tabulation." Slip 2; see id. at 28-32, 38-40.

Mindful of the impending deadline for resolutionof the contestaction contained in the safe harbor provision of 3 U.S.C. § 5, thecourt reversed with instructions to the circuit court to "commence* * * tabulation of the * * * ballots immediately." Slip. op. at 39.On remand, after the Florida Supreme Court's decision, the statecircuit court conducted a hearing -- the very same evening -- toestablish practical guidelines and judicial supervision of theprocess to ensure the fairness of the recount. In election contestactions, the Florida Legislature has specifically conferred thisjudicial authority to "fashion such orders as [the court] deemsnecessary to ensure that each allegation in the complaint isinvestigated, examined, or checked, to prevent or correct anyalleged wrong, and to provide any relief appropriate under suchcircumstances." Fla. Stat. § 102.168(8). The circuit courtexercised that authority here to establish orderly procedures for astatewide manual count of undervotes throughout Florida. Tr. ofHearing Before the Hon. Terry Lewis (Dec. 8, 2000); Order onRemand (Dec. 9, 2000).

As to the roughly 9000 undervotes (ballots for which themachine did not record a vote) in Miami-Dade County, the circuitcourt established the following procedures: (1) beginning at 8:00a.m. Saturday, the Miami-Dade County undervote ballots wouldbe reviewed in the Leon County Public Library by the Supervisorof Elections of Dade County, in consultation with the Supervisorof Elections in Miami-Dade County; (2) the Supervisor would bepermitted to rely on the Clerk of the Court and his staff; (3) twojudges from the Second Judicial Circuit would oversee thecounting teams; (4) those two judges would be directed to resolveany dispute about ballots; (5) if those judges could not resolve thedispute, Judge Lewis would resolve the dispute; (6) one person forthe Democratic Party and one person for the Republican Partywould be permitted to observe the count; (7) oral objections wouldnot be permitted, but would be required to be reduced to writingand submitted to the state circuit court; (8) the counting roomwould be open to the public and the press; and (9) the circuit courtwould aim to complete the count by 2:00 p.m on Sunday. LewisHrg. Tr. 1-8; Order on Remand 1-2.

As for the other counties, the circuit court established thefollowing guidelines: (1) only "undervotes" would be reviewed;(2) the Canvassing Boards would be directed to implementprocedures for manually counting the votes, just as they havetraditionally done under existing Florida law; (3) judges fromthroughout the State could be requested to help resolve disputesthat might arise during the recounts; (4) by 12:00 p.m. Saturday,December 9, 2000, the County Canvassing Boards would berequested to fax their plans, protocols, and estimated timeschedules to the Leon County Court administrator for the court'sreview; and (5) the Boards would aim to complete their work by2:00 p.m. Sunday. Lewis Hrg. Tr. 1-8; Order on Remand 2-3.

The circuit court applied the Florida Supreme Court's holdingthat the counting teams were to follow the traditional legalstandard under Florida law, as set forth by the Supreme Court, fordetermining whether a valid vote has been cast. In short, thecircuit court's guidelines set forth a conventional, uniform processfor implementing the court-ordered counting of votes in accordwith the Florida Legislature's designated manner of conductingelections. The procedures put in place promise to produce a full,fair, and accurate state-wide count of the undervote in accordancewith the Florida Supreme Court's ruling that faithfullyimplemented the applicable provisions of Florida's Election Code,which unambiguously provides for judicial determination ofelection contests. See Fla. Stat. § 102.168.

By Order of December 9, 2000, this Court granted a stayhalting the ongoing counts. The Court also treated the StayApplication as a Petition for Certiorari, which it granted.


This Court should immediately vacate its stay and affirm theFlorida Supreme Court's judgment.

I. The Florida Supreme Court's decision is fully consistentwith Article II, § 1, cl. 2. Petitioners' primary argument to thisCourt -- which is flatly contrary to petitioners' position in theFlorida courts -- is that the mere assertion of appellate jurisdictionby the Florida Supreme Court violated Article II, § 1, cl. 2. Thisargument lacks merit because Article II, § 1, cl. 2 presupposes theexistence of authority in each state to structure the internalprocesses and organization of each of its governmental branches;judicial review and interpretation of Florida's election statutes isa necessary legislative assumption. In any event, the FloridaLegislature itself drafted, proposed, and approved throughbicameral passage the very provisions of its constitution thatprovide for appellate jurisdiction. The grant of jurisdictioncontained in those provisions, as much as an ordinary Floridastatute granting courts jurisdiction, thus was accomplished by theLegislature. Further, petitioners' newfound argument is alsoforeclosed by this Court's longstanding precedents. See, e.g.,Smiley v. Holm, 285 U.S. 355 (1932); State ex rel. Davis v.Hildebrant, 241 U.S. 565 (1916); McPherson v. Blacker, 146 U.S.1 (1892).

In addition, petitioners' pejorative characterizations of theFlorida Supreme Court's decision are unfounded and highlyirregular. In its ruling, the Florida court did not "make law" orestablish any new legal standards that conflict with legislativeenactments. Rather, the court engaged in a routine exercise ofstatutory interpretation that construed the Florida Election Codeaccording to the Legislature's designated "manner" for choosingelectors in a statewide election. See Fla. Sta. § 103.111.

II. Petitioners' argument under 3 U.S.C. § 5 is insubstantial.It is not at all apparent how petitioners' current incarnation of thisargument even raises a federal question: it is clear -- and not nowcontested by petitioners -- that 3 U.S.C. § 5 simply establishes asafe harbor for States that wish to make use of it. There is nodispute here about the meaning of 3 U.S.C. § 5. And there can beno doubt that the Florida Supreme Court was attentiveto the termsof the statute and took into account the relevance of 3 U.S.C. § 5in determining the intent of the Florida Legislature. In any event,nothing in the decision below even remotely creates "new law" ina manner that runs afoul of the terms of 3 U.S.C. § 5, or thataffects Florida's entitlement to that provision's safe harbor. Thecourt engaged in a perfectly ordinary exercise of statutoryconstruction, and it surely cannot be the case that the law"changes" when a jurisdiction's highest court settles the meaningof state law. In fact, because the circuit court's decision departedfrom the plain language of the Florida Election Code, underpetitioners' theory reversal of the judgment below will depriveFlorida's electors of the safe harbor of Title 3.

III. Finally, the Florida Supreme Court's judgment is fullyconsistent with equal protection and due process. Until now,petitioners have steadfastly taken the position before the Floridacourts that, consistent with settled Florida law, a contest action isthe proper means by which respondent should challenge the votecount in this election. It is inconsistent for them now to object tothe very contest procedure they previously endorsed.

Moreover, contest actions under Florida law relate only to theballots which one side or the other contests -- virtually everyFlorida election contest case involves a small fraction of the votescast in the contested election.

In any event, the Florida Supreme Court's order to review theballots from Miami-Dade County is consistent with establishedstate law. The Florida Supreme Court's order of a manualtabulation of ballots that were recorded as "no votes" is alsoconsistent with state law. Nor does the "voter intent" standard setby Florida law violate the Equal Protection Clause.

The Florida Supreme Court has ordered not the "selective"recount of which petitioners have complained but a statewiderecount of all uncounted ballots in every Florida county that hadnot already completed a manual recount. Indeed, the FloridaSupreme Court expressly granted petitioners the relief they soughtwith respect to a statewide recount; petitioners are in no positionto complain about a point on which they prevailed.

Petitioners' allegations about the manner in which they saythemanual counts have been conducted have no support in the recordand are based on unsubstantiated rumors, untested "evidence," andbiased ex parte submissions. In fact, the recounts have beenconducted in full public view by counting teams made up ofrepresentatives from different political parties, with thesupervision of a three-member canvassing board that includes asitting county judge and review by the Florida judiciary. Thecircuit court developed lengthy and detailed guidelines to ensureuniformity and accuracy. If there are anecdotal instances ofisolated mistakes or inaccuracies during recounts, petitioners haveample remedies available to them under Florida law and Floridaprocedure to secure full redress. In the end, petitioners' argumentamounts to a charge that the system of manual recounts, expresslyauthorized by Florida statute and previously used in innumerableinstances over the years by Florida (and States throughout thecountry) is unconstitutional on its face. Such an ambitious andfar-reaching claim has no legal support whatsoever.

The judgment should be affirmed. Because of the pressingneed to complete the counting of votes, we ask that the stay belifted immediately.


I. Article II Provides No Basis to Override the FloridaSupreme Court's Decision.

Petitioners contend that the Florida Supreme Court's decision"established new standards * * * that conflict with legislativeenactments and thereby violate Article II, Section 1, Clause 2 ofthe United States Constitution." Stay App. at 2 (QuestionPresented 1).

Six days ago, in Bush v. Palm Beach County, No. 00-836, 531U.S. __ (U.S. Dec. 4, 2000) (per curiam), this Court addressed aclaim put forward by petitioner Bush that the decision of theSupreme Court of Florida in Harris v. Palm Beach County underthe Florida Election Code's protest provision (Fla. Stat. § 102.166)ran afoul of this same constitutional provision. Petitioner thereargued that "Article II precludes judicial lawmaking." See BushBr. in Palm Beach County at 46. In particular, petitioner Bushrelied upon McPherson v. Blacker, 146 U.S. 1, 35 (1892), for theproposition that, in interpreting state statutes relating to theappointment of electors, the Florida court had run afoul of theprovision of the U.S. Constitution giving the state legislature thepower to determine the manner of appointment of electors.Petitioner Bush argued that the infirmity in the Harris decisionwas that the Florida court's construction of the provisionsconcerning certification of election results did not rest on "anystatute." Bush Br. in Palm Beach County at 47. Petitioner Bushdid not suggest that the Florida Supreme Court was disabled fromexercising appellate review in that case -- even though the protestprovision of Section 102.166 (unlike the contest provision ofSection 102.168) makes no reference at all to judicial review byany Florida court. Nonetheless, petitioner Bush freelyacknowledged that the Florida Court could issue "directive[s]founded in pre-existing law." Bush Br. at 48. "Petitioner hasnever contended that state courts * * * are precluded by Article IIfrom construing laws relating to elections." Bush Reply Br. inPalm Beach County at 9 n.6.

This much was common ground about Article II underlyingthis Court's per curiam opinion in Palm Beach County. ThisCourt, of course, "decline[d] * * * to review the federal questionsasserted" by petitioner Bush "to be present." Slip op. at 6. It didso because there was "ambiguity" about "the extent to which theFlorida Supreme Court saw the Florida Constitution ascircumscribing the Legislature's authorityunder Art. II, § 1, cl. 2."Id. at 7. Specifically, this Court could not determine whether theFlorida court intended that its conclusions rest solely upontraditional canons of statutory interpretation, or depended upon thestate constitution as an independent and overriding source of law.2

2 See id. at 5 ("There are expressions in the opinion of the Supreme Courtof Florida that may be read to indicate that it construed the Florida ElectionCode without regard to the extent to which the Florida Constitution could,consistent with Art. II, § 1, cl. 2, 'circumscribe the legislative power.' Theopinion states, for example, that 'to the extent that the Legislature may enactlaws regulating the electoral process, those laws are valid only if theyimpose no "unreasonable or unnecessary" restraints on the right of suffrage'

Indeed, this Court exercised jurisdiction by vacating the judgmentbelow. See id.

1. Recognizing that they have no good claim under the ArticleII theory presented to this Court just six days ago, petitioners nowput forward a radical new proposition in the name of Article II:that the highest appellate court of the state may not exercise itsordinary appellate jurisdiction over decisions of lower state courtswhere its jurisdiction is granted by the state constitution ratherthan in legislation dealing specifically with presidential elections.

Even apart from the absurd theory that McPherson requireseverything relevant to a state's process for choosing electors to bepacked into a specialized presidential electoral code, the verypremise of petitioner's argument is fatally flawed because theFlorida Legislature re-enacted the contest statute in 1999 againstthe settled background rule that decisions of circuit courts incontest actions are subject to appellate review. See, e.g.,Beckstrom v. Volusia County Canvassing Bd., 707 So. 2d 720(Fla. 1998); Harden v. Garrett, 483 So. 2d 409 (Fla. 1985);Bolden v. Otter, 452 So. 2d 564 (Fla. 1984); McPherson v. Flynn,397 So. 2d 665 (Fla. 1981). "It is an elementary principle ofstatutory construction that in determining the effect of a laterenacted statute, courts are required to assume that the Legislaturepassed the latter statute with knowledge of the prior existinglaws." Romero v. Shadywood Villa Homeowners Ass'n, 657 So.2d 1193, 1195-96 (Fla. Dist Ct. App. 1995). Under Florida law,therefore, in referring to the "circuit court" in Section 102.168, theLegislature necessarily intended to encompass the ordinaryaccouterments of appellate review of circuit court decisions. Cf.Marbury v. Madison, 5 U.S. 137, 177 (1803) ("It is emphaticallythe province and duty of the judicial department to say what the

guaranteed by the state constitution. App. to Pet. for Cert. 30a. Theopinion also states that 'because election laws are intended to facilitate theright of suffrage, such laws must be liberally construed in favor of thecitizens' right to vote . . . .' Ibid.").

law is."). Under Florida law, legislative provisions grantingjurisdiction to the Circuit Court, without any express limitations,are always taken to include appellate review. See, e.g., State v.Sullivan, 116 So. 255 (Fla. 1928); Cote v. State, 760 So. 2d 162(Fla. Dist. Ct. App. 2000), rh'g denied (May 8, 2000). Itaccordinglyis no surprise that the Legislature filed an amicus briefin this Court in the Palm Beach County matter that expresslyrecognizes the jurisdiction of the state's Supreme Court. Br. ofFlorida Senate & House of Representatives, No. 00-836, Bush v.Palm Beach County Canvassing Board, at 9 ("Florida has in placean election code for the resolution of disputes and a court system,including a Supreme Court, with the usual judicial powers of suchcourts." (emphasis added)). Thus, the statute itself supplies thenecessary authority for review here.

Even petitioners do not try to explain why the Legislaturewould have wanted to endow a single circuit judge with finalauthority to decide these cases. Instead, all indications are that theLegislature intended this statute to be governed by the settledprinciple of Florida law that the state supreme court has appellatejurisdiction over all matters determined in the lower courts unlessthe Legislature expressly precludes such review. See, e.g.,Leanard v. State, 760 So. 2d 114, 118 (Fla. 2000) (Florida statutesare traditionally construed to preserve judicial review "rather thanlimiting the subject matter of the appellate courts"). That, ofcourse, is a principle with which the Florida Legislature is quitefamiliar.

2. In any event, it is plain that Article II would not have beenimplicated at all had the court below premised its jurisdiction onthe Florida Constitution, because Article II, § 1, cl. 2 presupposesthe existence of authority in each state to structure the internalprocesses and organization of each of its governmental branches;and because, in any event, the Florida Legislature itself drafted,proposed, and approved through bicameral passage the veryprovisions of its constitution that provide for appellate jurisdiction.The grant of jurisdiction contained in those provisions, as much asan ordinary Florida statute granting courts jurisdiction, thus wasaccomplished by an act of the Legislature, and nothing in ArticleII, § 1, cl. 2, requires that all the provisions bearing on theselection of presidential electors be located exclusively in aseparate statute devoted solely to that end -- even assuming that alegislature, exercising its power under Article II, could by expressprovision eliminate judicial review for any contests arising out ofthe choice of Presidential electors, or confine that review to thefinal determination of trial judges. The issue here is whether theFlorida legislature has done that. It has not.

Under Florida law, an amendment or revision to the stateconstitution may be undertaken "by joint resolution agreed to bythree-fifths of the membership of each house of the legislature."Fla. Const. art. 11, § 1. Pursuant to that method, the Legislaturedrafted, proposed, and approved the constitutional provision thatconfers jurisdiction on the state supreme court. See Fla. Const.Art. 5, § 3(b). That provision originated as a Senate JointResolution and was approved by concurrent votes of both housesof the state legislature in 1971. See S.J.R. No. 52-D (1971). Itwas ratified by Florida's voters in 1972. See West's Fla. Stat.Ann., Fla. Const., art. V. The relevant jurisdictional provisions ofthe constitution were further revised, again at the proposal and onthe vote of both houses of the Florida Legislature, in 1980. SeeS.J.R. No. 20-C (1980); West's Fla. Stat. Ann., Fl. Const., art. V(historical notes).

This process plainly satisfies any Article II requirement thatcontests regarding presidential electors proceed under rulesdevised by the state legislature. That it was contained in ameasure not dedicated to the presidency and the Electoral Collegeas such is without constitutional significance. Petitioners couldnot respond to this seemingly self-evident point by arguing thatnothing but state "legislation," and perhaps state "electoral collegelegislation," is contemplated by Article II. That provision's plainterms mandate only that a State's electors be appointed "in suchManner as the Legislature" thereof may direct; it does not requirethat the legislature must act by enacting a bill into law, as opposedto other means of direction. Indeed, this Court has so held. SeeMcPherson v. Blacker, 146 U.S. 1, 29 (1892).3

Nor is this conclusion undermined by the fact that stateconstitutional provisions in Florida, after proposal and passage bythe Legislature, are ultimately ratified or adopted by the voters.Indeed, this Court has squarely held that the analogousconstitutional provision in Article I, § 4, which vests statelegislatures with the power to prescribe the manner for selectingrepresentatives to Congress, is consistent with a legislativeexercise of authority made subject to popular referenda. See Stateex rel. Davis v. Hildebrant, 241 U.S. 565 (1916). By the sametoken, state legislation -- which petitioners insist must governpresidential election disputes -- is passed by the Legislature buttakes effect only when approved by the governor. It is beyondperadventure that the presence of this part of the state lawmakingscheme does not violate a constitutional delegation to the state"Legislature," even when the executive power is used to vetolegislation adopted by the Legislature. See Smiley v. Holm, 285U.S. 355 (1932) (delegation to each State's "Legislature" in Art.I, § 4 of the authority to prescribe the "Times, Places and Mannerof holding Elections for Senators and Representatives," U.S.Const. art. I, § 4, does not preclude the State's governor fromvetoing a state congressional reapportionment law). The pointtherefore seems inarguable: in exercising jurisdiction in this case,the Florida Supreme Court acted in precisely the "[m]anner"directed by the Legislature.4

3 Of course, it is common ground that the means chosen by the legislatureare subject to constraints imposed by other provisions of the federalConstitution, for example, Article II, § 1, cl. 4, and the FourteenthAmendment.

4 Although it is not directly relevant here, we note that the same principlesgovern application of Art. 1, § 1 of the Florida Constitution, which was atissue in Palm Beach County. That provision also was approved by theLegislature and presented to the voters as part of a significant constitutional

Petitioners appear to argue that, under McPherson, thejurisdiction of the state supreme court may not be premised on theFlorida Constitution because the U.S. Constitution "does notpermit state constitutions to override a state legislature's selectionof the manner of choosing electors." Stay App. at 25. But at mostthis case involves interpreting a state legislature's mode ofselection, not overriding it. Moreover, in McPherson; the Courtin that case noted, without question, that the ColoradoConstitution of 1876 "prescribed" the selection of electors by thelegislature of the newly admitted State. 146 U.S. at 33. Further,an 1874 Senate report quoted in McPherson referred to theappointment of electors as provided in a state constitution. See 35 ("Whatever provisions may be made by statute, or by thestate constitution, to choose electors by the people, there is nodoubt of the right of the legislature * * * ." (emphasis added)).

Even under the most aggressive reading of McPherson,however, petitioners' argument is insubstantial.5 As the Courtindicated in Palm Beach County, McPherson might be read tosuggest that it is impermissible for a state constitution to

revision and re-enactment in 1968. See Florida Soc'y of Opthalmology v.Florida Optometric Ass'n, 489 So. 2d 1118, 1122 n.2 (1986) (Ehrlich, J.,specially concurring); Joseph W. Little, The Need to Revise the FloridaConstitutional Revision Commission, 52 FLA. L. REV. 475, 476 n.8 (2000).At the time of that action, the Legislature surely was aware that theprovision had long been understood to emphasize the importance of the rightto vote. See, e.g., State v. Bird, 163 So. 248, 252 (Fla. 1935).

5 And, indeed, were it the proper reading, this Court would not haveremanded in Palm Beach County. In that case, the Florida Supreme Courtexpressly relied on Article V of the Florida Constitution as the basis fo r itsjurisdiction. See Slip op. at 5. This Court did not express any concernabout the Florida court's exercise of its appellate jurisdiction in that case.Rather, it said that it could not precisely determine the "grounds for thedecision" below. See Palm Beach County Canvassing Board, Slip op. at 6(internal quotation marks and citation omitted). If this Court had thoughtthat the mere exercise of jurisdiction under a state constitution was improper,it would not have had to remand the case for clarification.

"circumscribe the legislative power" regarding the process forselecting electors. 146 U.S. at 25. Whatever might be the rulewhere a state constitution was not passed by the state legislature,here, far from "circumscrib[ing] the legislative power," theLegislature itself, as noted above, proposed and passed the stateconstitutional provision that petitioners insist governed this action.And it surely cannot be the case that Article II of the U.S.Constitution precludes state legislatures from using stateconstitutional mechanisms to resolve controversies concerningelectors, if that is the "[m]anner" of appointment that thelegislature "direct[s]." Indeed, any such rule of preclusionnecessarily would run afoul of petitioners' own reading of ArticleII, under which legislatures have carte blanche in determining themanner of appointment. Article II cannot be read to swallowitself.

Nor is this even a case where a constitutional provisioninitially promulgated by the Legislature was later asserted toprevent enforcement of a state statute, which was the issue raisedby this Court's Palm Beach County opinion. Nothing of the sortis going on here. To the contrary, Article V of the FloridaConstitution and Fla. Stat. § 102.168 are entirely consistent withone another -- and there is every reason to believe that theLegislature intended and expected that participants in electioncontests would make use of the appeals process as a means ofclarifying, interpreting, and enforcing thelaws. Under petitioners'own approach, then, Article II of the U.S. Constitution requiresthat the right to appeal put in place by the Florida Legislature mustgovern here.

Finally, petitioner's argument is directly refuted by State exrel. Davis v. Hildebrant, 241 U.S. 565 (1916), in which this Courtheld that Article I, § 4, allowing States to prescribe the manner inwhich representatives to Congress are elected, does not precludethe state supreme court from exercising jurisdiction over suchmatters even though that jurisdiction is premised squarely on thestate constitution. Id. at 568-70. This precedent completelyundercuts petitioners' argument that the Florida Supreme Court,by invoking its jurisdiction under Article V of the FloridaConstitution, is completely disabled from playing its ordinary roleas the highest court of the state when questions arise concerningthe laws that relate to the appointment of electors. Indeed,McPherson itself was an original mandamus action in theMichigan Supreme Court. See 52 N.W. 469, 470, aff'd, 146 U.S.1. This Court affirmed on the merits.6

3. Even if the Florida Supreme Court's authoritywere thoughtto stem only from the Florida Constitution, not the statute, andeven if that constitution had not been enacted by the Legislature,exercise of that authority still would not violate Article II.

a. To begin with, the theories put forward by petitioner Bush

6 In any event, this argument was not properly raised below. At oralargument, petitioners' counsel conceded in response to direct questioningthat the Florida Supreme Court had jurisdiction in this case, despite ArticleII. After argument, petitioners filed an untimely "clarification of argument"that was not accepted by the Court below. Even in that filing, petitioners didnot argue, as they do here, that Article II disabled the Florida SupremeCourt from exercising appellate jurisdiction. To the contrary, they said onlythat the "relief" sought by respondent was barred by Article II. See BushClarification at 2-3.

This is an appeal from a state court judgment, under 28 U.S.C. § 1257.That statutory authority prevents this Court from deciding federalconstitutional claims that are raised for the first time before it in appealsfrom state court decisions. See Adams v. Robertson, 520 U.S. 83, 88 (1997)(per curiam); Cardinale v. Louisiana, 394 U.S. 437, 438-39 (1969). Beforea claim may be considered here on appeal, it must "'be brought to theattention of the state court with fair precision and in due time.'" Street v.New York, 394 U.S. 576, 584 (1969) (quoting New York ex rel. B ryant v.Zimmerman, 278 U.S. 63, 67 (1928)). This rule is mandated by principlesof federalism that require respect for state courts which have acted incomplete good faith in reaching decisions that may involve questions offederal law. In this case, petitioners were asked at oral argument, directlyand repeatedly, whether Article II disabled the court below from adjudicatingthe appeal and they insisted that it did not. They never departed from thatposition before the Florida Supreme Court, even in their untimely post-argument submission.

in Palm Beach County and here are based on misreadings ofArticle II and of this Court's precedents. Should the Court in thiscase reach the issue reserved in Palm Beach County, it shouldconclude that a state court need not avoid use of the stateconstitution in construing legislation.

The state courts would be strange places indeed if Article IIdisabled them, in construing statutes enacted pursuant toconstitutional grants of power to the "Legislature," from placingany reliance on state constitutions. The only authority cited bypetitioners for that proposition, McPherson v. Blacker, actuallysupports the opposite conclusion: that the state courts, ininterpreting state statutes enacted pursuant to the delegation ofauthority in Article II, may rely on all the sources of law theyordinarily bring to the task of interpreting state laws.

McPherson does state in dictum that the delegation to thelegislature in Article II "operate[s] as a limitation upon the Statein respect of any attempt to circumscribe the legislative power."146 U.S. at 25. And undoubtedly it is true that, except by actionof the legislature, the State could not purport to vest the power todirect the manner of the appointment of electors in any other bodyor individual.

But McPherson makes equally clear that, once a statelegislature has enacted laws in exercise of its power to direct themanner of appointment of electors, the state courts may interpretthose laws precisely as they would any other state legislativeenactment. The Court's opinion explains that state statutes andthe state constitution may be used by state courts in determiningthe precise scope of the right to vote for electors when such a rightis conferred by state legislation. "Whenever presidential electorsare appointed by popular election * * * [t]he right to vote [grantedthereby] * * * refers to the right to vote as established by the lawsand constitution of the State." 146 U.S. at 39 (emphasis added).Indeed, in McPherson itself, the state supreme court below hadmeasured the statute providing for the appointment of electors forconformity with "the state constitution and laws," and this Courtconcluded that it was "not authorized to revise the conclusions ofthe state court on these matters of local law." Id. at 23. This veryconclusion is enough to dispose of petitioners' basic Article IIclaim: the state courts are not disabled from applying their stateconstitutions when they interpret legislation enacted pursuant toArticle II.

Nor does Article II create a "state-constitution-free" zone in astate's law -- even assuming it would be possible to pull the threadof state constitutional law out of the fabric of a state's law whenadministering or adjudicating questions bearing on elections forPresident and Vice President. State constitutions provide thenecessary framework for a wide range of practices necessaryto theconduct of elections held for the purpose of appointing electors,including a variety of actions by the executive and judicialbranches of state government. Indeed, state constitutionsdetermine the very nature and composition of the state legislaturethat is given the power to determine the method for theappointment of electors under Article II. Compare Fla. Const. art.III, § 1 (creating a bicameral legislature) with Neb. Const. art. III,§ 1 (creating a unicameral one). They impose quorumrequirements, qualifications of members, voting standards, andother rules necessary to enable the legislature to function. See,e.g., Fla. Const. art. III, § 2 (members); id. § 3 (sessions); id. § 4(quorum and procedures); id. § 7 (passage of bills); id. § 15(qualifications). In a very real sense, the state legislature is acreature of the constitution that creates it, and any attempt toisolate one from the other would give rise to a host of unforeseenpractical and legal problems.7

b. The threshold inquiry under Article II is whether the state

7 The absurdity of petitioners' view can be illustrated another way: if astate legislature's "plenary" power over the appointment of Presidentialelectors cannot be circumscribed by any outside authority (including the stateconstitution), then it would seem to follow that this Court might well lackjurisdiction to entertain this very case , for Congress would have no authorityto confer jurisdiction to review these matters under 28 U.S.C. § 1257.

constitution "circumscrib[ed] the legislature's authority," and herethe application of the Florida Constitution is fully consistent withArticle II because there is every indication that the Legislatureintended to provide appellate review in contest actions, noteliminate it.

For example, suppose that the Legislature had enacted aprovision stating: "To promote expeditious resolution of electiondisputes, there shall be no appellate review of the decisions ofcircuit courts in contest actions." If the Florida Supreme Courthad held that provision invalid under the Florida Constitution, anissue would then arise under Article II regarding the validity of theprovision for contests of Presidential elections. Here, where theconstitutional provision for appellate review merely supplementsthe Legislature's scheme -- much like judicial rules of procedureor evidence or principles of statutory construction -- and does notinvalidate a choice made by the Legislature, the principle set forthin McPherson is not implicated at all. See 146 U.S. at 39-40; seealso id. at 24-26; Leanard, 760 So. 2d at 118 (Florida statutes aretraditionally construed to preserve judicial review "rather thanlimiting the subject matter of the appellate courts").8

4. Petitioners also raise a claim that the Florida SupremeCourt's decision violates Article II because the Court below"over[rode]" the state legislature in its construction of state law.App. for Stay at 25-27.

a. To begin with, there is no warrant in Article II, inMcPherson, or in Palm Beach County, for the contention thatsome statutorily-based decisions of state law -- those with no"precedent," Stay App. 25 -- violate Article II because they are

8 More generally, Article I of the Constitution states that " All legislativePowers herein granted shall be vested in a Congress of the United States."Petitioners' argument would seem to mean that this express grant ofauthority to the Legislature precludes judicial review. That, of course, hasnever been this Court's view. See, e.g., United States v. Morrison, 120 S.Ct. 1740 (2000).

"legislative" and not "judicial" in character. Here petitionersessentially resurrect -- now in Article II guise -- the extraordinaryTeague argument that they made in Palm Beach County. Cf.Teague v. Lane, 489 U.S. 288 (1989). They argue, with absolutelyno authority, that "newly announced judicial extensions" of priorprecedent in this context, Stay App. 25, violate the federalconstitution.

But even Teague does not hold that "new rules" are legislativeacts. Indeed, under Teague "new rules" may be announced by thisCourt on direct review of decisions of the State's highest courts.See, e.g., Johnson v. Texas, 509 U.S. 350, 352 (1993). UnderArticle III, the federal courts are provided only with "judicial"authority; separation of powers principles prohibit them from"legislating." Yet, until now, it has never been suggested thatthese principles mean that federal courts cannot engage instatutory interpretation that amounts to a "newly announcedjudicial extension[]" of prior law. Petitioners' attack on thejudicial function would disrupt state government by crippling theprocess of legislative interpretation at the time it is needed most.9

In any event, there are no judicial "extensions" involved in the

9 The kind of federal superintendence over state court decisions petitionerswould have this Court implement would also turn decisions like Teague ontheir head. Teague is animated by principles of federalism and respect forstate courts as "coequal parts of our national judicial system." Sawyer v.Smith, 497 U.S. 227, 241 (1990). Petitioner would instead use a limitation on"new" judicial interpretations as a sword by which th e federal jud iciary, inchallenges involving presidential electors, would supervise state courts'application of state law to determine whether those cour ts correctly discernedand applied local law. Petitioner would have the federal judiciary issue orders-- pursuant to state law -- regarding the details of state certification and contestprocedures whenever the federal courts concluded that the state judiciarydeparted in any way from pre-existing state statutes. Far from honoring statecourts, the standard proposed by petitioners would trigger dramatic federalintrusion into the state judicial process. This result cannot be squared withprinciples of federalism or with the long history of statutory interpretation bystate courts in the post-election context.

decision below. The Florida Supreme Court employed thesubstantive standards expressly set out in the Florida contestprovision, and the other Florida statutes on which it relied.Indeed, under petitioners' own theory, a reversal of the judgmentbelow and a reinstatement of the circuit court opinion -- whichdeclined to use the standards contained in the plain text of therecently-enacted amendments to the contest provision -- wouldviolate Article II.

A discussion of the particular state law issues cited bypetitioners confirms that the decision below is a routine exampleof statutory construction that is entirely consistent with Article II,and that petitioners' claims are nothing more than animpermissible attempt to persuade this Court to redetermine thesestate-law issues. Significantly, despite the division on the courtbelow with respect to the relief granted, there was significantconsensus with respect to the questions of statutory interpretation:six of the seven justices agreed on the issues of statutoryinterpretation. Slip op. at 13-20; see also id. at 61-63 (Harding andShaw, JJ., dissenting). Petitioners' contentions before this Courtultimately reduce to empty assertions with little in the way ofsupport.

First, petitioners claim that the Section 102.168 contest actiondoes not apply to Presidential elections. However, as the FloridaSupreme Court explained, Slip op. at 6 n. 7, petitioner Bush, theFlorida Legislature, and the Florida Secretary of State all took theposition before that court that the contest action was available.Indeed, petitioner Bush himself filed a third-partycomplaint in thecircuit court in this case, invoking Section 102.168 with respect tothe Presidential election.10

10 The single case cited by petitioners-- Fladell v. Florida ElectionsCanvassing Comm'n -- was an intermediate appellate decision later vacatedby the Florida Supreme Court, which expressly held that "the Court'srulings thereon are a nullity." See Fladell v. Florida Elections CanvassingComm'n, Nos. 00-2372 & 00-2376, Slip op. at 4 (Fla. Dec. 1, 2000).

In an abrupt about-face, petitioner now suggests that, when astate legislature exercises its "plenary authority" under Article II,it must write specific rules to govern only that unique exercise ofauthority. This suggestion is both unjustified and unrealistic. Ifa legislature decides to hold an election to select Presidentialelectors, it typically assumes that all of the laws, rules, andregulations contained in the state election code will be applicable.And, indeed, all of the States rely on generally applicableprovisions of their election laws in carrying out their periodicresponsibility of selecting electors for President and VicePresident.

Second, petitioners assert that the court below "essentiallyoverruled" two subsections of Section 102.166 by ordering arecount of less than all of the ballots cast. However, as the FloridaSupreme Court explained, the Section 102.166 protest remedy isentirely separate from the Section 102.168 contest remedy. Slipop. at 13; see also id. at 61 (Harding and Shaw, JJ., dissenting)(agreeing that the two remedies are separate). And whatever therestrictions on the county canvassing boards' authority underSection 102.166, the Legislature expressly granted the courtsextraordinarily broad remedial authority in contest actions (seeSection 102.168(8)), and it is that authority which is the basis forthe determination below.

Third, contrary to petitioners' contention, Stay App. at 26, thecourt below did not rely on the prior opinion that this Courtvacated in Palm Beach County. It merely pointed out that acanvassing board's failure to complete the recount by the datespecified in the court's opinion (which governed protest remedies)did not forever bar any legal votes identified in that recount frombeing included in the ultimate vote totals (as a possible contestremedy). Slip op. at 34-35. Petitioners' reference to the BrowardCounty votes, Stay App. at 26, is mystifying because the countingof those votes was not an issue in the court below.

Fourth -- and somewhat inconsistently -- petitioners attack theFlorida Supreme Court for refusing to go beyond the statutorystandard for a legal vote -- the clear intent of the voter, Fla. Stat. §101.5614(5) -- and hold that indented ballots may never constitutelegal votes. Stay App. at 27. Here, the court's opinion simplyrecognizes and faithfully adheres to the statutory test; it is difficultto understand how this fidelity to the legislative enactments of theState could possibly violate Article II. If the court had gonebeyond the express statutory provision to provide further guidance,petitioners would presumably have argued that such guidanceimpermissibly made new law.b. It must be noted that the federal claim asserted in PalmBeach County is completely absent here. There is no indicationwhatsoever in the lower court's opinion that it "saw the FloridaConstitution as circumscribing the Legislature's authority" underthe federal Constitution. Indeed, the Florida Supreme Courtclearly recognized the limitations imposed by Article II -- itexpressly acknowledged them at the outset of its opinion. Slip 5 ("These statutes established by the legislature govern ourdecision today.") Accordingly, no federal question (and hence nobasis for reversal) is even presented in this case under Palm BeachCounty or Article II.

Petitioners nonetheless impugn the Florida Supreme Court ingeneral terms, arguing that it violated Article II when it"substituted its judgment for that of the legislature" and "rewr[ote]th[e] statutory scheme" governing the appointment of presidentialelectors in various respects. Stay App. at 23.

But here, unlike in Palm Beach County, the Florida SupremeCourt's opinion makes clear that it did not rely upon the FloridaConstitution even in construing the election law. The court basedits interpretation on entirely conventional tools of statutoryconstruction, including statutory text, traditional canons, andrelevant precedents; in other words, it engaged in altogetherroutine statutory interpretation.

Petitioners' argument here thus is either that the FloridaSupreme Court deliberately misrepresented the basis for itsdecision by saying it was interpreting Florida statutory law whenit was actually doing something else entirely -- or that Florida'shighest court seriously erred in interpreting Florida law. Eithercontention contradicts the "general rule" that "this Court defers toa state court's interpretation of state law." Palm Beach County,Slip op. at 4. And, were this Court to adopt petitioners' view ofArticle II, it would be required to second-guess every state lawruling by a state court bearing in any way on a presidential electionto determine whether the lower court was attempting to disguisesome other and improper basis for decision or had just gotten thestate law wrong.

Nor is petitioners' argument consistent with this Court'sdecision in Palm Beach County in which the Court remanded thecase for the Florida Supreme Court's clarification of the basis ofthat Court's decision.

Finally, as this Court is well aware, the process of statutoryconstruction is the process of determining how to resolve issuesthat are not conclusively determined by the language of the statute.Unavoidably, petitioners take the position that Article II bars acourt from engaging in this routine and obviously essentialprocess: if an issue is not explicitly and unambiguously addressedin the language of the statute or in a prior decision that is preciselyon point, then the court has usurped the Legislature'sconstitutionally delegated power. Nothing in Article II so limitsthe courts' authority. Indeed, the fact that the provisions forelection contests in Section 102.168 apply broadly to all electionsconfirms the Legislature's intent that the courts are to exercisetheir usual role as neutral umpires who interpret the law to resolvedisputes.

II. The Florida Supreme Court's Decision Is Consistent With3 U.S.C. § 5.

The Court is by now familiar with petitioners' ever-shiftingreading of 3 U.S.C. § 5. First, petitioners maintained that Section5 was a flat federal prohibition on the determination of electioncontroversies through laws enacted after election day. Pet. for.Cert., No. 00-836, at 4-8. In their merits brief, they subsequentlyacknowledged that Section 5 on its face constituted only a safeharbor, but urged this Court to infer a broader prohibition assupposedly necessary to effectuate Congress' intent. Br. for Petr.Bush at 17-19, 27-29. Now, they attempt without explanation toconvert this Court's direction in the Palm Beach County case thatstate courts should be aware of the safe harbor provided by Section5 in determining legislative intent, see Stay App. at 29 (quotingPalm Beach County, Slip op. at 6), into a jurisdictional basis forthis Court to invalidate the Florida Supreme Court's decision, 30. Petitioners' argument fails both because Section 5constitutes only a safe harbor from a challenge in Congress to astate's slate of electors and because the decision below did notconstitute a change in Florida law.

1. The Florida Supreme Court Was Fully Attentive To TheImpact Of Its Decision On The Safe Harbor Of 3 U.S.C. § 5.From the outset, the Florida Supreme Court was attentive toSection 5's requirements, consistent with this Court's directivethat "a legislative wish to take advantage of the 'safe harbor'would counsel against any construction of the Election Code thatCongress might deem to be a change in the law." Palm BeachCounty, Slip op. at 6. Thus, the court acted fully "cognizant of thefederal grant of authority derived from the United StatesConstitution and derived from 3 U.S.C. § 5," which statute thecourt quoted in full. Slip op. at 5-6. And the court made clear thatits decision rests on the contest process set out in Section 102.168,"which laws were enacted by the Legislature prior to the 2000election." Slip op. at 6.

2. The Text And Legislative History Establish 3 U.S.C. § 5Exclusively As A Safe Harbor. Petitioners' attempt to derive ajudicial remedy from 3 U.S.C. § 5 conflicts with Congress'avowedly narrow purpose in enacting the statute. As respondentdeveloped at length in his opening brief in the Palm Beach Countycase, see Resp. Br. at 21-30, and as we recount more summarilyhere, 3 U.S.C. § 5 serves no purpose other than to insulate a state'sslate of electors from challenge in Congress. Section 5 purportsto set out a rule by which the Houses of Congress shall determinewhich electors for President of the United States from a particularState will be entitled to have their votes counted if more than onereturn purporting to contain the electoral votes of that State isreceived by the President of the Senate. Tellingly, Florida's ownLegislature, appearing as an amicus before this Court in the PalmBeach County case, rejected petitioners' broader reading ofSection 5.

The statute provides that "if" certain rules are followed by aState in making its "final determination of any controversy orcontest concerning the appointment of all or any of the electors ofsuch State * * * such determination * * * shall be conclusive, andshall govern in the counting of the electoral votes as provided inthe Constitution, and as hereinafter regulated, so far as theascertainment of the electors appointed by such State isconcerned." 3 U.S.C. § 5. The regulation "hereinafter" to whichthe statute refers is 3 U.S.C. § 15, which announces a rule bywhich the Houses of Congress will decide which electors' votesare to count when the President of the Senate receives "more thanone return or paper purporting to be a return from a State." 3U.S.C. § 15. In such a case, Section 15 provides that "those votes,and those only, shall be counted which shall have been regularlygiven by the electors who are shown by the determinationmentioned in section 5 of this title to have been appointed, if thedetermination in said section provided for shall have been made."Id.

The legislative history of 3 U.S.C. § 5 confirms theunderstanding that it is focused exclusively on Congress andprovides only an option. That history establishes conclusively thatthe statute's only purpose and effect is to provide each State witha way to guarantee that its electors will not be subject to challengein Congress at the time the electors' votes are tabulated pursuantto the Twelfth Amendment.11 Indeed, supporters of the bill tookgreat care to address and refute without contradiction precisely theconstruction of Section 5 that petitioners now erroneously press110 years later. These supporters explained that the statute couldnot result in the invalidation of a State's votes but provided onlya safe harbor against a challenge in Congress to the State's slate ofelectors. E.g., 15 CONG. REC. 5547 (June 24, 1884) (statement ofRep. Herbert). And Representative Eden made virtually theidentical point: "The States are entirely free under theConstitution to adopt the mode of appointment of electors that thelegislatures thereof may prescribe. * * * The bill contemplates noexclusion of electoral votes from the count because of the failureof a State to settle disputes as to the lawful vote of the State." 18CONG. REC. 75 (Dec. 9, 1886) (emphasis added).

Petitioners cannot successfully convert their argument under3 U.S.C. § 5 into a claim under Article II of the Constitution bymaintaining that the Florida Supreme Court overrode the will ofthe Legislature by taking the state outside the safe harbor ofSection 5. The wish to avoid challenge to its electors representsan important indication of a State Legislature's intent, but thatwish is not the only one to be taken into account. There is noquestion, for example, that a state legislature can intend to take aState out of the safe harbor to achieve some other objective and astate court's overriding obligation remains to interpret the termsof the statute as the State Legislature enacted it. Under Section 5as enacted, "Congress does not command the states to provide fora determination of the controversies or contests that may ariseconcerning the appointment of the electors, does not even declareit to be the duty of the states to do so, but simply holds out aninducement for them so to act." John W. Burgess, The Law of theElectoral Count, 3 POL. SCI. Q. 633, 635 (1888) (emphasis added);see also Paul L. Haworth, THE HAYES-TILDEN DISPUTED

11 As detailed in respondent's opening brief in the Palm Beach Countycase, at 23 & n.14, Sections 5 and 15 were a direct reaction to the Hayes-Tilden matter.

PRESIDENTIALELECTION OF 1876, at 305-06 (1906) (law "providesthat a state may finally determine everycontest connected with thechoice of electors, but that such determination must be made inaccordance with a law passed before the electors are chosen andthat the decision must have been made at least six days before themeeting of the electors. Where such a determination has beenmade, it must be accepted * * * ."). The legislative historyspecifically reflects a recognition that a State was free not to takeadvantage of Section 5's safe harbor, with the only implicationbeing that the State's electors would be subject to challenge in theCongress. E.g., 18 CONG. REC. 30 (Dec. 7, 1886) (report by SelectCommittee on the Election of President and Vice President,accompanying Senate Bill 9).12

3. The Decision Below Does Not Change Florida Law AndTherefore Does Not Affect Florida's Entitlement To The SafeHarbor Of 3 U.S.C. § 5. Petitioners err in asserting that theFlorida Supreme Court's decision "makes new law" in numerousrespects.13 First and foremost, the decision below is in all respectsentirely with longstanding Florida election law. E.g., Beckstrom

12 If there remains any ambiguity about the appropriate reading of Section5, it should nonetheless be interpreted as only a safe-harbor provision in orderto avoid constitutional questions under Article II and settled principles offederalism. "Through the structure of its government, and the character ofthose who exercise government authority, a State defines itself as asovereign." Gregory v. Ashcroft, 501 U.S. 452 , 460 (19 91). A congressionalattempt to rearrange the constitutional structure of state government -- forexample, by purporting to preclu de judicial involvement in state electiondisputes that the state has so ught through its own constitution and laws toprovide -- is one of the few sorts of intrusion upon state sovereignty that mightwell be unconstitutional even after this Court's decision in Garcia v. SanAntonio Metropolitan Transit Au thority, 469 U.S. 528 (1985). See id. at 556(citing Coyle v. Oklahoma, 221 U.S. 559 (1911)) (invalidating acongressional attempt to relocate a state capital).

13 Given the nature of the briefing in this proceeding, in which respondentapparently will have no opportunity to address issues raised for the first t imein petitioners' brief, it is of course essential that petitioners' arguments onthe merits be constrained to those raised in their application for a stay.

v. Volusia Cty. Canvassing Board, 707 So. 2d 720 (Fla. 1998);Boardman v. Esteva, 323 So. 2d 259 (Fla. 1975); State ex rel.Peacock v. Latham, 170 So. 819 (1940), 170 So. 309 (1936), 170So. 472 (1936); State ex rel. Nuccio v. Williams, 97 Fla. 159, 120So. 310 (1929); Darby v. State, 73 Fla. 922, 75 So. 411 (1917)

Second, petitioners assert that the decision below conflictswith a 1992 Florida appellate decision describing the discretion ofa canvassing board to hold a manual recount in a protestproceeding. Stay App. at 30 (citing Broward County CanvassingBd. v. Hogan, 607 So. 2d 508, 510 (Fla. Dist. Ct. App. 1992)).The cited decision is inapposite. First, the case now before thisCourt involves a contest rather than a protest; the two electionschemes (Fla. Stats. §§ 102.166 &.102.168) are distinct. Second,in the present case Miami-Dade County made the decision tocommence a manual recount, and the same court that decidedHogan held that completing the recount was "mandatory." Evenif that single decision were in point, the decision of the FloridaSupreme Court -- a superior tribunal -- on an issue of statutoryinterpretation could hardly be deemed a sufficient change in thelaw that Congress would have intended the state's electors to losetheir presumed validity. Indeed, the contrary view would conflictwith settled principles of judicial hierarchy by binding the FloridaSupreme Court to follow the decisions of the inferior courts insuch matters.

Third, petitioners make the related argument that the FloridaSupreme Court's decision "effectivelyannounc[es] a new standardthat manual recounts are required in cases of claimed voter error."But petitioners do not even attempt to offer a page reference forthis gross misreading of the decision below, which carefullyexplains that the statute requires one contesting an election tomake a threshold showing that a sufficient number of legal voteshave been rejected to place in doubt the outcome of the election.Slip op. at 22-23. Indeed, under petitioners' theory of 3 U.S.C. §5, reversal of the Florida Supreme Court's judgment andreinstatement of the decision of the circuit court would depriveFlorida of the safe harbor. As six of the Florida Justices agreed,the circuit court failed to use the standards included in the statuteon Nov. 7, 2000. And petitioners' challenge to the FloridaSupreme Court's order directing manual recounts in each county-- without regard to the counties' discretion -- is entirelydisingenuous: it was petitioners who argued that a statewiderecount would be required in the event that respondents' contestof the 9000 uncounted Miami-Dade ballots was sustained. SeeAmended Brief of Appellees Bush and Cheney, in Gore v. Harris,Fla. S. Ct. No. SC00-2431, at 43 ("In a contest of a statewideelection, a statewide recount is required by the Equal ProtectionClause of the U.S. Constitution and Florida Statute Section102.168.").

Fourth, Petitioners allege that the Florida Supreme Courtchanged the law by adopting a statewide standard requiring that"dimpled" ballots be counted in recount proceedings. Stay 31. Of course, petitioners neglect to reconcile that contentionwith their due process and equal protection theories that thecourt's decision is unconstitutional because it supposedly fails toadopt standards for determining voter intent. We address thestandard set forth by the Legislature and applied by the courts inthis case infra, but it is enough to note here that petitioners do noteven claim that the Florida Supreme Court's decision conflictswith any prior court decision or, more to the point, with anylegislative enactment in this respect.

Petitioners' examples are most useful, we think, indemonstrating how their theory would require constant federaljudicial superintendence over state procedures and state courtrulings in Presidential elections. Federal judges would be calledon to examine supposed inconsistencies between different rulingsin a never-ending search for what law really is "new" and whatlaw is "old." Indeed, petitioners' argument that courts faced withan election controversy may not provide an "answer * * * createdafter Election Day," Stay App. at 32, would seriously distort thenormal application of state election laws, given the necessarilyretroactive nature of judicial decisionmaking. See Harper v.Virginia Dept. of Taxation, 504 U.S. 86 (1993). And federalcourts would apparently scour the text of state court decisions forclues that state judges had applied state election laws to newcircumstances -- which until this case had long been regarded as aprincipal responsibility and virtue of state judiciaries, not a federalconstitutional vice. Nor would the federal inquiry be limited to thestate courts, for petitioners maintain that the safe harbor of 3U.S.C. § 5 evaporates upon a mere change in ballot procedures bya single county canvassing board. See Stay App. at 32 (assertingviolation of Section 5 based on supposed change in Palm BeachCounty's treatment of "dimpled" ballots: "This change in policyby the organ of government granted the authority to conductmanual recounts fails to satisfy 3 U.S.C. § 5's express requirementthat controversies be resolved pursuant to law as it exists prior toelection day."). Yet some such adjustments must occur repeatedlyin every state in every election. It is simply not credible to suggestthat this everyday state of affairs regularly operates to eliminatethe protections of safe-harbor provisions.14

Petitioners' argument is thus inconsistent with thelongstanding practice of state courts, as well as attorneys general,to interpret and construe state election statutes as necessary toresolve post-election disputes.15 Florida courts have routinelyengaged in post-election statutory interpretation. See, e.g., Stateex rel. Peacock v. Latham, 170 So. 475, 478 (Fla. 1936); State ex

14 Indeed, every time a court interprets a state election statute for the firstt ime in the contex t of a Presidential election, it presumably makes "new"law in petitioners' v iew, there by stripping the state of the safe harborafforded by Section 5.

15 See, e.g., State ex rel. Stephens v. Marsh, 221 N.W. 708 (Neb. 1928);State ex rel. Dahlman v. Piper, 69 N.W. 378 (Neb. 18 96); Woods v. Sheldon,69 N.W. 602 (S.D . 1896); M iss. Op. Att'y Gen. No. 1999-0697, 1999 WL1333481 (Dec. 22, 1999); Tex. Op. Att'y Gen. No. JC-0293, 2000 WL1515422 (Oct. 11, 2 000); Ar k. Op. Att'y Gen. No. 94-366, 1994 WL 702001(Nov. 21, 1994).

rel. Knott v. Haskell, 72 So. 651 (Fla. 1916); State ex rel. Drew v.McLin, 16 Fla. 17 (1876). The range of settled practices thatwould be drawn into question by petitioners' argument, or thatwould draw the availability of the 3 U.S.C. § 5 in question, is littleshort of staggering.

III. The Fourteenth Amendment Affords No Basis for ThisCourt to Set Aside Florida's Established StatutoryProceedings for Determining the Proper Outcome ofthe Election.

A. There Is No Violation of the Equal Protection Clause.

Petitioners have pointed to two supposed equal protectionproblems arising from the remedy ordered by the Florida SupremeCourt. First, petitioners contend that the Florida Supreme Courterred by ordering a statewide manual count of undervotes, therebysupposedlydiscriminating against those whose votes were countedby automated means. Second, petitioners contend that theinclusion for a manual recount of approximately 9000 undervotesfrom Miami-Dade County caused some votes to be counted twiceand others to be counted using standards different from thoseapplied to other Miami-Dade County votes. Supp. Mem. at 2 n.1.Neither allegation has merit.

To begin with, neither of petitioners' claims was raisedproperly below. It is important to appreciate the narrowness of theFourteenth Amendment claim raised by petitioners before theFlorida Supreme Court: Petitioners argued (in only one throwawayline, no less) that "the application of counting standards indifferent counties as well as the occurrence of manual recounts inonly selected counties or selective portions of counties violates theequal protection and due process clauses of the U.S. Constitution."Amended Brief of Appellees George W. Bush and Dick Cheneyat 45 (Exh. H to Stay Application). No other FourteenthAmendment claim was framed.16

16 Petitioners' post-argument submission to the Florida Supreme Court,

Petitioners' Fourteenth Amendment arguments rest principallyon the assertion that, if the manual count proceeds, similar ballotswill be treated dissimilarly in different parts of the State. We notethat, insofar as this argument is directed at pre-contest tabulations,it is out of place here; petitioners should have raised such claimsin an election contest of their own. But more fundamentally,petitioners' contention simply finds no support in the law, and hassweeping implications for the conduct of elections. The courtbelow was quite insistent that the counting of ballots must begoverned by a single uniform standard: the intent of the votermust control. Of course, so long as the count is conducted byhumans, it undeniably will be possible to allege some degree ofinconsistency in the treatment of individual ballots -- as is the casewhenever the application of any legal standard (e.g., negligence,public forum) is at issue. That will be true in every one of themany jurisdictions that provide for manual recounts; it is truewhenever States provide for variation in the methods of votingfrom county to county (e.g., optical scanners as opposed to lessreliable punch card ballots), which is now the case in every State;and it was true everywhere prior to the introduction of mechanicalvoting machines, when all ballots were counted by hand.Petitioners' theory would mean that all of these practices violatethe Fourteenth Amendment. Moreover, if petitioners mean to saythat all votes must be tabulated under a fixed and mechanicalstandard (e.g., the "two-corner chad rule"), their approach wouldrender unconstitutional the laws of States that hinge the meaningof the ballot on the intent of the voter -- and also would mean thatthe Constitution requires the disenfranchisement of many voterswhose intent is clearly discernible. This argument, in our view, iswholly insubstantial. Similar arguments regarding the conduct ofelections uniformly have been rejected by the courts.

In any event, if the standard set out by the Florida Court is not

"Clarification of Argument for Appellees George W. Bush and DickCheney" (Exhibit M to Stay Application), was not accepted for filing.

applied consistently, applicants will have recourse to the LeonCounty Circuit Court and, on appeal, to the Florida SupremeCourt, either of which will be able to eliminate any inconsistencyby determining itself which ballots meet the statutory standard.17

1. The Florida Supreme Court's order to review the ballotsfrom Miami-Dade County is consistent with established statelaw.

The Florida Supreme Court's order to "remand this cause forthe circuit court to immediately tabulate by hand theapproximately 9,000 Miami-Dade ballots, which the countingmachine registered as non-votes, but which have never beenmanually reviewed," Slip op. 38, was consistent with establishedstate law for handling contest actions. As such, it raises nosubstantial federal questions.

This holding was a rather straightforward application of theLegislature's injunction, in Section 102.168(3), against theexclusion of "a number of legal votes sufficient to change or placein doubt the outcome of the election," coupled with its commandto the judiciary in the contest proceeding to "ensure that anyallegation in the complaint is investigated, examined to preventor correct any alleged wrong." Sec. 102.168(8). Moreover, theCourt's decision was premised on the trial court's finding of "lessthan total accuracy, in regard to punchcard voting devices utilizedin Miami-Dade" County, Gore v. Harris, No. 00-2808 (Fla. 2dJudicial Cir. Dec. 4, 2000), and a holding of an Florida appellatecourt that the Miami-Dade Canvassing Board's decision toabandon its count was an abdication of its "mandatory obligation"

17 And, indeed, Florida statutory law provides tha t opportunity w ithregard to any ballots th at a candidate believes should not have been countedduring a manual recount pursuant to Fla. Stat. 102.166, see App. 36(complaining about standards used during previous manual recounts). SeeFla. Stat. 102.1 68 (3)(c) (p ermitting a candidate to contest the inclusion of"illegal votes" in the certified election results).

under Florida law. Miami-Dade County Democratic Party v.Miami-Dade County Canvassing Board, 25 Fla. L. Weekly D2723(Fla. 3d DCA Nov. 22, 2000).This remedy is well establishedunder Florida law in election contest cases. See Broward Cty.Canvassing Bd. v. Hogan, 607 So.2d 508 (4th Dist. App. 1992);Morse v. Dade County Canvassing Bd., 456 So. 2d 1314 (3rdDist.App. 1984); McQuagge v. Conrad, 65 So.2d 1851 (Fla. 1953);State ex rel. Carpenter v. Barber, 198 So. 49 (1940); State ex rel.Peacock v. Latham, 170 So. 475 (1936); State ex rel. Titus v.Peacock, 170 So. 309 (1936); Ex parte Beattie, 245 So. 591(1936); Nuccio v. Williams, 120 So. 310 (1929); Ex parte Smith,118 So. 306 (1928); Florida v. Knott, 72 So. 651 (1916); State ex.rel. Law v. Saxon, 5 So. 801 (1889).

Fashioning such a remedy in no way violates the U.S.Constitution in general, or its Equal Protection Clause specifically.Targeting the vote count to those ballots that had not registered onmachines that were found not be accurate by the trial court was anarrowlytailored remedy authorized under state law,that certainlydoes not discriminate against any group of voters on its face.Indeed, it is the exclusion of these ballots, not their inclusion, thatwould raise questions of unequal treatment. The Florida SupremeCourt's order does nothing more than place the voters whose voteswere not tabulated by the machine on the same footing as thosewhose votes were so tabulated. In the end, all voters are treatedequally: ballots that reflect their intent are counted. It is of noconstitutional import whether that intent is captured by a machinetabulation or one performed by election officials.18

18 There has been some suggestion th at further m anual coun ting of ballotsmay produce a "degradation of the ballots," see Bush, supra, at 2 (Scalia,J., concurring). Yet this suggestion has scant support in the record, andthere is ample evidence to the contrary. See, e.g., Tr. 11-22-00, MorningSession, at 7, 13-14 ) (Remarks of Supervisor Leahy). More im portantly,clearly the question of to what extent recounts of the ballots increaseaccuracy is a question fo r the state cou rts and state election official understate law, not for this Court to resolve.

2. The Florida Supreme Court's order of a manual tabulationof ballots that were recorded as "no votes" is consistent withstate law.

The gravamen of petitioners' complaint concerning the manualrecount has been its selectivity. Yet, in this case, the FloridaSupreme Court ordered not a "selective" recount but a statewiderecount of undervotes in every Florida county that had not alreadycompleted a manual recount. Indeed, the Florida Supreme Courtexpressly granted petitioners the relief they sought with respect toa state-wide recount, "agree[ing] with the appellees" that Floridastatutes "require a counting of the legal votes contained within theundervotes in all counties where the undervote has not beensubjected to a manual tabulation." Slip op. at 2 (emphasis added).Petitioners cannot complain of a ruling in their favor.In any event, the availability of the manual recount as astandard post-election procedure is a long-standing feature ofFlorida law, and of the law of other States,19 and has beenrepeatedly used as part of Florida's system of electoral checks andbalances to ensure that all lawfully cast ballots are counted.20 As

19 At least 21 other states have enacted statutes allowing or even -- as inTexas -- encouraging the use of manual recounts to back up punch-cardtabulation systems. Cal. Elec. Code § 15627; Col. Rev. Stat. § 1-10.5-102(3); 10 Ill. Comp. Stat. § 5/24A-15.1; Ind. Code § 3-12-3- 13; IowaCode § 50.48(4); Kan. Stat. § 25-3107(b); Md. Code § 13-4; Mass. Gen.Laws ch. 54, § 135B; Minn. R. 8235.1000; Mont. Code § 13-16-414(3);Neb. Rev. Stat. § 32-1119(6); Nev. Rev. Sta t. § 293.404(3); N.J. Stat. §19:53A-14; 25 Pa. Code § 3031.18; S.D. Admin. R. 5:02:09:05(5); Tex.Elec. Code § 212.005(d); Vt. Stat. § 2601l; Va. Code § 24.2- 802( C); W.Va. Code § 3-4A-28(4); Wis. Stat. § 5.90.

20 The uncontradicted evidence by both respondents' and petitioners'witnesses at trial was that a manual count of punch card ballots wasnecessary in close elections. Petitioners' expert witness, John Ahmann,testified that a manual count was advisable "in very close elections" (12/3/00Tr. 442) and detailed ways in which machine deficiencies co uld result inintended votes not registering in a mach ine count (id. at 425, 430, 440-41,443-45). Respondents' expert witness also so testified. (12/2/00 Tr. 78-87;see also id. 51-54, 63.) Petitioners' w itness, Judge Burton, testified th at itwas possible to discern the clear intent of the voter in hundreds of ballots the

this Court has previously recognized, manual recount procedures,like those that are included in Florida law, are a completelyordinary mechanism for ensuring the accuracy of vote-counts inclose elections. See Roudebush v. Hartke, 405 U.S. 15, 25 (1972)("A recount is an integral part of the Indiana electoral process andis within the ambit of the broad powers delegated to the States byArt. I, §4."). Where some ballots apparently have not beencounted, and there is reason to believe that evidence of a voter'sintent may exist on the face of those ballots, it is an entirelyreasonable remedy to direct a manual examination of those ballotsto determine whether voter intent can be clearly ascertained. Inthat regard, the remedy of the Florida Supreme Court was to

machines did not register as a vote. (12/2/00 Tr. 278; see also id. 260-61,271.) The trial court expressly found that "voter error and/or less than totalaccuracy in regard to th e punchcard voting d evices utilize d in Dade and PalmBeach counties." (12/4/00 Tr. at 10.)

Many studies support the conclusion of the Florida Legislature, the trialcourt, and witnesses from all sides that machine counts produce inaccuracies.See, e.g., Roy G. Saltman, Accuracy, Integrity, and Security inComputerized Vote-Tallying, U.S. Dep't of Commerce, National Bureau ofStandards (1988); National Bureau of Standards Report, Effective Use ofComputing Technology in Vote-Tallying (1978); Ford Fessenden, Countingthe Vote, N. Y. TIMES, Nov. 17, 2000, at A1 (citing many voting machinemanufacturers who say that machine inaccuracy ranged wildly in Florida onNovember 7, and quoting industry officials who state "the most precise wayto count ballots is by hand"); David Beiler, A Short in the Electronic BallotBox, Campaigns & Elections, July/Aug. 1989, at 39; Tony Winton, Experts:Machine Counts Inaccurate, AP ONLINE, Nov. 11, 2000 (noting that"officials in England and Germany consider manual counts to be moreaccurate than automated ones" and quoting computer scientists for theproposition that "problems with automated vote-counting equipment,especially the computer card punch type used in south Florida, have beenwell documented" and that error rates of two percent to five percent areroutine); Marlon Manuel, Recounts: Democratic Official Defends MethodThat Bush Opposes, ATLANTA J. & CONST., Nov. 17, 2000, at A11 (quotingpresident of company that "sells ballot software to 12 Florida counties,including . . . Palm Beach, Miami-Dade and Broward" for the propositionthat "[i]f they're trying to determine a voter's intent, they're not going to getit off our machine or any machine").

adhere strictly to the directive of the Florida Legislature that "[n]ovote shall be declared invalid or void if there is a clear indicationof the intent of the voter as determined by the canvassing board."Fla. Stat. § 101.5614(5).

It is important to note that petitioners do not claim that theFlorida Supreme Court's order is discriminatory in any invidiousmanner; they do not claim that any citizens of Florida wereimproperly denied their right to vote; and there is no claim of anyfraudulent interference with the right of anyone to vote.Petitioners make none of these claims, which in certaincircumstances have provided the basis for federal intervention instate election procedures and/or findings of invalidity of suchprocedures. Instead, petitioners' contention here seems to be thatthere is some constitutional defect in a state procedure that permitsmanual recounts to occur for some votes which may have beenmissed (undervotes), but not all votes (i.e., votes that wereeffectivelycounted by automated processes). The Florida process,however, provides citizens of each county, and candidates foroffice within each county, with equal rights: No votes can be"diluted" in the constitutional sense by a process that seeks simplyto count the legally cast votes of citizens participating in anelection whose votes may not have been recognized by an initialmachine count.21 All undervotes are treated the same way underthe Florida Supreme Court's order. The Equal Protection Clausedoes not require that the Florida Supreme Court ignore the most

21 The "dilution" cases petitioners cite, e.g., Reynolds v. Sims, 377 U.S.533 (1964), and Roman v. Sincock, 377 U.S. 695 (1964), involve the one-person, one-vote principle under which voters from different districts cannotbe given votes of unequal weight. That issue is not even presented where,although the election is conducted by individual counties, the winner isdetermined based on his statewide popular vote. Petitioners' heavy relianceon O'Brien v. Skinner, 414 U.S. 524 (1974), is equally misplaced. O'Brienstands only for the unremarkable proposition that voters cannot be denied theright to vote solely because of their county of residence. The FloridaSupreme Court's order does not work any such irrational discrimination.Rather, the remedy fashioned is applied generally and equally to allundervotes in the state.

accurately counted vote totals while seeking to ensure that allvotes are counted.22

The use of different vote tabulating systems undoubtedly willgenerate tabulation differences from county to county.23 But thiswill be true "[u]nless and until each electoral county in the UnitedStates uses the exact same automatic tabulation (and even thenthere may be system malfunctions * * * . )." Siegel v. LePore,2000 WL 1687185, at *7 (S.D. Fla. Nov. 13, 2000). As ChiefJudge Anderson noted in the Siegel appeal: "No court has heldthat the mere use of different methods of counting ballots

22 Many states expressly allow for county-by-county or precinct-by-precinctrecounts. See, e.g., Cal. Elec. Code § 15621 (voter may request recount andspecify counties in which recount is sought and order of precincts to becounted; voter must fund recount); Ind. Code § 13-12-11-1 (candidate entitledto recount, which may be conducted in one or more precincts); Iowa Code §50.48(4) (any statewide candidate, upon posting bond, is entitled to a recountin "one or more specified election precincts" within counties) ; Kan. Stat. §25-3107(b) (candidate (or voter) may request a recount of "the ballots cast inall or in only specified voting areas for the office for which such person is acandidate ," with the recount method being at the discretion of requestingparty; bond must be posted); Mont. Code §§ 13-16-211, 13-16-305 (anyunsuccessful candidate can petition for a recount in specified counties uponposting bond; candidates can also petition a state court for a recount in one ormore counties and in one or more precincts within each county, and court"shall order a recount in only the counties or precincts for which sufficientgrounds are stated and shown."); N.J. Stat. § 19:28-1 (any candidate (or groupof 10 voters) who believes that an error may have occurred can apply to statecourt for a recount of votes cast in any district or districts."); Tex. Elec. Code§ 212.001(5) (campaigns or voters may request a recount, specifying theelection precincts, grouped by county or otherwise, for which the recount isdesired); Wis. Stat. § 9.01 (any candidate or voter may request a recount onground of mistake or fraud; requesting party must post bond and identifyspecific locations where recounts are desired).

23 Florida's 67 counties use four different voting systems: one countycounts all votes by hand; one uses mechanical lever voting machines (votesrecorded on counter wheel when voters pull lever); 24 use punch card votingsystems; and 41 use marksense voting systems (optical scanners detectmarks made on ballot). See Pet. App., Exh. A, submitted with petition inTouchston v. McDermott (Dec. 8, 2000); Touchston v. McDermott, No. 00-15985, 2000 WL 1781942, at n.16 (CA 11 Dec. 6, 2000).

constitutes an equal protection violation." Siegel v. LePore, 2000WL 1781946, at *14 (CA11 Dec. 6, 2000) (concurring opinion).Indeed, the fact that counties have different ballot marking andcounting systems demonstrates the value in having statutorychecks and balances such as a manual recount process.24 County-to- county variations of this nature do not violate the constitution.See, e.g., Wyche v. Madison Parish Police Jury, 635 F.2d 1151,1158 (CA5 1981) (legislative deviation from equality ispermissible for purposes of administrative convenience, adherenceto historical or geographic boundaries and recognition of separatepolitical units).25

3. The "voter intent" standard set by Florida law does notviolate the Equal Protection Clause.

The Florida statutory standard used in conducting manual

24 For example, most counties in Florida utilize an optical scanning votecount system. That system performed with great accuracy during thepresidential race, resulting in only a 0.3% undervote rate (4 in 1000 ballots).In contrast, punch card systems such as those used in Palm Beach, Browardand Miami-Dade Counties experienced a 1.5% undervote rate (15 in 1000ballots) in the presidential race. The manual recount process can amelioratesome of the disparity created by the use of different marking and countingequipment. Such a system not only does not violate the Equal ProtectionClause; it also enhances the equality of the voting process.

25 Many legal standards require a finder of fact to examine evidence andmake a judgment regarding intent. Morissette v. United States, 342 U.S.246, 274 (1952) (intent is a question of fact for a jury). Will contests seekthe intent of the decedent. Reliance on finders of fact to apply broadstandards is ubiquitous. Russell v. Gill, 715 So. 2 d 1114 (Fla. Dist. C t.App. 1998) (where the terms of a contract are ambiguous, intention of theparties may be ascertained from all of the pertinent facts and circumstances);Holland v. United States, 348 U.S. 121 (1954) (evidence must be sufficientto convince criminal jury of the guilt of the accused beyond a reasonabledoubt). Indeed, the law is full of standards that require judgment toascertain intent. Federal juries in criminal fraud ca ses are instru cted toconsider the facts in evidence and that "[t]o act with inte nt to defraud meansto act knowingly and with the intention or the purpose to deceive or cheat."O'Mally et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS § 16.07 (5thed.).

recounts -- ascertainment of the voter's intent, see Fla. Stat. §102.166(7) -- does not violate equal protection requirements. It isincorrect to assert, as petitioners do, that the standard fordetermining whether a ballot should be counted varies from countyto county. The "voter intent" standard is the same throughoutFlorida, and the circuit court issued detailed guidelines to ensurethat the manual counts proceeded in a uniform fashion. Eachballot must be reviewed ballot-by-ballot to determine the voter'sintent in the context of the entire ballot. Arbitrary exclusionswould violate the Florida statutory scheme. The Florida SupremeCourt's instructions in Harris were given to prevent this result.

In its decision, the Florida Supreme Court reaffirmed thegoverning standard by which the recounts were to proceed -- onethat has been in place in Florida and countless other states foryears: "the standard to be employed is that established by theLegislature in our Election Code which is that the vote shall becounted as a 'legal' vote if there is 'clear indication of the intentof the voter.'" Slip op. at 40 (citing Fla. Stat. § 101.5614(5)). Thestate circuit court issued detailed guidance based on this standardimmediately after the Florida Supreme Court's decision. TheFlorida canvassing boards and courts have long implemented thatstandard, and vote totals certified in this and many previouselections reflect countless ballots manually recounted under thissame standard. See, e.g., Darby v. State, 75 So. 411, 413 (Fla.1917). Indeed, the Secretary of State's November 14 certificationincluded numerous manually counted votes for petitioners,including vote totals from heavily Republican counties.

Hence, the contention that the "intent of the voter" standardviolates equal protection (or due process) is nothing more than anargument that the contest and recount procedures of Florida'selection code, which mirror those that have long existed in oneform or another in numerous States, are on their faceunconstitutional. Manual counting and recounting of ballots underthe intent of the voter standard has been the rule, not theexception, in this country for generations -- indeed, for most of theperiod since its founding. See Bush v. Gore, No. 00-949(00A504) (U.S. Dec. 9, 2000) (Stevens, J., joined by Souter,Ginsburg, and Breyer, JJ., dissenting) ("intent of the voter"standard followed by Florida Supreme Court is "consistent withthe prevailing view in other States"); see also Delahunt v.Johnston, 671 N.E.2d 1241 (Mass. 1996); Pullen v. Mulligan, 561N.E.2d 585, 611 (Ill. 1990); Stapleton v. Board of Elections, 821F.2d 191 (CA3 1987); Hickel v. Thomas, 588 P.2d 273, 274(Alaska 1978); Wright v. Gettinger, 428 N.E.2d 1212, 1225 (Ind.1981); Democratic Party of the Virgin Islands v. Board ofElections, 649 F. Supp. 1549, 1552 (D.V.I. 1986) ("There can beno question then, that the intention of the elector must beparamount. Neither a regulation of the Board of Elections, nor adecision of the supervisor of elections, can supercede therequirement that where the elector's intent can be divined, itshould be given effect.") (citation omitted)); cf. NLRB v.Americold Logistics, Inc., 214 F.3d 935, 939 (CA7 2000) ("TheBoard's policy -- and the rule in this circuit -- is to count ballotswhen the voters' intent is clear, despite irregularities in the mannerin which the ballots have been marked") (citations omitted); TCIWest, Inc. v. NLRB, 145 F.3d 1113, 1115 (CA9 1998) ("Thegeneral rule in this Circuit and most other circuits, as well as thepolicy admitted by the Board is that a ballot should be countedwhere a voter's intent is clear, despite irregularities in the voter'smark.") (citations omitted); NLRB v. Duriron Co., 978 F.2d 254,257 (CA6 1992) ("A ballot should normally be counted if there isa clear expression of preference regardless of an irregularity in thevoter's mark."); Stapleton v. Board of Elections, 821 F.2d 191(CA3 1987); NLRB v. Connecticut Foundry Co., 688 F.2d 871,875 (CA2 1982) ("The general rule is that a ballot should becounted if there is a clear expression of preference, regardless ofthe irregularity of the mark on the ballot.") (internal quotationsomitted); Wackenhut Corp. v. NLRB, 666 F.2d 464, 467 (CA111982) ("We seek to determine whether the Board's action here isconsistent with the admitted Board policy of attempting to giveeffect to the voters' intent whenever possible") (internal quotationsomitted) (citing NLRB v. Manhattan Corp., 620 F.2d 53 (CA51980); NLRB v. Tiche-Goettinger Co., 433 F.2d 1045 (CA5 1970).

Moreover, with respect to the counting of punch card ballots,most States do not attempt specifically to define what particularappearance of the ballot is required before a vote is to be counted.Even those States that do have such standards usually have a"catch-all" provision permitting the counting of any ballot that"otherwise reflects the intent of the voter." E.g., Tex. ElectionCode Ann. § 127.130(d)(4), (e) (2000) (vote to be counted if"indentation" on chad or other mark indicates clearly ascertainableintent of voter); Ind. Code Ann. § 3-12-1-1. At least 22 stateshave enacted statutes allowing -- or even as in Texas encouraging-- the use of manual recounts to back up punch-card tabulationsystems. See supra.

Even in states that have adopted statutory guidelines to assistin ascertaining voter intent, the ultimate goal is to determine howa voter intended to vote. For example, the election code of Texasprovides as follows:

(d) Subject to Subsection (e), in any manual count conductedunder this code, a vote on a ballot on which a voter indicatesa vote by punching a hole in the ballot may not be countedunless:

(1) at least two corners of the chad are detached:

(2) light is visible through the hole;

(3) an indentation on the chad from the stylus or otherobject is present and indicates a clearly ascertainableintent of the voter to vote; or

(4) the chad reflects by other means a clearly ascertainableintent of the voter to vote.

(e) Subsection (d) does not supersede any clearly ascertainableintent of the voter.

Tex. Elec. Code § 127.130 (emphasis added). The Texas statute,while providing guidelines for manually counting punch cardballots, thus establishes the intent of the voter as the paramountand overriding standard. Indeed, the guidelines set forth insubsection (d) are made expressly subject to this overarchingstandard. If the Florida standard is struck as unconstitutional, it isdifficult to see how statutes such as the Texas election code couldsurvive.

If petitioners have complaints about the treatment of particularballots, or the treatment of ballots in particular locations, theFlorida procedure now in place provides a perfectly suitablemechanism for addressing them: such complaints may bepresented to the circuit court and tested on appeal. But rather thaninvoke that traditional remedy, petitioners would have the Courtabruptly end the counting altogether and toss out lawfully castballots that have been, and are now being, counted. That is anabsurd and unprecedented response to an asserted flaw in theprocess for tabulating votes, and one that surely is not required bythe U.S. Constitution. In fact, if there is anything to petitioners'equal protection claim, the remedy is not to end the counting ofvotes; it is, instead, to articulate the proper standard and -- asrequired by state law -- to have the counting go forward under thatstandard.

B. There Is No Violation of the Due Process Clause.

Petitioners' claim under the Due Process Clause has no merit.First, any suggestion that the application of different countingstandards by different counties raise due process concerns here isfatally flawed because petitioners have utterly failed to developany record evidence to support their accusations in this regard andcan offer only unconfirmed rumors and untested accusations. Asdescribed supra, recounts have in fact proceeded in an orderly anduniform fashion. Florida's manual recount system acts as animportant check on the ballot counting process that promotes, noterodes, public trust in the electoral system. The manual recountshere, for example, were conducted in full public view by countingteams made up of representatives from different political parties,with the supervision of a three-member canvassing board thatincludes a sitting countyjudge and review by the Florida judiciary.And the circuit court developed lengthy and detailed guidelines toensure uniformity and accuracy.

Petitioners' allegations about the recount process are thuswithout any factual basis. Moreover, they are not even legallycognizable. Petitioners have failed to adduce proper evidence tosupport their claim. In any event, if there are isolated mistakes orinaccuracies during recounts, petitioners have ample remediesavailable to them under Florida law and Florida procedure tosecure full redress. There is no warrant for holding the entirerecount procedure unconstitutional on its face.

Petitioners' argument would have the unthinkableconsequences of (i) overturning the settled "intent of the voter"standard; (ii) invalidating the entire election in Florida, in whichmany ballots already have been included in the certified totals asa result of manual counting, and (iii) calling into questionnumerous other results nationwide in a host of local, state, andnational elections. Not surprisingly, petitioners' argument alsoflatly contradicts their representation of counsel before the Floridacourts in the Bush v. Palm Beach County Canvassing Boardlitigation (quoted above), in which they urged that manualrecounts should be conducted pursuant to a contest in order tominimize concerns regarding the standards for counting.

To the extent that petitioners' due process argument rests onthe claim that the Florida Supreme Court imposed standards forcounting the votes that were not in place when the votes were cast,that argument must fail for reasons already discussed above: thelaw enunciated in the Florida Supreme Court's opinion is the lawas it existed on election day and long before it. In fact, thisargument is particularly flawed in the due process context. Toestablish the charge of a constitutionally impermissible retroactivechange in the law, petitioners would have to demonstrate notsimply that the Florida Supreme Court's decision constituted a ----------------------------------------------------------------------------------------------------------------49retrospective change and that the change deprived them of acognizable liberty or property interest, but also that the change was"arbitrary and irrational." Eastern Enters. v. Apfel, 524 U.S. 498,548 (1998) (Kennedy, J., concurring in the judgment anddissenting in part); see also id. at 537 (plurality opinion ofO'Connor, J.) (same); id. at 556 (Breyer, J., dissenting) (same).Petitioners cannot possiblymeet this standard,26 and the authoritieson which they rely are wholly inapposite.27

The only due process right even arguably implicated by thiscase is the right of voters to have their ballots counted, a

26 This Court's decisions reflect the strong presumption, consistent withthis Court's understanding of the nature of the judicial act, that judicialrulings must be retrospectively applied to the parties themselves. See, e.g.,Harper v. Virginia Dept. of Taxation, 509 U.S. 86, 97 (1993); see id. at107-08 (Scalia, J., concurring).

27 Roe v. Alabama, 43 F.3d 574 (per curiam), and 68 F.3d 404 (CA111995) (per curiam), involved the claim of Alabama voters that theeffectiveness of their votes would be diluted by the retroactive abrogation ofa uniform, long-standing prohibition on accepting certain write-in ballots.Not only do petitioners lack standing to raise such a claim , but the EleventhCircuit's holding rested on the fact that the change in Alabama law resultedin the counting of selected ballots that previously had been regarded asillegal in circumstances where voters who were not given the benefit of thenew rule of eligibility could plausibly allege that they would have decided tovote had the onerous requirements lifted for others been lifted for them aswell. Petitioners assert here the very different interest in precluding thecounting of entirely lawful ballots, an interest that cannot possibly haveconstitutional footing.

Any reliance on United States v. Mosley, 238 U.S. 383 (1915),United States v. Classic, 313 U.S. 299 (1941), and Lane v. Wilson, 307U.S. 268 (1939), would also be misplaced. All three decisions involve casesin which voters were deliberately and insidiously disenfranchised. Mosleyand Classic were criminal cases that involved conspiracies to preclude votesin certain precincts from being counted and to count votes for a candidate asvotes for his opponent. Lane was a challenge to a state statutory scheme thatpermanently disenfranchised a class of voters who failed to register to voteduring a certain ten-day period. Unlike the cases cited by petitioners, theFlorida statutory process seeks to enfranchise voters where machine markingand recording equipment may have worked a disenfranchisement of voterswho cast legal ballots.

consideration that strongly supports the state supreme court'sdecision. It is worth noting in this respect that petitionersthemselves have taken the view that military absentee votes shouldbe counted even if the ballots in question did not comply withvarious clear requirements of Florida statutory law. We agree thatvoters have important rights to have their ballots counted, and themagnitude of those rights dwarfs any due process claim petitionersassert here.28

At bottom, all petitioners can really claim is that, in their view,the Florida Supreme Court got Florida law wrong. But a "'mereerror of state law' is not a denial of due process." Engle v. Isaac,456 U.S. 107, 121 n.21 (1982); Gryger v. Burke, 334 U.S. 728,731 (1948) ("otherwise, every erroneous decision by a state courton state law would come here as a federal constitutionalquestion"); Brinkerhoff-Faris Co. v. Hill, 281 U.S. 673, 680(1930) (Brandeis, J.) ("[T]he mere fact that a state court hasrendered an erroneous decision on a question of state law, or hasoverruled principles or doctrines established by previous decisionson which a party relied, does not give rise to a claim under theFourteenth Amendment or otherwise confer appellate jurisdictionon this Court"). To hold that the decision below violates dueprocess would do violence both to principles of federalism and tothe independence of the judiciary throughout the United States. Itwould invite an onslaught of such claims by the losing parties instate courts alleging that the decisions in their cases constituted anunconstitutional departure from "preexisting law." And it wouldundermine the authority of the judiciary to decide the meaning oflaw, by holding that apparently routine judicial acts of statutoryconstruction long thought to involve only questions of state law infact amount to illegitimate and unconstitutional usurpations of thelegislative role.

28 Even if this Court disagreed, the appropriate remedy for either an EqualProtection Clause or Due Process Clause viola tion would n ot be to can cel allrecounts, but rather to order that the recounts be undertaken under a uniformstandard. Counting none of the votes would be vote dilution with avengeance.


The stay granted by this Court should be immediatelydissolved, and the judgment of the Florida Supreme Court shouldbe affirmed.

Respectfully submitted.

David Boies                   Laurence H. TribeRobert Silver                 (Counsel of Record)Boies, Schiller & Flexner     Hauser Hall 42080 Business Park Dr.          1575 Massachusetts Ave.Suite 110                     Cambridge, MA 02138Armonk, NY 10504Thomas C. Goldstein           Ronald A. KlainAmy Howe                      Andrew J. Pincus4607 Asbury Pl. NW            Gore-Lieberman Recount Cmt.Washington, DC 20016          430 S. Capitol St.                              Washington, DC 20003Jonathan S. Massey            Peter J. Rubin3920 Northampton St. NW       Georgetown Univ. Law Ctr.Washington, DC 20015          600 New Jersey Ave. NW                              Washington, DC 20001Kendall CoffeyCoffey Diaz & O'Naghten2665 South Bayshore Dr.Miami, FL 33133
December 10, 2000