No. 00-837 IN THE Supreme Court of the United States NED L. SIEGEL, ET AL., Petitioners, v. THERESA LEPORE, ET AL., Respondents. On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit REPLY BRIEF FOR PETITIONERS BENJAMIN L. GINSBERG THEODORE B. OLSON PATTON BOGGS LLP Counsel of Record 2550 M Street, N.W. DOUGLAS R. COX Washington, D.C. 20037 THOMAS G. HUNGAR (202) 457-6000 MARK A. PERRY GIBSON, DUNN & CRUTCHER LLP GEORGE J. TERWILLIGER III 1050 Connecticut Avenue, N.W. TIMOTHY E. FLANIGAN Washington, D.C. 20036 MARCOS D. JIMÉNEZ (202) 955-8500 WHITE & CASE LLP 200 South Biscayne Blvd. BARRY RICHARD Suite 4900 GREENBERG TRAURIG, P.A. Miami, Florida 33131 101 East College Avenue (305) 371-2700 Post Office Drawer 1838 Tallahassee, FL 32302 (850) 222-6891 Counsel for Petitioners i TABLE OF CONTENTS Page TABLE OF AUTHORITIES..............................................ii I. This Case Plainly Presents Questions Of Imperative Public Importance, Warrant- ing This Court's Immediate Review...................1 II. Petitioners' Constitutional Claims Are Serious And Substantial And Require This Court's Immediate Review..........................4 A. Manual Recounts Are Not Immune From Constitutional Scrutiny........................4 B. The Manual Recount Violates the Equal Protection Clause ................................6 C. The Manual Recount Violates Due Process.............................................................8 D. The Manual Recount Violates The First Amendment ............................................9 CONCLUSION..................................................................10 ii TABLE OF AUTHORITIES Page(s) CASES Anderson v. Celebrezze, 460 U.S. 780 (1983) .................6 Duncan v. Poythress, 657 F.2d 691 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012 (1982) ..............................................................................8 First Alabama Bank v. Parsons Steel, Inc., 825 F.2d 1475 (11th Cir. 1987)...........................................3 Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992)..............................................................9 Griffin v. Burns, 570 F.2d 1065 (1st Cir. 1978)...........8, 9 Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982)...................................................................8, 9 Papachristou v. City of Jacksonville, 405 U.S. 156 (1972).......................................................................5 Reynolds v. Sims, 377 U.S. 533 (1964).................... 3, 5, 6 Roe v. Alabama, 43 F.3d 574 (11th Cir. 1995) ....... 7, 8, 9 Tashjian v. Republican Party, 479 U.S. 208 (1986) ............................................................................10 Williams v. Rhodes, 393 U.S. 23 (1968)...........................9 WMCA, Inc. v. Lomenzo, 377 U.S. 633 (1964) ..............................................................................6 CONSTITUTION AND STATUTES U.S. CONST. art. II, § 1........................................................1 ALASKA STAT. § 15.20.480................................................4 iii TABLE OF AUTHORITIES-Continued Page(s) ALASKA STAT. § 15.20.730................................................4 ALASKA STAT. § 1.15.360 ..................................................5 COLO. REV. STAT. T1 Elections § 1-7-309 ......................5 IDAHO CODE § 34-2305.......................................................4 IOWA CODE § 50.48.............................................................4 N.M. STAT. ANN. § 1-14-14...............................................4 OKLA. STAT. Title 26 § 7-134.1.........................................4 OR. REV. STAT. Title 23 § 258.171 (1).............................4 TEX. ELEC. CODE § 214.042(b) .........................................5 WYO. STAT. Title 22 § 22-16-109(b),(c)..........................4 OTHER AUTHORITIES SUP. CT. R. 11 ......................................................................3 REPLY BRIEF FOR PETITIONERS Petitioners seek to preserve the right to vote for President of the United States against unconstitutional actions by election officials. This Court's immediate re- view is necessary in order to protect petitioners' consti- tutional rights in this case of imperative public impor- tance. Respondent Florida Democratic Party ("FDP") belittles the clear federal interest in protecting the right to vote by arguing that all of petitioners' federal claims are "insubstantial." E.g., Opp. 2, 4, 18. The FDP is mistaken: Petitioners present important, substantive claims that are governed by the Constitution and that federal courts historically have addressed. The FDP also claims that the petition involves "only questions of Florida state law" and that the petition is merely "a bald attempt to federalize a state law dispute" over manual recounts. Opp. 3, 29. But state election of- ficials remain subject to federal Constitutional guaran- tees, and it is precisely those guarantees that are being fatally undermined by the Florida recounts. I. This Case Plainly Presents Questions Of Im- perative Public Importance, Warranting This Court's Immediate Review Notably, the FDP does not dispute that the questions presented by this case are of imperative public impor- tance-nor could it plausibly do so, given the signifi- cance of the right to vote and the unique role assigned to the President under the Constitution. U.S. CONST., Art. II, § 1. Indeed, the district court itself acknowledged the "serious" nature of petitioners' claims, and the Florida Supreme Court, in its ruling in a closely related case, emphasized the "extraordinary importance" of the litiga- tion. Pet. App. 3a; 00-836 Pet. App. 37a. 2 In an effort to minimize the obvious importance of this case, the FDP argues that the record is too "unde- veloped" for this Court's review to be appropriate. E.g., Opp. 1, 2, 27. As set forth in the petition, however, and unrebutted by the FDP, the key facts supporting peti- tioners' case-far from being "undeveloped"-are un- disputed. These undisputed facts include: (1) manual recounts are proceeding only in selected Florida coun- ties; (2) the recounts are being conducted under Florida statutes that do not provide uniform standards for the re- counts; (3) canvassing boards have changed standards within counties during the course of the recounts, and the counties have been involved in post-election litiga- tion to set standards or to change standards; (4) the se- lective recounts inevitably count purported "votes" in some counties that would not be counted in others; (5) ballots are subject to physical degradation through re- peated handling; and (6) local officials are acting under intense political pressure and with knowledge of the po- tential impact of their decisions on the national election. See Pet. 5-14. The Court is fully cognizant of these facts, and they amply support petitioners' constitutional claims. To be sure, given the rapid development of this case and the very short time limitations imposed by the Con- stitution and statutes, petitioners and the FDP have both sought to supplement the factual record in the lower courts. See FDP Motion For Leave To File Appendix, No. 00-15981 (Nov. 16, 2000); Attachments To FDP Brief, No. 00-15981 (Nov. 17, 2000). Indeed, the Elev- enth Circuit has twice instructed the parties to provide factual updates. Order, No. 00-15981 (Nov. 16, 2000); Order No. 00-15981 (Nov. 22, 2000). And even before this Court, the FDP seeks to rely on press reports and other assertions that "have not been tested in court through cross-examination, verification, or judicial fact finding." Compare Opp. 1 with id. 6-7 n.2. These sup- plemental efforts, however, are in no way inconsistent 3 with the self-evident truth that the key facts are already before the Court.1 The FDP also suggests that this case lacks public importance, by arguing that the petition is addressed only to a "preliminary motion to restrain the recounts" and thus presents "an extremely narrow question for the Court's consideration." Opp. 1. That argument is mis- taken. Petitioners seek injunctive relief not only to halt the selective and standardless recounts, but also to pro- hibit certification of returns that include the results pro- cured through the flawed recounts. If the Court grants the petition, the Court will be able to address fully peti- tioners' constitutional claims. Under these unique and compelling circumstances, the petition satisfies the requirements of this Court's Rule 11, and certiorari review before judgment is war- ranted. Pet. 15-16. 1 The FDP's attack (Opp. 27-28 n.12) on petitioners for at- tempting to supplement the record before the court of appeals is unjustified. As noted, both the FDP and petitioners have sought to supplement the record to reflect recent develop- ments before the court of appeals. It is, of course, well within the court of appeals' discretion to accept such sup- plemental material. First Alabama Bank v. Parsons Steel, Inc., 825 F.2d 1475, 1487 (11th Cir. 1987) ("This Court has the discretionary power to supplement the record on appeal, even to include evidence not reviewed by the court below"). 4 II. Petitioners' Constitutional Claims Are Serious And Substantial And Require This Court's Immediate Review A. Manual Recounts Are Not Immune From Constitutional Scrutiny The FDP fails to rebut petitioners' showing that Florida's arbitrary, standardless, and selective manual recounts violate the Equal Protection Clause, the Due Process Clause and the First Amendment. Rather, the FDP attempts to shield Florida's recounts from constitu- tional scrutiny by alleging the use of analogous proce- dures in other States, and by appealing to the "long and uninterrupted history in this Nation" of manual recount- ing. Opp. 19 & n.6. Neither argument, however, has merit here. First, the petition does not challenge the constitu- tionality of manual recounts generally, but only of Flor- ida's standardless, arbitrary and selective manual re- counts. Second, the FDP is simply incorrect to assert that many States conduct manual recounts in the arbi- trary and subjective manner that characterizes Florida's ongoing manual recount.2 Third, even if Florida could 2 To the contrary, some of the States cited by the FDP do not allow for a manual recount where the original count, as here, was conducted by some type of electronic or electrome- chanical device. See, e.g., IOWA CODE § 50.48; see also IDAHO CODE § 34-2305; N.M. STAT. ANN. § 1-14-14; OKLA. STAT. Title 26 § 7-134.1. Of the state codes that permit manual recounts, many contain provisions mandating that if a manual recount is conducted it must be conducted throughout the entire state. See, e.g., OR. REV. STAT. Title 23 § 258.171 (1); WYO. STAT. Title 22 § 22-16-109(b),(c). Many states also provide reasonable and uniform standards for conduct- ing the recount and for determining what constitutes a "valid" vote. See, e.g., ALASKA STAT. §§ 15.20.480, [Footnote continued on next page] 5 establish some historical pedigree for its discriminatory manual recounts, this Court has never held that repeated constitutional violations effect, over time, an immunity protecting such conduct from subsequent judicial re- view. See, e.g., Papachristou v. City of Jacksonville, 405 U.S. 156, 161, 168 (1972) (Jacksonville ordinance and Florida statute, "derived from early English law," unconstitutionally vested "unfettered discretion" in gov- ernment officials). The FDP argues that none of the petitioners has been denied "the right to vote." Opp. 21. If the FDP means that no one turned petitioners away at the polls, that is true but irrelevant; indeed, the same was true of the voters in Reynolds v. Sims, 377 U.S. 533 (1964). The voter petitioners in this case were and are suffering an impermissible infringement of "their right to vote," in the constitutionally crucial sense that some Florida counties are proceeding with an ad hoc process that di- lutes and devalues their votes. "[T]he right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly pro- hibiting the free exercise of the franchise." Id. at 555. It is unconstitutional for Florida to discriminate against voters based upon their political group or their particular viewpoint. Moreover, the FDP cannot dispute the uniquely fed- eral interest in election laws affecting the President of [Footnote continued from previous page] 15.20.730, 1.15.360; COLO. REV. STAT. T1 Elections § 1-7- 309. The FDP's politically-driven invocation of Texas's election laws is also factually misplaced. For example, unlike Florida, Texas law requires that the same recount method be used consistently across all the recounted jurisdic- tions. See TEX. ELEC. CODE § 214.042(b). 6 the United States. As this Court stated in Anderson v. Celebrezze: [I]n the context of a Presidential election, state- imposed restrictions implicate a uniquely impor- tant national interest. For the President and the Vice President of the United States are the only elected officials who represent all the voters in the Nation. Moreover, the impact of the votes cast in each State is affected by the votes cast for the various candidates in other States. Thus in a Presidential election a State's enforcement of more stringent ballot access requirements, in- cluding filing deadlines, has an impact beyond its own borders. Similarly, the State has a less important interest in regulating Presidential elections than statewide or local elections, be- cause the outcome of the former will be largely determined by voters beyond the State's boundaries. 460 U.S. 780, 794-95 (1983) (citations omitted). Florida's arbitrary and standardless manual recount violates the Constitution just as plainly as did the state laws at issue in Anderson and Reynolds. B. The Manual Recount Violates the Equal Protection Clause Florida's recount scheme, as applied in this case, violates the Equal Protection Clause because it subjects citizens to fundamentally unfair and discriminatory treatment based upon place of residence, and conse- quently gives votes in the selected counties greater weight than votes cast by identically situated voters in other Florida counties. See, e.g., Reynolds, 377 U.S. at 567 ("[T]he weight of a citizen's vote cannot be made to depend on where he lives."); WMCA, Inc. v. Lomenzo, 377 U.S. 633, 653-54 (1964). 7 Implicitly conceding the force of this analysis, the FDP asserts that because "a candidate" can request a manual recount in any county, no Equal Protection vio- lation occurs when recounts proceed in only some coun- ties but not others. Opp. 21. But most of the petitioners are voters¸ who had no right under Florida law to re- quest a recount, and the FDP does not argue otherwise. The FDP claims that conducting a manual recount in four selected, predominantly Democratic, counties will increase the number of votes counted. Opp. 20. A manual recount, whether conducted accurately or not, may well increase the number of "votes" recorded in those selected counties (and, not incidentally, result in more Democratic "votes"). But the votes of numerous Florida citizens whose ballots are not being scrutinized for some slight indication of "intent" will go uncounted, and as a result, their votes will have less weight in choosing the next President than those cast by identi- cally situated citizens in other Florida counties. This fundamentally unequal treatment of ballots cast by iden- tically situated voters is patently unconstitutional. The FDP is mistaken in suggesting that there can be no unconstitutional vote dilution when additional "votes" are counted. As the Eleventh Circuit explained in Roe v. Alabama, 43 F.3d 574 (11th Cir. 1995) ("Roe I"), if some votes are counted improperly, other citizens' votes will be unconstitutionally "diluted," even though the results of the challenged ballot-counting mechanism may be to increase the total number of votes counted. Id. at 581. The FDP asserts that the one-person-one-vote rule of the Fourteenth Amendment has no application to "at- large" elections based on a "statewide vote." Opp. 20. A voting scheme that places more weight on votes from a particular county, particularly where that county is dominated by one political party, violates equal protec- tion principles regardless of whether the election in- volves a "statewide" vote. Roe I, 43 F.3d at 577, 581 8 (invalidating state ballot scheme in statewide elections). Not surprisingly, the FDP cites no authority for this novel construction of the Fourteenth Amendment. The FDP's key assertion that "there is absolutely no `post-election departure from previous practice' in Flor- ida" is demonstrably incorrect. Opp. 20 n.8. The entire manual recount process in Florida has been character- ized by "post-election departure from previous practice," including the abandonment of longstanding practices (for example, Palm Beach County's abandonment of a 1990 policy prohibiting the counting of merely "dim- pled" ballots), and dramatic lurches from one newly ar- ticulated "standard" to another. As the Roe I court held, such "post-election departures" deny voters equal pro- tection. 43 F.3d at 581. C. The Manual Recount Violates Due Process Florida's failure to provide clear guidelines that can be consistently and objectively applied to govern the manual recounts constitutes a violation of the Due Proc- ess Clause. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 432 (1982); Roe I, 43 F.3d at 580; Duncan v. Poythress, 657 F.2d 691, 703 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012 (1982); Griffin v. Burns, 570 F.2d 1065, 1077-79 (1st Cir. 1978). Although the FDP asserts that the statutory scheme does provide standards, the only "standard" it identifies is the extremely basic and general one of "the intent of the voter." Opp. 22 n.9. As the general confusion, changes in approach, and litigation emerging from the recount process conclusively demonstrate, that general- ized statement of purpose is plainly inadequate to serve as a meaningful guide to how to divine the voter's intent. The canvassing boards are each applying different "standards" to the evaluation process, and those stan- dards have changed repeatedly and they continue to change, in a setting of intense political pressure. In 9 short, the rules are changing as the "game" is being played and the contest is being determined by "rules" that were not in place when the votes were cast-all in violation of the Due Process Clause. E.g., Logan, 455 U.S. at 432-33; Griffin, 570 F.2d at 1077-79; Roe I, 43 F.3d at 580-81.3 D. The Manual Recount Violates The First Amendment Voting is protected by the First Amendment. Wil- liams v. Rhodes, 393 U.S. 23, 30 (1968). The FDP nonetheless seeks to preserve the standardless, selective recounts from challenge under the First Amendment by arguing that Florida officials do not have "unconstrained discretion." Opp. 26. As set forth above, however, Florida statutes do not provide any meaningful con- straint on or guidance for the local canvassing boards; and, in any event, it is plain-from the changing stan- dards-that Florida law, as applied and in practice, does permit officials to act with insufficiently constrained discretion. Thus, under controlling law, the Florida re- counts as currently conducted violate the First Amend- ment. Forsyth County v. Nationalist Movement, 505 U.S. 123, 129-30 (1992) (an "impermissible risk of sup- pression of ideas" exists where "an ordinance . . . dele- gates overly broad discretion to the decisionmaker"). The FDP also asserts that Florida's arbitrary and un- equal manual recount constitutes mere "decisionmaking internal to the government" and therefore that First Amendment principles do not apply. Opp. 26. This Court has made clear, however, that the States' power in 3 The FDP also does not dispute that the crucial initial de- cision by the canvassing boards to begin the manual recount process is governed by no standard at all, not even the intent "standard." See Pet. 20 n.5. 10 federal elections remains subject to the First Amend- ment. Tashjian v. Republican Party, 479 U.S. 208, 217 (1986). CONCLUSION This is a unique case of undeniable, imperative pub- lic importance to the Nation and the Constitution. For the reasons set forth above and in the petition, the peti- tion for a writ of certiorari should be granted. Respectfully submitted. BENJAMIN L. GINSBERG THEODORE B. OLSON PATTON BOGGS LLP Counsel of Record 2550 M Street, N.W. DOUGLAS R. COX Washington, D.C. 20037 THOMAS G. HUNGAR (202) 457-6000 MARK A. PERRY GIBSON, DUNN & CRUTCHER LLP GEORGE J. TERWILLIGER III 1050 Connecticut Avenue, N.W. TIMOTHY E. FLANIGAN Washington, D.C. 20036 MARCOS D. JIMÉNEZ (202) 955-8500 WHITE & CASE LLP 200 South Biscayne Blvd. BARRY RICHARD Suite 4900 GREENBERG TRAURIG, P.A. Miami, Florida 33131 101 East College Avenue (305) 371-2700 Post Office Drawer 1838 Tallahassee, FL 32302 (850) 222-6891 Counsel for Petitioners November 24, 2000