In the Supreme Court of the United States BUSH, George W. v. PALM BEACH COUNTY CANVASSING BOARD, ET AL No. 00-836 Brief Amicus Curiae on Behalf of DISENFRANCHISED VOTERS IN THE USA Brief in Support of Neither Party Affirming in Part the Opinion of the Florida Supreme Court and Seeking Equitable Relief Filed Under Rule 37.6 of the United States Supreme Court Nov. 28, 2000 EXPEDITED BRIEF ON 81/2 by 11 paper, white cover (Final version to be delivered to the Clerk of the US Supreme Court with appropriate colored cover on or before 4p.m. Tuesday December 5, 2000) Attorney for Amicus Curiae Ilise L. Feitshans JD and ScM Counsel of Record Adjunct Faculty Cornell University ILR and The George Washington University School of Public Health Post Office Box 2233 Haddonfield NJ USA 08033 856 428 0605 fax 856 428 4198 ilise@prodigy.net NOTE: THIS BRIEF WAS INITIALLY FILED ON BEHALF OF CHARLES WEILER, MARYANN HUNSBURGER AND PATRICK McFADDEN, citizens who voted in the November 2000 Election for the 43rd President of the United States. By leave of these Amici and of the Clerk of the Supreme Court of the United States, this brief is hereby Consolidated with Petitions Pro Se by two voters who were unaware of the Rules of Procedure of the US Supreme Court of the United States and would have otherwise been without representation in this matter even though they have spent time and effort writing briefs for this case on their own. Those two voters, Gregory Apelain and Justin A. Frank, have joined the original Amici. Their comments essentially parallel the view of the original Amici and therefore will appear as Exhibit 1 and Exhibit 2 of the final version of this brief. 1 Brief Amicus Curiae on Behalf of DISENFRANCHISED VOTERS IN THE USA Brief in Support of Neither Party Affirming in Part the Opinion of the Florida Supreme Court and Seeking Equitable Relief Table of Contents Table of Authorities and Cases Cited 4 STATEMENT OF INTEREST BY AMICUS 6 SUMMARY OF THE ARGUMENT 7 I. RULE 37.6 NOTIFICATION 7 II QUESTIONS PRESENTED BY THIS COURT 7/8 III.STATEMENT OF THE CASE 8 A. POTENTIAL UNCONSTITUTIONAL PRACTICES IN FLORIDA IMPACT 8 THE ENTIRE NATION B. STRICT SCRUTINY IS WARRANTED TO PRESERVE THE FRANCHISE 10 IV QUESTIONS PRESENTED TO THE COURT 11 QUESTION 1. Whether post-election judicial limitations on the discretion granted by the legislature to state executive officials to certify election results, and/or post-election judicially created standards for the determination of controversies concerning the appointment of presidential electors, violate the Due Process Clause or 3 U.S.C. s 5, which requires that a State resolve controversies relating to the appointment of electors under "laws enacted prior to" election day. A. JUDICAL REVIEW, ALTHOUGH RETROSPECTIVE IS NOT A 11 RETROACTIVE USE OF THE LAW. B. THE FLORIDA COURT RULED NARROWLY, CONSISTENT WITH 12 THE UNITED STATES CONSTITUTION AND THE VOTING RIGHTS ACT OF 1965 AND THE OBLIGATION OF COURTS TO RESOLVE POST-ELECTION DISPUTES. C. VOTING RIGHTS OF ALL VOTERS ARE IMPACTED BY THESE 14 2 CIRCUMSTANCES REQUIRING A COMPLETE RECOUNT OF ALL BALLOTS OR A NEW ELECTION: QUESTION 2: Whether the state court's decision, which cannot be reconciled with state statutes enacted before the election was held, is inconsistent with Article II, Section 1, clause 2 of the Constitution, which provides that electors shall be appointed by each State "in such Manner as the Legislature thereof may direct." 15 A. THE UNITED STATES CONSTITUTION ALLOWS LEEWEAY TO THE 15 STATES BUT DOES NOT ALLOW OR ENCOURAGE LEGISLATORS TO SUBSTITUTE THEIR WISHES OR DESIRES FOR THE WILL OF THE PEOPLE B. THE WILL OF THE PEOPLE OF FLORIDA IS PRESENTLY UNKNOWN 16 Question 3. What would be the consequences of this Court's finding that the decision of the Supreme Court of Florida does not comply with 3U.S.C Sec. 5? 17 .UNCONSTITUTIONAL ELECTION LAWS REQUIRE REMEDIES SUCH AS 17 RECOUNT OR A NEW ELECTION CONCLUSION: 17/18 UNCONSTITUTIONAL LAWS CANNOT BE SUPPLANTED BY THE ARBITRARY SELECTION OF ELECTORS BY LEGISLATORS AND REQUIRE A FULL RECOUNT OF ALL BALLOTS OR A NEW ELECTION EXHIBITS: 1 and 2 AWAITING COPY FROM AUTHORS 3 Brief Amicus Curiae on Behalf of DISENFRANCHISED VOTERS IN THE USA Brief in Support of Neither Party Affirming in Part the Opinion of the Florida Supreme Court and Seeking Equitable Relief Table of Authorities and Cases Cited CASES CITED: Anderson v. Celebrezze, 460 U.S. 780 (1983), FLADELL and ALBERTA MCCARTHY and LILLIAN GAINES, Plaintiffs. vs. PALM BEACH COUNTY CANVASSING BOARD, as constituted by County Court Judge Charles Burton; Supervisor of Elections Theresa LePore; and County Commissioner Carol Roberts; GEORGE W. BUSH, DICK CHENEY, AL GORE and JOE LIEBERMAN, Defendants. CASE NO. CL '00 10965 Florida Circuit Court, Fifteenth Judicial Circuit, Palm Beach County. November 8, 2000 Kramer v Union Free School District No. 125 395 US 621 (1969). League of United Latin American Citizens (LULAC) v. North East Independent School Dist., W.D.Tex.1995, 903 F.Supp. 1071.) Marbury v. Madison 1 Cranch 137, 2 L.Ed. 60 (1803) McCulloch v Maryland 17 US (4 Wheat.) 316, 421 (1819) McDERMOTT, et al , CANVASSING BOARD OF VOLUSIA COUNTY, FLORIDA, Plaintiffs, v. HONORABLE KATHERINE HARRIS, MILLER, a registered voter of the State of Florida Plaintiff, v. KATHERINE HARRIS, Secretary of State, et. Al. DOCKET-NUMBER: 00-9004-CIV United States District Court, S.D. Florida. November 8, 2000) (withdrawn) National Ass'n for Advancement of Colored People, Inc. (NAACP) v. City of Niagara Falls, N.Y., W.D.N.Y.1994, 913 F.Supp. 722, affirmed 65 F.3d 1002.) SIEGEL, et al., Florida REGISTERED VOTERS, PLAINTIFFS/APPELLANTS, and GOVERNOR GEORGE W. BUSH and DICK CHENEY, et.al. v. THERESA LePORE, et. Al. COUNTY CANVASSING BOARDS of PALM BEACH, MIAMI-DADE, BROWARD and VOLUSIA COUNTIES, 00-15981 United States Court of Appeals, Eleventh Circuit. November 15, 2000; South Carolina v Katzenbach 383 US 301, 314-15 4 . STATUTES AND U.S. CONSTITUTIONAL PROVISIONS Civil Rights Act 42 U.S.C. 1983 United States Constitution: Article IV: Section 1. United States Constitution Fourteenth Amendment United States Constitution Due Process Clause or 3 U.S.C. s 5 Voting Rights Act of 1965 (Amended 1970) 42 U.S.C. 1973 OTHER AUTHORITIES: Brief of Petitioner George W. Bush Jr. Bush v. Palm Beach County Board of Cavassers United States Supreme Court 00-836 November 22, 2000 Laurence Tribe, AMERICAN CONSTITUTIONAL LAW "RIGHTS OF POLITICAL PARTICIPATION" Second Edition, The Foundation Press NY at 1086-87] 5 In the Supreme Court of the United States BUSH, George W. v. PALM BEACH COUNTY CANVASSING BOARD, ET AL No. 00-836 Brief Amicus Curiae on Behalf of DISENFRANCHISED VOTERS IN THE USA Brief in Support of Neither Party Affirming in Part the Opinion of the Florida Supreme Court and Seeking Equitable Relief Filed Under Rule 37.6 of the United States Supreme Court Nov. 28, 2000 Attorney for Amicus Curiae Ilise Levy Feitshans JD and ScM Counsel of Record Adjunct Faculty Cornell University ILR and The George Washington University School of Public Health Post Office Box 2233 Haddonfield NJ USA 08033 856 428 0605 fax 856 428 4198 ilise@prodigy.net STATEMENT OF INTEREST BY AMICUS Charles J. Weiler is a voter from the State of New Jersey. Mr Weiler has been an American citizen since he was born, and served in the US Peace Corps. Mr Weiler has been a registered voter since 1972. He is a self-declared "Independent" voter who does not regularly associate with any particular political party affiliation. Maryann B. Hunsberger, a voter from the State of New Jersey, has been an American citizen since she was born, and has been a registered voter since 1976. She is a disabled American. Patrick J. McFadden, is a voter from Pennsylvania, and has been an American citizen since he was born; he has been a registered voter since 1969. Gregory Apelain is a voter from the State of New Mexico. Mr. Apelian has been an American citizen since he was born. Mr. Apelian has been a registered voter since 1980. Justin A. Frank, MD, is a voter from the District of Columbia, (Washington, D.C.). He has been an American citizen since he was born and has been a registered voter since 1964. Mr. Weiler and similarly situated US Citizens who voted in the State of New Jersey and other states in the United States during the national presidential election that was held on November 7, 2000 have an interest in preserving his franchise and that of other voters. Mr. Weiler and other similarly situated voters run the risk of having their vote diluted or disenfranchised by any or all unconstitutional Florida State Electoral laws or unconstitutional practices under Florida Election laws that obfuscate their votes so that the will of the people cannot be heard. 6 SUMMARY OF THE ARGUMENT A fundamental precept of democracy embraces recourse to the courts after events have occurred. A fundamental precept of asking the courts to solve problems retrospectively is the essence of Judicial Review, which often requires crafting a new rule to fix a pre-existing problem after the problem has become manifest, but in the process also filling the void in the law with a new rule in order to solve the problem at bar. The case at bar involves the decision of the Florida Supreme Court solving a problem by crafting a rule as needed, but not in a prohibited "retroactive" manner. The problem it attempted to solve threatens to disenfranchise voters throughout the United States of America who voted in the national election for the 43rd President of the United States, if the laws in Florida are found to be unconstitutional or if the electoral process in Florida as applied in that election cannot withstand strict scrutiny as the sacrosanct right to vote requires under the United States Constitution. If the Florida law can be repaired as the Florida Supreme Court attempted, there should be a statewide recount of votes. If the law is so flawed that it must be discarded, there should be a new election as a consequence of these flaws. The legislature, although authorized under the US Constitution to select electors, cannot supplant the will and voice of the people if that voice as expressed through voting has not been clearly heard. The Florida legislature must therefore await such recounted ballots or new election before it can instruct or select its electors. I. RULE 37.6 NOTIFICATION All parties to this case have granted a blanket consent for Amici. Note: this brief was initially filed on behalf of CHARLES WEILER, MARYANN HUNSBURGER AND PATRICK McFADDEN, citizens who voted in the November 2000 Election for the 43rd President of the United States. By leave of these Amici and of the Clerk of the Supreme Court of the United States, this brief is hereby Consolidated with Petitions Pro Se by two voters who were unaware of the Rules of Procedure of the US Supreme Court of the United States and would have otherwise been without representation in this matter even though they have spent time and effort writing briefs for this case on their own. Those two voters, Gregory Apelain and Justin A. Frank, have joined the original Amici. Their comments essentially parallel the view of the original Amici and therefore will appear as Exhibit 1, (Gregory Apelian) and Exhibit 2 (Justin Frank) in the final version of this brief. II QUESTIONS PRESENTED BY THIS COURT 1. Whether post-election judicial limitations on the discretion granted by the legislature to state executive officials to certify election results, and/or post-election judicially created standards for the determination of controversies concerning the appointment of presidential electors, violate the Due Process Clause or 3 U.S.C. s 5, which requires that a State resolve controversies relating to the appointment of electors under "laws enacted prior to" election day. 2. Whether the state court's decision, which cannot be reconciled with state statutes enacted before the election was held, is inconsistent with Article II, Section 1, clause 2 of the 7 Constitution, which provides that electors shall be appointed by each State "in such Manner as the Legislature thereof may direct." 3. What would be the consequences of this Court's finding that the decision of the Supreme Court of Florida does not comply with 3U.S.C Sec. 5? III. STATEMENT OF THE CASE A. POTENTIAL UNCONSTITUTIONAL PRACTICES IN FLORIDA IMPACT THE ENTIRE NATION The United States Constitution (Article IV: Section 1.) requires "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the relief thereof." [See also: Exhibit 1 by Gregory Apelian] The national election of President and Vice President transcends state boundaries and has implications beyond local (State) elections. Upholding the election laws faithfully executed in other States of the United States requires under the United States Constitution, as a social contract, that each State create through its legislature and implement through its own means lawfully impartial and fair elections. That social contract is codified in Article IV of the United States Constitution, the "full faith and credit" clause. While the process may be shaped by the legislature of each State in part, that process is subject to judicial review to correct unforseen problems or irregularities, and the integrity of the entire nation election rests upon the good faith belief that each State will respect the other by refraining from improper practices. The appearance of impropriety in an election harms the integrity of the outcome of the whole and therefore is a matter of constitutional and national concern. Furthermore, this Court has consistently given matters regarding the paramount right to vote strict scrutiny. Democracy so requires. The concept of Judicial Review, endemic in an appreciation of all the workings of this Court and the Courts of the States of the United States is a long-cherished principle of democracy, first pronounced by this Court nearly two hundred years ago, Marbury v. Madison 1 Cranch 137, 2 L.Ed. 60 (1803), which asked questions that would be equally apt before the Florida Supreme Court this year, "2d.If he has a right, and that right has been violated, doo the laws of this country afford him a remedy? [and] 3d. If they do afford him a remedy, is it a mandamus issuing from this Court?" The Marbury Court exhibited prescience again, regarding events in Florida recent to us but centuries after it wrote its opinion, "It is not the office of the person to whom the writ is directed, but the nature of the thing to be done that the propriety or impropriety of issuing a mandamus, is to be determined". As stated by Petitioner (p.4)"The choosing of presidential electors is a matter of great national importance and interest." `As this Court stated in Anderson v. Celebrezze, 460 U.S. 780 (1983), [I]n the context of a Presidential election, state-imposed restrictions implicate a uniquely important national interest. For the President and Vice President of the United States are the only 8 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.' Id. at 794-95. As cited by Petitioner. Furthermore, one need not have a special interest or stake in the outcome of a particular election in order to have a voice as a voter in that election (Kramer v Union Free School District No. 125 395 US 621 (1969). Under vigorous equal protection scrutiny, this Court has suggested that the fundamental character of the right to vote is crucial to ensuring that elected officials fairly represent the electorate. [Laurence Tribe, AMERICAN CONSTITUTIONAL LAW "RIGHTS OF POLITICAL PARTICIPATION" Second Edition, The Foundation Press NY at 1086-87] One unprecedented aspect of the recent election in Florida is that it has produced a remarkable amount of litigation, characterized by the Petitioner as "chaos". Without addressing the merits of these cases, the mere existence of such litigation demonstrates that the existing Florida laws are, if not unconstitutional, then problematic at best. Dozens of cases have been filed, only a small sample of which are cited here for brevity. (See: McDERMOTT, et al , CANVASSING BOARD OF VOLUSIA COUNTY, FLORIDA, Plaintiffs, v. HONORABLE KATHERINE HARRIS, as SECRETARY OF STATE, STATE OF FLORIDA, and HONORABLE KATHERINE HARRIS, HONORABLE BOB CRAWFORD, HONORABLE LAURENCE C. ROBERTS, as the ELECTIONS CANVASSING COMMISSION, Defendants requesting extended time from the Secretary of State of Florida to count votes; See also: MILTON H. MILLER, a registered voter of the State of Florida Plaintiff, v. KATHERINE HARRIS, Secretary of State, Chief Election Officer, THERESA LePORE. Supervisor of Elections for Palm Beach County, Florida, and FLORIDA DEPT OF STATE, DIVISION OF ELECTIONS Defendant, seeking EMERGENCY MOTION FOR INJUCTIVE RELIEF DOCKET-NUMBER: 00-9004-CIV United States District Court, S.D. Florida. November 8, 2000) In Miller V,. Harris, above, (withdrawn) Plaintiff voted for a presidential candidate but was unsure of who he voted for as a result of the "confusing and misleading ballot" See also: SIEGEL, et al., Florida REGISTERED VOTERS, PLAINTIFFS/APPELLANTS, and GOVERNOR GEORGE W. BUSH and DICK CHENEY, as CANDIDATES for PRESIDENT and VICE PRESIDENT of the UNITED STATES OF AMERICA, Plaintiffs-Appellants v. THERESA LePORE, et. Al. COUNTY CANVASSING BOARDS of PALM BEACH, MIAMI-DADE, BROWARD and VOLUSIA COUNTIES, Respectively, Defendants-Appellees. 00-15981 United States Court of Appeals, Eleventh Circuit. November 15, 2000; See also ANDRE FLADELL and ALBERTA MCCARTHY and LILLIAN GAINES, Plaintiffs. vs. PALM BEACH COUNTY CANVASSING BOARD, as constituted by County Court Judge Charles Burton; Supervisor of Elections Theresa LePore; and County Commissioner Carol Roberts; GEORGE W. BUSH, DICK CHENEY, AL GORE and JOE LIEBERMAN, Defendants. CASE NO. CL '00 10965 Florida Circuit Court, Fifteenth Judicial Circuit, Palm Beach County. November 8, 2000 which states in its pleadings: "all of the candidates for the Presidential election were listed on two facing pages of the ballot booklet that is attached to each voting machine. The punch holes for each candidate were in a single column that ran between the facing pages.. The names of independent (non- Democratic and non-Republican candidates such as Pat Buchanan) and the punch holes for such candidates were placed adjacent to the names of the Democratic Candidates, Al Gore and Joe Lieberman. . As a result, many voters, and in particular, many senior citizens, intending to vote 9 for Al Gore and Joe Lieberman, mistakenly punched the punch hole on the ballot card designated for Pat Buchanan and Ezola Foster (hole #2).[That same document continues]"In addition, the holes in the ballot cards for numbers 4 (Gore and Lieberman) and 5 (Pat Buchannan and Ezola Foster) were directly adjacent to the section of the ballot listing the Democratic candidates (Gore and Lieberman). As a result, many voters, and in particular, many senior citizens, intending to vote for Al Gore and Joe Lieberman punched punch hole numbers 4 and 5 in the mistaken belief that such numbers referred to a vote for Al Gore and Joe Lieberman. It has been reported in the Palm Beach Post that in Palm Beach County Reform Candidates (Pat Buchannan and Ezola Foster) received 3,040 votes."). Despite this morass, Florida law does clearly require the counties and if necessary, reviewing courts "to determine the voter's intent." Fla. Stat. s 102.166(7) (emphasis added). The totality of the problems described in good faith in these and other pleadings silence the voice of the people in Florida so that the true intentions of the voters remains unknown. B. STRICT SCRUTINY IS WARRANTED TO PRESERVE THE FRANCHISE When viewed in the aggregate, the citizen cases filed in good faith (listed above) raise a suspicion of impropriety that merits strict scrutiny when the fundamental right to vote is at stake, especially when the election involved is a national election for the President of the United States. This situation was further complicated on November 26, 2000 when, pursuant to the first of two deadlines made available to the Florida Secretary of State in her discretion for accepting final vote tallies for certification, the Secretary of State accepted a combination of original tallies from some counties, hand counted-recount tallies with corrections from other counties, and rejected a partial recount from yet another county which requested additional time to complete its task, even though that same county noted that its work would be completed before the second of the court- established deadlines. It has also been reported in news media that there may be anywhere from ten thousand to twenty thousand uncounted votes across various Florida counties. The Voting Rights Act was designed to protect every citizen's vote from precisely such errors. Also, the law is designed top prevent the dilution or usurpation of the votes from blacks, other minorities or other suspect classifications in a pattern, "had all people cast ballots that could be counted along the same lines as their neighbors, Mr. Gore would have gained nearly 7000 (seven thousand) votes. [See New York times, Wednesday Nov 29 2000 "Racial Pattern In Demographics of Error-Prone Ballots" A25 by Josh Barbanel and Ford Fessenden] The same article previously noted that, "The impact of these differences on the outcome will never be known but their potential magnitude is evident in Miami-Dade County, where predominantly black precincts saw their votes thrown out at twice the rate as Hispanic precincts and nearly four times the rate of white precincts. In all, one out of eleven ballots in predominantly black precincts were rejected, a total of 9,904 (nine thousand nine hundred and four)." Id., New York Times. [See also: Exhibit 2 by Justin A. Frank, MD] The Voting Rights Act of 1970 was enacted to enforce the Fifteenth Amendment which provides that the right of citizens to vote shall not be denied or abridged by the United States or by any state on count of race, color, or previous condition of servitude. (National Ass'n for Advancement of Colored People, Inc. (NAACP) v. City of Niagara Falls, N.Y., W.D.N.Y.1994, 913 F.Supp. 10 722, affirmed 65 F.3d 1002.) Thus, the "standardless" recounting in "chaos'' about which the Petitioner initially complained was actually compounded by partisan refusal to accept partial tallies and await a later, but no less convenient deadline before certification [See Petitioner's Brief]. Consequently, whether by intention or by inherent flaws in the Florida Election laws and its attendant process, the Certified votes for Florida at the time of this writing are an incomplete admixture of several inconsistent tallying methods and cannot accurately reflect the will of the people. Such problems, regardless of their cause or their precise number, rise to such a level of magnitude that they encompass the entire voting process and have undermined the integrity of the entire nation's votes, threatening to abridge the Fourteenth Amendment due process rights of all voting citizens in the United States. The more voters that are disenfranchised in Florida and in the nation, the more we give up our democracy. The good faith obligation of the States to pass and uphold fair election laws is a part of the social contract between the States of the United States that is a fundamental bedrock of our nation's union. Under the United States Constitution Article IV, full faith and credit for the acts of the respective States requires no less than an honorable and honored mutual respect, exhibited in part through fair and accurate election laws and attendant electoral process. To be meaningful, such requirements for full faith and credit necessarily include keeping "such acts, records, and proceedings" of elections for President and Vice President of the United States. Furthermore, the failure of any one State to uphold its portion of the social contract that requires fair, accurate and objective counting (or recounting) of ballots is a breach of the social contract between the States of the United States as expressed and implied in the US Constitution. Such a breach of the social contract taints the entirety of any national Presidential election, thereby disenfranchising all citizens who voted in said national election. IV QUESTIONS PRESENTED TO THE COURT 1. Whether post-election judicial limitations on the discretion granted by the legislature to state executive officials to certify election results, and/or post-election judicially created standards for the determination of controversies concerning the appointment of presidential electors, violate the Due Process Clause or 3 U.S.C. s 5, which requires that a State resolve controversies relating to the appointment of electors under "laws enacted prior to" election day. A. JUDICIAL REVIEW, ALTHOUGH RETROSPECTIVE IS NOT A RETROACTIVE USE OF THE LAW. Petitioner mischaracterizes the decision of the Florida Supreme Court as "retroactive" and perhaps even prohibited "ex post facto" laws (See Petitioner's Brief) . Yet, the logic of a situation rife with inconsistencies in the written legislative statute mandates that a court review the election laws as applied to ballots cast by voters. Such review can only occur after the electoral process has revealed its embedded errors, and therefore by definition must be a post-hoc review. To be meaningful, the court must be able to rule without being considered to have written prescribed retroactive or ex post facto rules. The Constitutional principle of Judicial Review has long been known to this Court, first articulated nearly two hundred years ago in Marbury v. Madison 1 Cranch 137, 2 L.Ed 60 (1803). 11 Petitioner has noted, "Given the national significance of the Florida election results, it is essential that the counting of ballots be conducted in a fair and consistent manner in accordance with established Florida law". Petitioner fails to point out that the system, absent judicial intervention, had reached an impasse because of the legislature's failure to provide clear deadlines for beginning or completing requested or mandatory recounts of ballots. The Florida Supreme Court crafted a deadline to save the statute. In Marbury v. Madison 1 Cranch 137, 2 L.Ed. 60 (1803), whose remarkable prescience speaks to the issues at Bar, [supra] this Court further opined, "Those then who controvert the principle that the Constitution is to be considered, in court, as paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution and see only the law". If anything, the more convenient was also the later deadline: Tallies accepted at the first deadline required the Secretary of State on Sunday November 26 2000 to open her offices, which would otherwise be closed for the National Holiday of the Thanksgiving weekend; the second deadline was Monday morning at 9a.m. B. THE FLORIDA COURT RULED NARROWLY, CONSISTENT WITH THE UNITED STATES CONSTITUTION AND THE VOTING RIGHTS ACT OF 1965 AND THE OBLIGATION OF COURTS TO RESOLVE POST-ELECTION DISPUTES To the extent that errors in the Florida electoral process impinge on the franchise within and without the State, the Florida Supreme Court surgically attempted to reconstruct the broken fragments of the statute in order revive an otherwise lifeless will of the people as it was laid before its bar. To rectify this situation requires either a statewide recount with appropriate guidelines set forth by this Court, or a new election under new laws. The Florida Supreme Court held that the right to vote is the paramount right and therefore read savings measures into the text of the otherwise unworkable statute that governed the Florida election for the 43rd President of the United States. The alternative would have required the voters to hold a new election without clear rules to govern the election,. Absent a special session of the Florida legislature to craft such rules six or more days prior to the election itself. The Florida Supreme Court articulated again the principle often expressed by this Court, that the primacy of voting and respect for the exercise of the franchise is a fundamental right to all citizens. The court reaffirmed that voting is the paramount right of the people; one that could not be supplanted or transgressed by hyper technical attention to deadlines, if the price of those deadlines cost voters their rights. Marbury v. Madison 1 Cranch 137, 2 L.Ed. 60 (1803), "It is emphatically the province and duty of the judicial department n to say what the law is". Petitioner has erroneously claimed "By retroactively changing the law in Florida through judicial intervention, the Supreme Court of Florida's decision preventing the Secretary of State of Florida from exercising her legislatively conferred authority to perform the act of certification that would complete the electoral process in Florida has added to that angst and has strayed from established 12 federal constitutional and statutory law." If anything, however, the Florida court ruled too narrowly and with too little retrospective oversight, leaving to the discretion of the counties the methods for recounting votes and a too- small window of opportunity for recounting by hand the votes in densely populated counties, who later abandoned their recount efforts. To the extent that the Petitioner complains there are no standards, the court wisely attempted to defer to counties to allow them their traditional freely chosen methods, in a reading of the very clause that Petitioner cites for the argument that the States shall choose electors "in such Manner as the Legislature thereof may direct". In essence, the Petitioner's suggested reading of the United States Constitution is counter-intuitive; restraining the counties from determining the methods of tallying the ballots from their own voters while giving the legislature unbridled discretion regarding the selection of electors. Neither of these approaches can be tolerated if they fail to pass constitutional muster under the strict scrutiny afforded the right to vote. Petitioner continues: "The manual recount underway in certain Florida counties is unconstitutional because it is being conducted in the absence of meaningful objective standards." A recount cannot, by its nature be, unconstitutional. The methods written by the legislature to achieve the tabulation and recording of votes can, however, be so flawed that the system is unconstitutional as applied in a given case. We believe that in this case, the Florida law has been applied in a manner that is unconstitutional and must be rectified or in the alternative, if it is indeed beyond repair, then new rules must be set forth by this Court or the Florida legislature in a timely manner with a new election by Florida voters for the 43rd President of the United States. The lack of adequate timetables in the Florida Electoral law for candidates to request recounts, and for recounts to be completed; the ambiguity within the Florida statute that did not reveal a specific preference for hand counted-ballots or machine counted ballots for the purposes of recounting; and the absence of any clarifying instruction on a statewide basis to determine how electoral ballots are to be counted are not necessarily fatal to the statute in itself if any one of these problems could be viewed in isolation. The totality of these peculiar circumstances, however, makes it so very difficult to sort out the precise nature of the problems that questions can be answered and problems can be corrected. There remain the lingering doubts raised by improperly drafted ballots that were not legible to voters; improper tallying by a hodgepodge of methods with so-called "standardless" procedures; (See Petitioner's Brief, in several instances) defects in the availability and accessibility of voting places themselves. Media accounts suggest that these irregularities also have occurred in great proportion in areas inhabited by blacks, minorities and certain ethnic groups, whose voting rights enjoy special protection under the Fourteenth and Fifteenth Amendments of the United States Constitution, as implemented Congress in the Voting Rights Act and upheld by this Court in previous cases. The aim of the Voting Rights Act is to prevent political bodies from implementing election systems or practices which Act, whether intentionally or not, to minimize, cancel or dilute the voting strength or political effectiveness of minority groups. (League of United Latin American Citizens (LULAC) v. North East Independent School Dist., W.D.Tex.1995, 903 F.Supp. 1071.) Such discriminatory consequences, whether intended or not, would also raise 13 concern that the entire election was tainted by potential violations of the Voting Rights Act. Thus, the post-election "judicial limitations" in this case that concern the Petitioner were designed to foster, rather than burden, constitutional due process. The Florida Supreme Court carefully reasoned in order to save a defective election process, in order to avoid the very confusion that confronts our nation today. In this regard, the Florida Supreme Court should not be reversed for having been too deferential to a statute that was in fact defective. The election laws, and not the written opinion of the reviewing court that attempted to mend the statutes errors, was inartfully drafted and has thereby obfuscated the will of the people. The choice before this Court, therefore, is whether to further rectify the errors in the statute by reading into it new deadlines that will reasonably allow time to recount by hand or otherwise all of the ballots of all the voters in the State of Florida, or in the alternative, declare the statute and the election that was conducted pursuant to it invalid, thereby requiring a new election to be held in the State of Florida to determine who will be the winner of the 43rd Presidential election in Florida. C. VOTING RIGHTS OF ALL VOTERS ARE IMPACTED BY THESE CIRCUMSTANCES REQUIRING A COMPLETE RECOUNT OF ALL BALLOTS OR A NEW ELECTION Under the Civil Rights Act 42 USC 1983 and the Voting Rights Act 42 USC 1973 and the Fourteenth Amendment of the US Constitution , The right of the people to vote and to express their political will in elections by exercising their franchise is sacrosanct under the US Constitution and is protected by the Voting Rights Act as upheld in South Carolina v Katzenbach 01, 314-15 (1966).As evinced by the pending or withdrawn litigation cited above, these allegations filed in good faith by citizens are only a small fraction of the totality of the irregularities and improprieties within the voting process as it was conducted in Florida in the November 2000 Presidential election. The U.S. Constitution, Amendment XIV: Section 1 clearly protects the franchise of all citizens equally regardless of state of residence: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United State; nor shall any state deprive any person of life, liberty, or prosperity without due process of law; nor deny to any person within its jurisdiction the equal protection of the law." Any effort to undermine the integrity of this vital social contract that binds the States to each other by allowing a State to fall below the necessary minimum protections of the right to vote for its citizens in a National Presidential election undermines the integrity of all of the states and taints the valued franchise of citizens in those states that have followed the agreed upon due process standards. Such protections are reinforced by the Voting Rights Act (42 USC 1973) (quote) 42U.S.C.A. §1973 UNITED STATES CODE ANNOTATED TITLE 42. THE PUBLIC HEALTH AND WELFARE CHAPTER 20--ELECTIVE FRANCHISE SUBCHAPTER I-A-- 14 ENFORCEMENT OF VOTING RIGHTS ""§§ 1973. Denial or abridgement of right to vote on account of race or color through voting qualifications or prerequisites; establishment of violation (a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, as provided in subsection (b) of this section. (b) A violation of subsection (a) of this section is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. In order for the national election of the 43rd President of the United States to be viewed as fair and impartial in the eyes of all USA voters who participate in that process, as well as the world or other third party objective observers it is imperative these federal standards, set forth in the Voting Rights Act as upheld by this Court, be met. When use of the law is popularly viewed as unfair and people believe that something happened that was improper, such that voters feel cheated by the process itself in Florida, (whether or not there has been any underlying fraud or corruption in the process itself,) impurity of the voice of the people thereby undermines the voice of all franchised voters who voted in the same national election for the US President. These types of irregularities bespeak an underlying corruption in the process, whether or not any such improprieties have occurred and resemble more of the civil and political rights issues seen in foreign nations than the USA's proud democratic history. The harms caused by that appearance of impropriety which is repugnant to our democratic system of governance must be remedied. In such a case the sole valid remedy must be to remove the taint upon the people's franchise by calling for a re-election whereby the voters of Florida whose voice has been overtaken by the existing system will have a new opportunity to vote for the President and Vice President of the United States. QUESTION 2: Whether the state court's decision, which cannot be reconciled with state statutes enacted before the election was held, is inconsistent with Article II, Section 1, clause 2 of the Constitution, which provides that electors shall be appointed by each State "in such Manner as the Legislature thereof may direct." A. THE UNITED STATES CONSTITUTION ALLOWS LEEWEAY TO THE STATES BUT DOES NOT ALLOW OR ENCOURAGE LEGISLATORS TO SUBSTITUTE THEIR WISHES OR DESIRES FOR THE WILL OF THE PEOPLE. Ironically, the answer to Petitioner's seemingly obvious question in this case is one of first impression without precedent before this Court. Thus, we must look to the logic of the plain 15 meaning of the words in their context, as a part of the totality of the precepts that create a framework for democratic republican governance, in order to guide the use of these words. Although States are left to fashion their methods of determining electors as their representatives, it is nonetheless dictated by logic as well as constitutional principles that such electors must vote in a manner that is consistent with the will of the majority and that any selection before all votes have been counted, or any selection based on an arbitrary portion of the votes to be tallied (but not all the ballots cast that have been tallied) is a usurpation of the legitimate power of the people as expressed through exercising their franchise. It is unlikely, if not inconceivable, that the US Constitution could be read to allow Florida legislators (or the legislators of any other State) to simply select a Presidential candidate of their choice who has not been chosen by the majority of the voters in their state. The full faith and credit clause Article IV of the US Constitution, demands that such appointment of electors be achieved without abridging the rights of any voters in order to maintain the integrity of the votes of citizens from other states. Marbury v. Madison 1 Cranch 137, 2 L.Ed. 60 (1803), instructs us that in such situations, " The constitution is either superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable". The US Constitution grants States leeway and discretion in selecting their electors, but only insofar as the selection is consistent with the fundamental precepts of democracy. The choice must not be anarchistic or autocratic, but consistent with democratic principles, guided by and reflecting the will of the majority of the voters in that State. Furthermore, the methods chosen by said legislatures must comport with the parameters of democratic governance set forth in the United states Constitution and must exhibit mutual respect for the other States, consistent with Article IV's commitment by the States to accord each other full faith and credit. Thus, the States have reserved the right to make certain discretionary choices regarding the methodology for selecting electors, but the candidate for whom those electors cast their ballots must be chosen by democratic means and must be consistent with the wishes of the majority of voters in the State. B. THE WILL OF THE PEOPLE OF FLORIDA IS PRESENTLY UNKNOWN It would be unconscionable, as well as unconstitutional for the legislature to disregard the will of the people by selecting a candidate that the people would not have elected. So too, in an election so close that the difference between the votes separating the certified winner and the loser is smaller than the statistical margin of error for counting, it is unclear whether the will of the people can be discerned or clearly heard. Therefore, the Florida legislature cannot proceed to select electors if either of the two following consequences have arisen: (1) the underlying Florida law that governed the election itself was based on an unconstitutional statute or (2) the votes from the State have not been counted properly or all votes have not been tallied, regardless of the certifications by election officials. The consequences of finding otherwise, would be the ability of a state Legislature to pick any 16 electors they wish, without regard to the total vote of the people, thereby breaking the full faith and credit clause of the US Constitution. QUESTION 3 What would be the consequences of this Court's finding that the decision of the Supreme Court of Florida does not comply with 3U.S.C Sec. 5? UNCONSTITUTIONAL ELECTION LAWS REQUIRE REMEDIES SUCH AS RECOUNT OR A NEW ELECTION If Florida is found to have breached the social contract between the states that implicitly but inevitably is a fundamental part of the respect accorded each and every State of the United States to the other States, breaking the obligation to grant each State "full faith and credit" under Article IV of the US Constitution, immediate and deliberate efforts must be made to repair the breach. Otherwise, such a breach of the social contract by Florida would taint the democratic process of the national election, thereby disenfranchising each citizen in the United States who voted in the election. The simplest and most trustworthy method for correcting these defects for the immediate question at bar concerning the election of the 43rd President of the United States of America: either recount all the votes in the State of Florida with oversight from federal authorities, or hold a new election with federal oversight pursuant to the precepts of the Voting Rights Act 42 US.C. 1973. Judicial oversight in this regard, despite the disparaging characterization used by Petitioner, is a necessary and appropriate use of the power of Judicial Review as it appears as a gloss in the text of Article III of the United States Constitution, and is commonplace when there are election problems to be sorted out. In the alternative, we believe the People of this Nation will be better satisfied if all the discomfort of the tainted Florida election can be removed by calling for a new direct ballot election in the State of Florida. CONCLUSION: UNCONSTITUTIONAL LAWS CANNOT BE SUPPLANTED BY THE ARBITRARY SELECTION OF ELECTORS BY LEGISLATORS AND REQUIRE A FULL RECOUNT OF ALL BALLOTS OR A NEW ELECTION The full faith and credit clause in Article IV of the US Constitution requires that states extend the same rights to all citizens of the United States and to express the same respect for all of the laws of the separate states equally. As Justice Marshall stated in McCulloch v Maryland 17 US (4 Wheat.) 316, 421 (1819), "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to this end, which are not prohibited but consistent with the letter and spirit of the constitution are constitutional". Due to the exceptionally small margin which is within the margin of error of the machines themselves, a hand count of all ballots in Florida essential to preserving the franchise of every citizen who has voted in this nations'' November 2000 election. It is inconceivable that a manual 17 hand count, although cumbersome and time consuming, can be so long in its duration to amount to a violation of due process rendering it unconstitutional. In the event that this Court finds such delays would harm the Republic without regard to Constitutional issues, it is respectfully requested that there be a new vote in the State of Florida, following, if necessary, laws that may be written by its State legislature to correct defects in existing Florida State Election laws, or such other remedies as this Court may deem appropriate. We nonetheless most respectfully and most vehemently pray that this Court should make every effort to include the votes of all Florida voters, whether by hand count or by a new voter election, so that democratic process will go forward and that the franchise of all voters shall be preserved. PLEASE NOTE: TWO BRIEFS WRITTEN BY CITIZENS ALONE WILL APPEAR AS EXHIBIT ONE AND EXHIBIT TWO IN THE FINAL VERSION OF THIS DOCUMENT 18