Text File

No. 00-949

_____________________________________________________ IN THE SUPREME COURT OF THE UNITED STATES _______________________________________________________________

GEORGE W. BUSH AND RICHARD CHENEY,

Petitioners,

v.

ALBERT GORE, JR., ET AL.,

Respondents.

____________________________________________

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA ________________________________________________________________

BRIEF AMICUS CURIAE OF THE BRENNAN CENTER FOR JUSTICE AT NEW YORK UNIVERSITY SCHOOL OF LAW IN SUPPORT OF RESPONDENTS ___________________________________________________________

BURT NEUBORNE Counsel of Record NATHANIEL PERSILY PHILIP G. GALLAGHER BRENNAN CENTER FOR JUSTICE AT N.Y.U. SCHOOL OF LAW Attorneys for Amicus Curiae 161 Avenue of the Americas, 12th Floor New York, NY 10013 (212) 998-6730

TABLE OF CONTENTS Page

Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Questions Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Interest of Amicus Curiae . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

I. The Term "Legislature" as Used in Article II, Section 1 of the United States Constitution Cannot Be Read to Empower the Members of a State Legislature to Ignore the Constraints and Norms Imposed Upon the Legislature by the State Constitution . . . . . . . . . . . . . . . . . . . . . . 9

A. The Term "Legislature" When Used in Article II, Section 1 of the Constitution Must Mean a Political Institution Functioning in Accordance with the Judicially Enforceable State Constitutional Powers and Constraints the Give It Life . . . . . . . . . . .10

B. Even if the Original Text of Article II, Section 1 Could be Read as Authorizing State Legislative Action in Violation of a State's Constitution, Such a Reading Cannot Survive the Adoption of the Tenth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . 12

II. If 3 U.S.C. § 5 is Read to Prevent the Supreme Court of Florida from Construing Florida Statutory Law to Permit a Hand Recount of Presidential Ballots to Assure that All Votes are Counted, It Would Violate the Tenth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

III. The Manual Recount Process Sanctioned by Florida Statute and Executed by the Florida Supreme Court Prevents a Violation of the Equal Protection Clause by Remedying the Disparities that Result From an Electoral Scheme That Produces Widespread Intercounty Variation in the Mechanics of Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

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TABLE OF AUTHORITIES

CASES

Anderson v. Celebrezze, 460 U.S. 780 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Brown v. Socialist Workers '74 Campaign Comm., 459 U.S. 87 (1982) . . . . . . . . . . . . . 17

Buckley v. Valeo, 424 U.S. 1 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Bush v. Palm Beach County Canvassing Bd., 121 S. Ct. 471 (2000) . . . . . . . . . . . . . . 6, 7

City of Boerne v. Flores, 521 U.S. 507 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Fladell v. Palm Beach Canvassing Bd., No. SC00-2373, 2000 WL 1763142 (Fla. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Gore v. Harris , No. SC00-2431, 2000 WL 1800752 (Fla. Dec. 8, 2000) . . . . . . . . . . . . 6, 7

Gregory v. Ashcroft, 501 U.S. 452 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Jenness v. Fortson, 403 U.S. 431 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

McPherson v. Blacker, 146 U.S. 1 (1892) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12

New York v. United States, 505 U.S. 144 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13, 16

Printz v. United States, 521 U.S. 898 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13, 16

Reynolds v. Sims, 377 U.S. 533 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Richardson v. Ramirez, 418 U.S. 24 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Seminole Tribe v. Florida, 517 U.S. 44 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Siegel v. Lepore, No. 00-15981, 2000 WL 1781946 (11th Cir. 2000) . . . . . . . . . . . . . 5, 17

1

United States v. Lopez, 514 U.S. 549 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

United States v. Morrison, 120 S. Ct. 1740 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

STATUTES CITED

3 U.S.C. § 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

3 U.S.C. § 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Fla. Stat. 102.141(4) (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

UNITED STATES CONSTITUTION:

Art. II, § 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

First Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Tenth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-16

Eleventh Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Fourteenth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-19

OTHER AUTHORITY

Burt Neuborne, Tales of Popular Sovereignty Making the Law Safe for Democracy: A Review of `the Law of Democracy Etc.', 97 Mich. L. Rev. 1578 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

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QUESTIONS PRESENTED

1. May the term "Legislature" as used in Article II, section 1 of the United States Constitution

be construed to grant the members of a state legislature the power to provide for the selection of

Presidential electors without regard to the judicially enforceable constraints and norms imposed by a

state's constitution?

2. Can the good faith effort of the Supreme Court of Florida to construe and implement

ambiguous and incomplete provisions of the Florida election laws in order to assure that the votes of

all voters be counted in accordance with the mandate of the Florida Legislature and the Florida

Constitution be deemed an improper post-election revision of the rules governing the selection of

Presidential electors within the meaning of 3 U.S.C. § 5? If so, does 3 U.S.C. § 5 violate the Tenth

Amendment to the United States Constitution?

3. Does the effort of the Florida Legislature and the Florida Supreme Court to discern the intent

of voters in connection with so-called "undercounted" votes for President violate the Equal Protection

Clause of the Fourteenth Amendment to the United States Constitution by introducing varying

standards into the vote counting process?

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INTEREST OF AMICUS CURIAE

The Brennan Center for Justice at N.Y.U. School of Law is a non-partisan organization that

seeks to honor the memory of Justice William J. Brennan, Jr. by seeking to protect and defend the

institutions of American democracy.1 In the context of the 2000 election, the Brennan Center has

represented Republicans, most notably Senator John McCain in his successful challenge to the

provisions of the New York State Election Law that denied him a place on the New York State

Republican Presidential Primary ballot; Democrats, most notably members of the Missouri legislature

in this Court in defense of efforts to limit the size of campaign contributions; and minor party

candidates, most notably Ralph Nader in his efforts to obtain ballot status in Illinois, Idaho, and North

Carolina.

This case raises critical issues concerning the integrity of the democratic process in Florida, and

the role of courts in enforcing the guarantees of the equal right to vote, and the equal right to have

one's vote counted that are contained in the Constitution of the State of Florida, as well as the

Constitution of the United States. This brief amicus curiae is submitted in the hope that the Court will

find it helpful in analyzing the issues before it.

STATEMENT OF THE CASE

In an effort to determine the winner of the closest Presidential election in history, the State of

Florida has expended substantial resources in seeking to identify the Presidential candidate who

received the plurality of the votes in the State of Florida. The two leading candidates Vice President

As required by Rule 37 (6) of the Rules of the Supreme Court of the United States, 1

amicus Brennan Center states that the accompanying brief was not authored in whole or in part by counsel for any of the parties. No monetary contribution toward the preparation or submission of this brief was made by any person other than amicus curiae and its counsel.

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Gore and Governor Bush are in a virtual tie, creating an unaccustomed need to account accurately

for every ballot.

Pursuant to Florida law, the initial effort to determine the will of the electorate was carried out

by a machine count of ballots pursuant to the two machine voting systems used in the state optical

scanning and punch card voting. Optical scanning machines "read" marks on the ballot, and are

generally conceded to have a very low rate of failure in tabulating a voter's expressed will. Punch card

voting depends upon an older technology that allows machines to search for holes in the ballot made

by voters next to the name of the preferred candidate. Few could dispute that punch card technology

leaves room for considerable inaccuracy in tabulating a vote, either because the hole is not large

enough, because the voter's punch has not completely removed all debris, or because the ballots may

be misaligned with the punch mechanism. See Siegel v. Lepore, No. 00-15981, 2000 WL 1781946,

slip op. at 124, 127 (chart C & F) (11th Cir. 2000).

The result of the first machine count was so close that, under Florida law, a second machine

count was automatically required. See Fla. Stat. 102.141(4) (2000). The results of the second machine

count were also extraordinarily close, and triggered a high level of concern over the reliability of the

punch card machines in accurately reflecting the will of the voters. It quickly became clear that many

thousands of Florida voters in punch card counties had fallen prey to confusion in seeking to vote for

President, resulting in the disqualification of approximately 50,000 votes in areas where Vice President

Gore appeared to command large majorities. The Florida courts, while acknowledging the unfortunate

nature of such a confusion-induced failure of punch card technology, recognized that nothing could be

done to restore the lost votes. See Fladell v. Palm Beach Canvassing Bd., No. SC00-2373, 2000 WL

1763142 (Fla. 2000). Instead, attention centered on the substantial number of Presidential ballots in

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punch card counties for which no vote was registered, either because the voter elected to abstain from

voting for President, or because the punch card machine failed to tabulate the vote accurately.

Using the so-called "protest" provisions of Florida election law, Vice President Gore challenged

the result of the machine counts, arguing that a hand recount was necessary to determine whether the

punch card machines had failed to tabulate a significant number of Gore votes. See Bush v. Palm

Beach Canvassing Bd., 121 S. Ct. 471 (2000). Pursuant to Florida law, Vice President Gore sought

hand recounts in punch card counties with a high percentage of "blank" votes for President Dade,

Palm Beach, Broward, and Volusia. See Gore v. Harris, No. SC00-2431, slip op. at 28 n.16 (Fla. Dec.

8, 2000). Governor Bush, although eligible to seek hand recounts in other counties, elected not to do

so.

When it became clear that hand recounts could not be completed within the time limits

established by Florida law for certifying the election results, the parties turned to the Supreme Court

of Florida to clarify the apparent conflict between the time limits established by the Florida legislature

for election certification, and the legislative grant of a right to seek a hand recount in settings where

serious doubt exists about the accuracy of the machine tabulation. Using classic techniques of statutory

construction, the Florida Supreme Court found that the conflict between the two statutory provisions

should be resolved in favor of permitting a speedy completion of the hand recounts, unless the hand

recounts posed a risk to the timely certification of Presidential electors. See Palm Beach County

Canvassing Bd. v. Harris, Nos. SC00-2346, SCC00-2348, SC00-2349, 2000 WL 1725434 (Fla. Nov.

21, 2000), vacated and remanded, sub nom. Bush v. Palm Beach County Canvassing Bd., 121 S. Ct.

471 (2000). In reaching its decision, the Florida Court relied upon the intense concern for the franchise

embodied in the Florida Constitution as a guide to determining the will of the legislature. See, e.g.,

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2000 WL 1725434, at *6, *12, *15.

Governor Bush appealed to this Court, arguing that the action of the Florida Supreme Court

in delaying certification of the election results in order to permit completion of hand recounts: (1)

violated Article II, section 1 of the United States Constitution because the Florida Supreme Court

allegedly unduly "circumscribed" the power of the "legislature" to direct the appointment of Presidential

electors; and (2) violated 3 U.S.C. § 5 because it constituted a post-election change in the rules

governing the selection of Presidential electors. See Brief for Petitioner Bush at i, Bush v. Palm Beach

County Canvassing Bd., No. 00-836 (U.S.). This Court, unable to discern from the text of the decision

of the Supreme Court of Florida whether the Florida decision was intended to "circumscribe" the power

of the Florida legislature by imposing state constitutional constraints on the process of choosing

electors, or was intended merely to carry out the will of the Florida legislature by using the Florida

Constitution as a guide to statutory construction, vacated the Florida decision and remanded for further

proceedings. See Bush v. Palm Beach County Canvassing Bd., supra.

In the meantime, the Florida Secretary of State had certified Governor Bush as the winner,

provisionally accepting the results of complete hand recounts in Broward and Volusia Counties which

had been completed prior to the deadline set by the Florida Supreme Court, rejecting a complete hand

recount in Palm Beach County that was completed two hours after the court deadline, and never

receiving a partial hand recount in Dade County that had been carried out prior to a decision by local

officials to suspend the hand recount. Invoking an entirely different set of Florida statutory provisions

providing for judicial review of contested elections, Vice President Gore "protested" the certification

of Governor Bush as the winner of the Florida Presidential election, arguing that it violated Florida law

to ignore the results of the hand recounts in Broward, Palm Beach, and Dade Counties, and that

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election officials in Dade County had violated Florida law in suspending the hand recount in the face

of turbulent protests. See Gore v. Harris, No. SC00-2431, slip op. at 2-3 (Fla. Dec. 8, 2000).

The Supreme Court of Florida ruled that Florida statutes authorized the immediate hand recount

of all "undercounted" Presidential ballots throughout the state in order to assure that the election

actually reflects the will of the voters and not the vagaries of flawed technology. See id., slip op. at 39-

40. This appeal followed, in which Petitioner argues that the Florida Supreme Court has violated

Article II, section 1 by using the Florida Constitution to "circumscribe" the untrammeled power of the

Florida legislature to control the selection of Presidential electors. See Emergency Application of Bush

at 23-28, Bush v. Gore, No. 00949 (U.S.). Petitioner argues, as well, that providing for a judicially-

mandated hand recount alters the rules governing the selection of electors in violation of 5 U.S.C. §

3, and that conducting such a hand recount pursuant to varying standards of how to determine the

intent of the voter introduces an unconstitutional degree of non-uniformity into the process. See id.

at 29-34.

In response to Governor Bush's appeal, this Court voted 5-4 to stay the hand recounts pending

oral argument on Monday, December 11, 2000. 2 See Bush v. Gore, No. 00-949 (U.S. Dec. 9, 2000).

The grant of the stay, which renders it virtually impossible to complete the hand recounts 2

by December 12, and, therefore, virtually impossible to know whether the machine tabulations were accurate in time to correct the errors, appears to stand the principle of irreparable injury on its head. Allowing the recounts to go forward could not have caused irreparable injury, since the Court would be free to reject the results. However, barring the hand recounts pending argument makes it virtually impossible to complete them, even if the Court finds the hand recounts to have been lawful. Justice Scalia's suggestion that stopping the hand recounts was needed to shield the nation from knowledge of what a hand recount would reveal is an uncharacteristic exercise in judicial paternalism. It is, moreover, futile, since the ballots will undoubtedly be counted by news organizations and academics too late to affect the outcome of the election, but in time to call the legitimacy of the Presidency into question.

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ARGUMENT

I.

THE TERM "LEGISLATURE" AS USED I N ARTICLE II, SECTION 1 OF THE UNITE D STATE S CONSTITUTION CANNOT BE READ TO EMPOWER THE MEMBERS OF A STATE LEGISLATURE TO IGNORE TH E CONSTRAINTS AND NORMS IMPOSED UP ON THE LEGISLATURE BY THE STAT E CONSTITUTION.

In its per curiam decision vacating the decision of the Florida Supreme Court, it appeared that

certain members of this Court were reading the term "Legislature" as it is used in Article II, section

1 as providing an unrestricted grant of power to the members of a state legislature to ignore

constraints and norms imposed on a state legislature by the state's constitution. Indeed, the only

principled basis for the grant of a stay preventing the State of Florida from completing the hand

recounts ordered by the Florida Supreme Court would be a belief that the Supreme Court of Florida

was in violation of Article II, section 1 when it sought to invoke the provisions of the Florida

Constitution to resolve ambiguities in the Florida statutory scheme, and to fill lacunae in the remedial

scheme.

To the extent that the Court's reasoning is based upon such a deracinated reading of the term

"Legislature," amicus earnestly urges the Court to reconsider a reading of Article II, section 1 that

is inconsistent with the rule of law, and that cannot be viewed as a principled application of its recent

jurisprudence. Reasonable people may disagree with the decision of the Florida Supreme Court about

the meaning of Florida law. Moreover, it is impossible to ignore the importance of the ruling in

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determining the next President. But neither the stakes involved, nor the closeness of the legal issues

of state law justify the use of Article II, section 1 to "federalize" the Florida Legislature in an effort

to freeze the Florida Supreme Court out of the process of construing Florida law.

A. The Term "Legislature" When U sed In Article II, Section 1 of the Constitution Must Mean a Political Institution Functioning in Accordance w ith the Judicially Enforce able State Constitutional Powers and Constraints That Give It Life .

There is a suggestion by certain members of this Court in both the opinion granting the stay

and the per curiam opinion vacating the first decision of the Supreme Court of Florida that a state

"legislature" empowered by Article II, section 1 to "appoint" electors is licensed to act inconsistently

with the state's constitution, and that any effort by the State's highest tribunal to use the State's

constitution as a guide to construing legislative will concerning the method of selecting electors, or

as a means of filling legislative gaps concerning remedies, is a violation of the Federal Constitution.

To begin with, the Constitution does not require states even to create legislatures. But, in any event,

a political entity authorized to act inconsistently with the very state constitution that created it is

simply not the state legislature. Rather it is a group of individuals purporting to exercise legislative

power, but refusing to adhere to the basic norms that govern legislative conduct in the relevant state.

In his 1964 Holmes Lecture, Henry Hart began by asking the audience what a "single" would

be like if there were no baseball. See Burt Neuborne, Tales of Popular Sovereignty Making the Law

Safe for Democracy: A Review of `the Law of Democracy Etc.', 97 Mich. L. Rev. 1578 (1999)

(describing Hart's 1964 Holmes lecture). Professor Hart was seeking to remind us that a legal

institution may not be torn from its context and treated as a freestanding phenomenon unencumbered

by the constraints imposed by the structural matrix in which it exists. Professor Hart's question

resonates through this appeal. Paraphrasing Professor Hart, can an American state legislature be torn

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from the constitutional matrix that both created the legislature and constrains its powers? State

legislatures, like baseball singles, cannot be ripped from their institutional matrix and treated like

freestanding phenomena. The very idea of an American "legislature" carries with it the constitutional

constraints and norms that establish the legislature, define its powers, and limit the scope of its lawful

operations.

Since Marbur y v. Madison, 5 U.S. (1 Cranch) 137 (1803), it has been the hallmark of the

American experiment in democracy and the rule of law to recognize that legislatures swim in a sea

of constitutional norms that both empower and restrict legislative action. Indeed, in recent years, a

narrow majority of this Court has repeatedly rebuffed efforts by Congress to expand its operations

beyond the limits of the narrow majority's reading of Congress's proper constitutional powers. See,

e.g., United States v. Morrison, 120 S. Ct. 1740 (2000); City of Boerne v. Flores, 521 U.S. 507

(1997); United States v. Lopez, 514 U.S. 549 (1995). It is inconceivable that the Founders, having

literally invented the idea of a legislature constrained by judicially enforceable constitutional norms,

would have used Article II, Section 1 as a vehicle to create a state legislative body empowered to

disregard the very state constitution that established it.

Nothing in McPherson v. Blacker, 146 U.S. 1 (1892), suggests otherwise. In rejecting a

challenge to a state legislative decision to elect electors by congressional districts instead of at-large,

Chief Justice Fuller stressed that the judgment about the means of choosing Presidential electors was

delegated by Article II, section 1 to the legislatures of the several states, and that no particular means

of selection was mandated by the Federal Constitution. But the McPherson Court never suggested

that the state legislature was free to ignore the state constitution in exercising its Article II

responsibilities. Indeed, Chief Justice Fuller was careful to point out that state legislative action under

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Article II, section 1 must be subject to state constitutional limits. In describing the nature of the state

legislature that was to exercise Article II power, Chief Justice Fuller noted:

The state does not act by its people in their collective capacity, but through such political agencies as are duly constituted and established. The legislative power is the supreme authority, except as limited by the constitution of the state, and the sovereignty of the people is exercised through their representatives in the legislature, unless by the fundamental law power is elsewhere reposed.

146 U.S. at 24-25 (emphasis added).

B. Even If the Original Text of Article II, Section 1 Could Be Read as Authorizing State Legislative Action in Violation of a State's Constitution, Such a Reading Cannot Survive the Adoption o f the Tenth Amendment.

As amicus has argued, it is inconceivable that the Founders intended to free state legislatures

from state constitutional constraints in carrying out the responsibilities vested in them by Article II,

section 1. Even if the original text of Article II could be read as immunizing state "legislatures" from

state constitutional constraints when they regulate the selection of Presidential electors, such a

reading cannot survive the adoption of the Bill of Rights, with its explicit protection of state

sovereignty in the Tenth Amendment. It is not so much that the Tenth Amendment would overrule

Article II, Section 1, but the principles of state sovereignty embodied in the Tenth Amendment inform

us as to how Article II, section 1 should be construed.

As a narrow majority of this Court has held in recent years, the Tenth Amendment forbids the

federal government from "commandeering" an agency of the state government to perform a federal

function in ways that interfere with the sovereign prerogatives of the state. See Printz v. United

States, 521 U.S. 898 (1997); New York v. United States, 505 U.S. 144 (1992). It would be a strange

Tenth Amendment that forbade Congress from "commandeering" state sheriffs to conduct

12

background checks on hand gun purchasers, but permitted a state's legislature to be severed from its

state constitutional moorings in carrying out Article II, section 1 responsibilities.

It is, of course, true that cases like Printz and New York v. United States involve efforts by

Congress to impose duties on state agencies under general grants of constitutional authority, while

this case involves the language of the Constitution itself. But this Court has repeatedly recognized

that language in an earlier provision of the Constitution must be read in light of subsequent provisions

that may alter or even overrule the meaning of prior provisions. For example, a narrow majority of

this Court has held that the plenary grant of power to Congress under the original Commerce Clause

was limited by the enactment of the Eleventh Amendment, even in the absence of a literal collision

between the two provisions of the Constitution. See Seminole Tribe v. Florida, 517 U.S. 44 (1996).

The Court has also held that the limits imposed by the Eleventh Amendment may be overridden by

Congress when it acts pursuant to the later-enacted Fourteenth Amendment. See Fitzpatrick v.

Bitzer, 427 U.S. 445 (1976). Most dramatically, in Richardson v. Ramirez, 418 U.S. 24 (1974), this

Court construed the provisions of section 2 of the Fourteenth Amendment to limit the reach of

section 1 of the Fourteenth Amendment in order to uphold a state's disenfranchisement of ex-felons.

Just as the Eleventh Amendment altered the Commerce Clause, the Fourteenth Amendment altered

the Eleventh, and section 2 of the Fourteenth Amendment altered section 1, so the adoption of the

Tenth Amendment ended any possibility of reading Article II, section 1 as authorizing state

legislatures to act in violation of state constitutions when they carry out their Article II, section 1

responsibilities.

Thus, when the Florida Supreme Court referred to the Florida Constitution in construing

ambiguities in the Florida statutory scheme and in filling remedial gaps in that scheme, the Court was

13

not acting in violation of Article II, section 1 of the United States Constitution. By using the Florida

Constitution to help resolve state statutory ambiguities and to fill state remedial lacunae, the Florida

Supreme Court was acting precisely as the Founders hoped, and well within the sovereign prerogative

of the State of Florida. 3

II.

IF 3 U.S.C. § 5 IS READ TO PREVENT THE SUPREME COURT OF FLORIDA FROM CONSTRUING F LORIDA STATUTORY LAW TO PERMIT A HAND RECOUN T OF PRESIDENTIAL BALLOTS TO ASSURE THAT ALL VOTES ARE COUNTED, IT WOULD VIOLATE TH E TENTH AMENDMENT.

Petitioner argues that Florida's Supreme Court violated 3 U.S.C. § 5 by engaging in a post-

election alteration of the rules governing the selection of Presidential electors. Unlike the Bush

challenge to the Florida Supreme Court's initial ruling extending the certification deadline to enable

the completion of hand recounts, there is no suggestion that the Florida Court has ignored a Florida

legislative mandate. Rather, the argument is that the decision to order hand recounts of all

undercounted Presidential ballots throughout the state in accordance with Florida statutes permitting

such recounts under certain circumstances is an exercise in judicial remediation that goes beyond the

legislature's established procedures.

To the extent that this appeal is based on an argument that the Florida Supreme Court has

made a mistake concerning the meaning of Florida law, it has no place in this Court. The last word

on the meaning of Florida law must be spoken by the Supreme Court of Florida, even in cases

An extreme reading of Article II, section 1 ultimately calls into question the entire federal 3

statutory scheme regulating the choice of electors. If only the state legislature may direct the manner of appointing electors, then from where does Congress get the power to limit that authority with specific procedures referring to the state judiciary and executive as in 3 U.S.C. § 5 and 3 U.S.C. § 15?

14

involving the selection of Presidential electors. To the extent that Petitioner is arguing that the

Florida Supreme Court violated federal law by altering the rules governing the selection of

Presidential electors after the election, the objection is subject to three responses. First, the Florida

Supreme Court was scrupulous in basing its ruling on existing Florida statutory law. When, as here,

a court construes a statute, it cannot be deemed to be making new law. Rather, the court is applying

pre-existing law. Otherwise, courts could never be asked to play a role in resolving election contests

involving Presidential electors, since the loser will always claim that the adverse ruling fails to carry

out the will of the legislature, and, thus, unfairly changes the rules. Thus, arguing that the Florida

Court got its own law wrong is simply not a basis for invoking 3 U.S.C. § 5. Second, it is highly

doubtful that 3 U.S.C. § 5 is intended to be judicially enforceable. Rather, it is merely a "safe harbor"

rule governing Congressional challenges to Presidential electors. Finally, 3 U.S.C. § 5 cannot be read

to permit this Court to sit in superintendence over the Florida Court's construction of Florida law

without violating the Tenth Amendment.

Petitioner argues that 3 U.S.C. § 5 turns this Court into the Supreme Court of Florida in any

case involving the selection of Presidential electors. If the Florida Supreme Court utilizes a theory

of statutory construction, or an approach to remedies that a narrow majority of this Court believes

is wrong, Petitioners' reading of the federal statute authorizes this Court to substitute its views about

how to read Florida statutes for the views of the Florida Supreme Court. Similarly, under Petitioners'

reading of the federal statute, if this Court does not believe that judicially ordered remedies are

warranted under its reading of Florida law, this Court may simply displace the reading of the Supreme

Court of Florida. At bottom, Petitioners' position is that, in cases affecting the selection of

Presidential electors, the Supreme Court of Florida is free to interpret Florida law, as long as a

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majority of this Court agrees with the outcome. Such a construction of 3 U.S.C. § 5 cannot pass

muster under the Tenth Amendment.

Congress lacks power to place a state Supreme Court under the tutelage of this Court in

connection with the decision of state law claims, first, because Congress must respect the essential

sovereignty of state decisional processes, see New York v. United States, supra, and, second, because

Congress may not commandeer a state court system to help it choose Presidential electors. See

Printz v. United States, supra. If Congress lacks power under the Tenth Amendment to impose age

restrictions on a state judiciary, see Gregory v. Ashcroft, 501 U.S. 452, 462 (1991), surely it lacks

the power to impose the views of a majority of the Supreme Court on a state Supreme Court seeking

to construe its own state laws.

III.

THE RECOUNT PROCESS SANCTIONED B Y FLORIDA STATUTE AND EXECUTED BY TH E FLORIDA SUPREME COURT PREVENTS A VIOLATION OF THE EQUAL PROTECTION CLAUS E BY REMEDYING T HE DISPARITIES THAT RESULT FROM AN ELECTORAL SCHEME THAT PRODU CES WIDESPREAD IN TERCOUNTY VARIATION IN THE M E C H A N I C S O F V O T I N G .

Petitioners' Equal Protection claim emphasizes disparities created by a counting regime that

grants discretion to local officials to discern the "intent of the voter" from the range of potential ways

of expressing such votes with markings on ballots. If different observers could look at similar ballots

and arrive at different conclusions as to voter intent, they argue, the counting regime must fall prey

to the Fourteenth Amendment. In order to make such an argument, Petitioners ignore completely

the Equal Protection violation that would occur if differently situated counties were treated the same

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and the need for county-based discretion in discerning voter intent to address Florida's patchwork

quilt of an electoral system. Were it to become law, Petitioners' argument would also call into

question the election results themselves in Florida and any other states that decentralize authority to

conduct elections.

First, the intercounty variation in voting mechanics requires that different standards for "intent

of the voter" be used in order to avoid a violation of the Equal Protection Clause. By operating a

decentralized electoral system, the Florida Legislature and the Florida Supreme Court that

implemented its statutory scheme could not then mandate a one-size-fits-all method of recounting that

treated optical scanned ballots the same as punch-card ballots or treated counties using different types

of punch-card voting mechanisms, such as the Votomatic and Pollstar machines, as if they were the

same. To do so would guarantee even greater region-based inaccuracies in vote-counting. As

Respondents and others have emphasized repeatedly in the litigation surrounding the 2000

presidential election, see, e.g., Siegel v. Lepore, No. 00-15981, 2000 WL 1781946 (11th Cir. 2000),

the cause of the problems that the petition for a manual recount seeks to remedy namely, variation

by county of the probability that a vote was registered as a nonvote results from the different types

of ballots and machinery used in each of Florida's counties.

This case is thus quite similar to other election law cases where this Court has held that

"[s]ometimes the grossest discrimination can lie in treating things that are different as though they

were exactly alike." Jenness v. Fortson, 403 U.S. 431, 441-42 (1971); see also Buckley v. Valeo, 424

U.S. 1, 70-75 (1976) (suggesting that minor political parties must be treated differently from major

parties under campaign finance disclosure laws given the heightened possibility of intimidation and

privacy violations of minor party members); Brown v. Socialist Workers '74 Campaign Comm., 459

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U.S. 87, 95-102 (1982) (applying Buckley's rationale to law regulating campaign disbursements).

That Florida's counties are not similarly situated when it comes to the probability of a vote registering

as a nonvote cannot be disputed; it is the raison d'etre of the contest proceeding. Were the Florida

Legislature and the Florida Supreme Court that interprets its commands to fail to fashion a recount

process that was sensitive to such disparities, they would leave the intercounty variations at the stage

of voting mechanics unremedied and absolutely guarantee that voters in some counties, but not

others, would have their votes more accurately tabulated. Cf. Reynolds v. Sims, 377 U.S. 533, 557,

566 (1964) (emphasizing that the right to vote entails the right to have one's vote counted equally

with others'). Allowing local officials to tailor recount procedures to meet technical, county-specific

challenges is, indeed, the only way that Florida can reconcile its decentralized electoral scheme with

the demand of equal treatment the Fourteenth Amendment requires. A state that allows votes to be

erroneously counted as nonvotes in some counties based on the combined arbitrariness of voting

machinery and the absence of compensatory administrative and judicial remedies violates Equal

Protection and the First Amendment rights of voters to have their expressed preferences on the ballot

"heard" through the official tally. Cf. Anderson v. Celebrezze, 460 U.S. 780, 793-94 (1983).

As a practical matter, recounting standards must adapt to exigent circumstances. When a

statewide recount is ordered to be completed in a span of days, only the local officials and canvassing

boards can possibly know how the "intent of the voter" might manifest itself (and thus be ascertained)

on a given ballot in a particular election in a given jurisdiction. A more specific decree from the

Florida Supreme Court not only would have risked the charge of "legislating" in alleged

contravention of 3 U.S.C. § 5, but could invariably cause greater difficulty in execution because such

a standard would be insensitive to differences of the ballot equipment used. The decentralization of

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authority in the conduct of a recount maps perfectly onto Florida's statutory scheme, which delegates

all important decisions as to ballot creation, voting mechanics, and tallying of votes to local

canvassing boards.

Were it upheld by this Court, petitioners' argument threatens to undermine almost any

recount procedure used for statewide office in Florida or throughout the country. Recount

procedures are needed most when idiosyncracies in ballot design and voting mechanics lead to

geographically correlated errors in the initial count. Only through the process of recounting can the

election official vested with the proper authority discover precisely the nature of the error committed

that may have caused an erroneous tabulation in the original count. The recounting process

represents, in part, a process of discovery why the "intent of the voter" may not have been accurately

expressed through the ballot machinery designed to capture it. Petitioners would prefer that we not

discover the source of such biases in electoral machinery and counting processes until after the

election when an intensive reexamination of the actual ballots will have zero electoral impact.

The inevitable conclusion that follows from Petitioners' Equal Protection argument is not that

this Court should halt the recounts, but rather that the Court should throw out the results of this

election themselves because a different election effectively took place in different Florida counties.

With that unacceptable outcome taken off the table, local discretion in judging represents the only

way to approach fairness in the tabulation of different ballots that are products of different voting

mechanisms. A generalized grant of authority to focus on the intent of the voter may be an imperfect

remedy for the spotty problems caused by the State's delegation of broad electoral authority to local

officials, but it is the only way to move closer to guaranteeing that each Floridian's vote is counted

and voice is heard.

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CONCLUSION

There is a terrible irony in this appeal. This Court has spent the last 50 years seeking to

remove obstacles to voting. In case after case, this Court has championed the equal right to vote

and the equal right to have one's vote counted. Today, in this Court's climactic confrontation with

democracy, instead of acting as the nation's ultimate guarantor of democracy, a narrow majority of

this Court appears poised to prevent Florida officials from counting thousands of uncounted

Presidential ballots on which the 2000 Presidential election may turn.

Thousands of Florida voters stand on the threshold of disenfranchisement because of

mechanical error in the tabulation of punch card ballots by outdated voting machines that all concede

have an unacceptably high margin of error. Florida law as does Texas law provides the means

to prevent disenfranchisement by authorizing judicially supervised hand recounts of the, until now,

"undercounted" ballots. The Supreme Court of Florida the ultimate authority on Florida law has

spoken, and has directed that a judicially supervised hand recount take place immediately pursuant

to flexible standards designed to identify the will of the voter in the different settings caused by the

use of different types of voting machines throughout the State. The recount has begun in an orderly

manner and under careful judicial supervision, with the prospect that, whoever wins, the nation will

be reassured that the 2000 Presidential election was decided in the voting booth; not in a political

back room. For this Court, at this point, to intervene to prevent democracy from working is, with

respect, a compromise of the democratic ideals in defense of which this Court has struggled for the

past half century.

For the above-stated reasons, this Court should affirm the Florida Supreme Court's opinion.

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Respectfully submitted,

BURT NEUBORNE Counsel of Record NATHANIEL PERSILY PHILIP G. GALLAGHER BRENNAN CENTER FOR JUSTICE AT N.Y.U. SCHOOL OF LAW Attorneys for Amicus Curiae 161 Avenue of the Americas, 12th Floor New York, NY 10013 (212) 998-6730

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