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No. _______

IN THE SUPREME COURT OF THE UNITED STATES _____________

Robert C. TOUCHSTON, Deborah SHEPPERD and Diana L. TOUCHSTON, Petitioners, and George W. Bush, Intervenor/Appellee (11th Cir.)

v.

Michael McDERMOTT, Ann McFALL, Pat NORTHY, Theresa LePORE, Charles E. BURTON, Carol ROBERTS, Jane CARROLL, Suzanne GUNZBURGER, Robert LEE, David LEAHY, Lawrence KING, Jr., and Miriam LEHR, in their official capacities as members of the County Canvassing Boards of Volusia, Palm Beach, Broward and Miami-Dade Counties, respectively; and Katherine HARRIS, in her official capacities as Secretary of the Department of State and as a member of the Elections Canvassing Commission, and Clay ROBERTS and Bob CRAWFORD, in their official capacities as members of the Elections Canvassing Commission, Respondents and Florida Democratic Party, Intervenor/Respondent.

______________

On Petition for a Writ of Certiorari to the United States Court of Appeals for the Eleventh Circuit _____________

PETITIONERS' MOTION TO EXPEDITE CONSIDERATION OF PETITION FOR A WRIT OF CERTIORARI AND TO SET EXPEDITED SCHEDULE FOR BRIEFING AND ARGUMENT ______________

Alan P. Dye James Bopp, Jr., Counsel of Record WEBSTER, CHAMBERLAIN & BEAN Heidi K. Meyer 1747 Pennsylvania Ave., N.W. James R. Mason, III Washington, DC 20006 Richard E. Coleson Telephone: 202/785-9500 JAMES MADISON CENTER FOR FREE SPEECH Telecopier: 202/835-0243 BOPP, COLESON & BOSTROM 1 South 6th Street Terre Haute, IN 47807 Telephone: 812/232-2434 Telecopier: 812/235-3685 Counsel for Petitioners

Rule 29.6 Corporate Disclosure Statement

No parties are corporations.

PETITIONERS' MOTION TO EXPEDITE CONSIDERATION OF PETITION FOR A WRIT OF CERTIORARI AND TO SET EXPEDITED SCHEDULE FOR BRIEFING AND ARGUMENT

Petitioners Robert C. Touchston, Deborah Shepperd, and Diana L. Touchston, as

registered voters residing in Brevard County, Florida, respectfully request that this Court

expedite its consideration of the petition for a writ of certiorari in this case. Pursuant to Supreme

Court Rule 25.4, petitioners further request that, if the Court grants the petition, it expedite the

schedule for briefing and oral argument.

This is a case of the utmost national importance and urgency, involving the Constitution's

most fundamental rights as exercised in the Nation's most important election. The outcome of

the election for the Presidency of the United States may hang in the balance. Petitioners filed

this action in the Middle District of Florida on November 13, 2000, seeking declaratory and

injunctive relief under the Fourteenth Amendment of the United States Constitution and 42

U.S.C. § 1983. On November 14, the District Court held a hearing on and denied Petitioners'

motion for preliminary injunction. The same day, Petitioners filed a notice of appeal and motion

for injunction pending appeal, which the District Court denied. On December 6, 2000, the

Eleventh Circuit Court of Appeals denied Petitioners' motion for preliminary injunction based on

the plurality's contention that irreparable harm had not been demonstrated and refused to reach

the merits of Petitioners' constitutional claims. This petition for writ of certiorari is now before

this Honorable Court.

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Petitioners voted for George W. Bush in the national presidential election held on

November 7, 2000, in the county of their residence, Brevard County, Florida. In this action,

Petitioners challenge the constitutionality of the Florida Manual Recount Statute, Fla. Stat. §

102.166 (2000) (hereinafter "Manual Recount Statute"), both on its face and as applied to the

statewide election for Electors, which was held on November 7, 2000, as well as in future

statewide elections. The Manual Recount Statute allows a candidate in a statewide election, as in

this case, to request a manual recount of ballots cast in counties selected by the candidate or the

candidate's political party. Furthermore, the county canvassing boards have absolute discretion

whether to grant or deny the request for manual recount, and their decision is not subject to any

form of statutory or regulatory guidelines.

This statutory framework places at the disposal of partisan political candidates the means

to dilute and debase the votes of those voters who do not reside in the selected counties and who

did not cast their ballots for the candidate requesting the recount. The Manual Recount Statute

creates a two-tiered system that weights the votes cast in some parts of the state more heavily

than votes cast in other parts of the state. This problem is exacerbated, because under Florida

law there are no statutory or regulatory standards to assist canvassing boards in determining voter

intent. As evidenced by the current election controversy, when reviewing ballots pursuant to a

manual recount of votes, canvassing boards are free to determine voter intent according to any

subjective, arbitrary, or capricious standards and are further free to change such standards within

the course of the manual recount. Furthermore, standards used for determining voter intent upon

manual inspection of ballots may vary from county to county.

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The result of this statutory scheme is that votes in counties selected by candidates are

considered more carefully than votes in counties not selected, manufacturing an increase in votes

for the selected counties which would not have been otherwise counted. Overall votes in

counties not selected are thereby devalued, because individual votes that may be counted in such

counties, if manually inspected, will remain uncounted. Because the decision of whether to grant

manual recounts in selected counties and what constitutes manifestation of voter intent are

subject only to the indiscriminate whim of the county canvassing boards, partisan considerations

inevitably infect the democratic process in Florida. The illegal dilution of Petitioners' votes and

the votes of those similarly situated has resulted. Accordingly, the Florida Manual Recount

Statute is unconstitutional under the Equal Protection Clause of the Fourteenth Amendment to

the United States Constitution.

It is imperative that the United States Supreme Court hear Petitioners' claims as

soon as practicable. This Court's expedited consideration of the petition for writ of certiorari is

warranted in order to ensure that Petitioners' constitutional rights are not irretrievably van-

quished and to restore stability by bringing the 2000 presidential election to orderly finality in

accordance with constitutional law. Time is plainly of the essence: Florida must certify its

representatives to the Electoral College before December 18, 2000, the date on which the College

meets to select the next President and Vice President of the United States. See 3 U.S.C. § 7; see

also 3 U.S.C. § 5 (setting December 12, 2000 as the deadline for resolving controversies

regarding electors). If this matter is not resolved prior to that time, not only Petitioners but the

Nation as a whole may suffer irreparable injury. Indeed, the intense national and worldwide

attention on the recount efforts to date only foreshadows the disruption that may well follow if

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the uncertainty and unfairness that have shrouded this election are allowed to persist. The

importance of a prompt resolution of the federal constitutional questions presented by this case

cannot be overstated.

Should this Court grant the petition for certiorari on an expedited basis, an expedited

briefing schedule is necessary for the same reasons that warrant expedited consideration of the

certiorari petition. Particularly given the importance of the issues presented, it is in the best

interests of the parties, as well as the Nation, that this Court have as much time as possible to

consider the relative merits of the parties' positions and to issue its decision sufficiently in

advance of the Electoral College's selection of the next United States President and Vice-

President on December 18, 2000.

This Court has previously granted expedited treatment of cases involving substantial

questions of national importance. See, e.g., Dames & Moore v. Regan, 453 U.S. 654 (1981);

United States v. Nixon, 418 U.S. 683 (1974); Youngstown Co. v. Sawyer, 343 U.S. 579 (1952);

Ex parte Quirin, 317 U.S. 1 (1942). The importance of this case is at least equal to, if not greater

than, those landmark decisions. The Presidency, the constitutional rights of Petitioners, and the

stability of our democratic process will be in dire jeopardy if this Court does not act soon.

Accordingly, Petitioners respectfully request that Respondents should be directed to file

their response(s) to the petition by 7:00 a.m., Sunday, December 10, 2000; that petitioners submit

a Reply Brief in support of certiorari by 7:00 a.m., Monday, December 11, 2000; and that the

Court issue its ruling on the petition as soon as practicable thereafter. If certiorari is granted,

Petitioners submit that opening briefs of both parties, together with any amicus curiae briefs,

should be filed and served by 7:00 a.m., Wednesday, December 13, 2000; that reply briefs should

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be filed and served by 7:00 a.m., Thursday, December 14, 2000; and that oral argument be held

on Friday, December 15, 2000.

Respectfully submitted ,

Alan P. Dye James Bopp, Jr. WEBSTER, CHAMBERLAIN & BEAN Counsel of Record 1747 Pennsylvania Ave., N.W. Heidi K. Meyer Washington, DC 20006 James R. Mason, III Ph. 202/785-9500 Richard E. Coleson Fx. 202/835-0243 Eric C. Bohnet B. Chad Bungard Justin David Bristol J. Aaron Kirkpatrick JAMES MADISON CENTER FOR FREE SPEECH BOPP, COLESON & BOSTROM 1 South 6th Street Terre Haute, IN 47807-3510 Ph. (812) 232-2434 Fx. (812) 235-3685 Counsel for Petitioners

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