Text File

IN THE SUPREME COURT OF THE UNITED STATES ______________________________________

No. 00 A 504

GEORGE W. BUSH AND RICHARD CHENEY, Applicants,

v.

ALBERT GORE, JR., ET AL., Respondents.

______________________________________

On Emergency Application For A Stay Of Enforcement Of the Judgment Below Pending the Filing and Disposition Of A Petition For A Writ Of Certiorari To The Supreme Court of Florida ______________________________________

OPPOSITION OF RESPONDENT ALBERT GORE, JR. TO EMERGENCY MOTION FOR A STAY PENDING CERTIORARI ________________________________________

Ronald A. Klain Laurence H. Tribe Andrew J. Pincus (Counsel of Record) c/o Gore/Lieberman Recount Comm.Hauser Hall 420 430 S. Capitol St. 1575 Massachusetts Ave. Washington, DC 20003 Cambridge, MA 02138 (202) 863-8000 (617) 495-4621

Kendall Coffey David Boies Coffey Diaz & O'Naghten Boies, Schiller & Flexner 2665 South Bayshore Dr. 80 Business Park Dr., Ste. 110 Miami, FL 33133 Armonk, NY 10504 (305) 285-0800 (914) 273-9800

Jonathan S. Massey Thomas C. Goldstein 3920 Northampton St., NW Amy Howe Washington, DC 20015 4607 Asbury Pl., NW (202) 686-0457 Washington, DC 20016 (202) 237-7543

Peter J. Rubin Georgetown Univ. Law Ctr. 600 New Jersey Ave., NW Washington, DC 20001 (202) 662-9388

TABLE OF CONTENTS

Page

STATEMENT...........................................................................................................................4

ARGUMENT.............................................................................................................................7

THE APPLICATION FOR A STAY PENDING CERTIORARI SHOULD BE DENIED.........................................................................7

1. Applicants Will Not Suffer Irreparable Injury In The Absence Of A Stay ...............8

2. Any Injury Applicants Might Suffer Is Sharply Outweighed By The Irreparable Injury To Respondent Gore From Issuance Of A Stay By This Court.....................................................................................................................10

C. The Public Interest Weighs Strongly Against A Stay...................................................11

D. Applicants Cannot Establish A Likelihood Of Success On The Merits.......................12

CONCLUSION.........................................................................................................................25

i

IN THE SUPREME COURT OF THE UNITED STATES No. 00 A-504 GEORGE W. BUSH AND RICHARD CHENEY, APPLICANTS, v. ALBERT GORE, JR., ET AL., RESPONDENTS. __________________

On Emergency Application For A Stay Of Enforcement Of The Judgment Below Pending The Filing And Disposition Of A Petition For A Writ Of Certiorari To The Supreme Court Of Florida

__________________

OPPOSITION OF RESPONDENT ALBERT GORE, JR. TO EMERGENCY APPLICATION FOR A STAY PENDING CERTIORARI

__________________

Applicants' request for a stay makes a remarkable claim: for the ostensible purpose of

advancing the interests of voters, applicants urgently request this Court to stop the counting of votes.

Their surprising assertion is that a candidate for public office can be irreparably harmed by the

process of discerning and tabulating the will of the voters. This suggestion is contrary to established

law, the U.S. Constitution, and basic principles of democracy. The application should be denied

because applicants have no cognizable legal interest that will be harmed by that count, because a halt

in the vote-count process can serve only to delay ultimate resolution of the election contest, and

because their underlying legal claims lack merit.

Against this background, it is not surprising that applicants have failed to make out any of the

showings necessary to justify such extraordinary relief. First, they offer absolutely no credible claim

of irreparable harm from the mere judicial counting of previously uncounted ballots. In fact, the only

harm alleged by applicants is their fear that, if the count is halted, they somehow will not be able to

benefit from the safe harbor of 3 U.S.C. § 5 should they ultimately prevail in the contest action. But

that argument is manifestly wrong. Governor Bush can benefit from the safe harbor only if he

ultimately prevails in the contest by December 12; yet staying the vote-count can do literally nothing

to advance, and can only impede, the expeditious resolution of the contest. Applicants have thus

failed to demonstrate any irreparable injury that they will suffer from the continued counting of

ballots, and they therefore cannot meet the threshold requirement for this Court's intervention at this

stage of the proceedings.

Granting the stay, by contrast, would cause irreparable harm both to respondents and to the

public interest. Halting the count of votes until the case has been disposed of by this Court would

make it virtually impossible for the Florida courts to complete the review of ballots by December 12,

gravely handicapping Vice President Gore's prospects of benefitting from the safe harbor provided

by 3 U.S.C. § 5. As a consequence, Gov. Bush proposes a grossly inequitable asymmetry: granting

a stay of the vote count would have no bearing on his ability to benefit from the safe harbor, but

would substantially undercut Vice President Gore's hope of invoking the provision. Denying the stay

application, in contrast, would avoid those dangers while imposing no injury on applicants; it would

leave the status quo intact, giving this Court an opportunity to address the merits.1

1Of course, these considerations suggest that, if the Court believed that review of this case were appropriate, it should greatly expedite its consideration of the matter.

2

Second, the public interest weighs strongly against interfering with a state supreme court's

decision interpreting state law, because "[a]s a general rule, this Court defers to a state court's

interpretation of state statute." Bush v. Palm Beach County Canvassing Board, No. 00-836 (Dec.

4, 2000), slip op. 4. It would be extraordinary for this Court to enter preliminary relief suspending

the Florida Supreme Court's order based on that court's interpretation of state law, especially where

that court carefully explained how its holding followed from Florida statutes and prior Florida

decisions. And that is especially so because this Court has not yet determined "the extent to which

the Florida Constitution could, consistent with Art. II, § 1, cl. 2, `circumscribe the legislative

power,'" or the degree to which 3 U.S.C. § 5 imposes any limit on the state supreme court's

authority. Bush, slip op. 5-6 (citation omitted).

A stay would also undermine the public interest by imposing enormous burdens and

disruption on overworked public officials in Florida. The Florida Supreme Court noted the

extraordinary effort made by public servants in the State during the last month (see slip op. 39 n.22),

and over the last 18 hours public employees across the State have already made Herculean efforts to

complete the expeditious judicial count ordered by the Florida Supreme Court. To suddenly stay

those efforts, only to restart them if this Court were to deny review or affirm the judgment below,

would seriously disserve the public interest.

Third, applicants have no substantial likelihood of success on the merits of the issues

presented in the application; the federal claims would not warrant relief in any event. The record in

this case makes clear that the Florida Supreme Court took to heart the concerns underlying this

Court's decision in Bush v. Palm Beach County Canvassing Board, supra, and carefully avoided

reliance on any authority other than statutes enacted by the Florida Legislature. The Court likewise

3

carefully explained how its conclusions flowed from prior cases construing those statutes. And the

miscellany of other constitutional issues raised by applicants also lack substance. For all of these

reasons, the application for a stay should be denied.

STATEMENT

1. Florida's election law establishes two distinct phases for the resolution of disputes

regarding the outcome of an election. The first phase runs from election day through the certification

of the results of the election. It involves the reports of county canvassing boards to the Secretary of

State and Elections Canvassing Commission, and the resolution by the county canvassing boards of

any protests filed pursuant to Fla. Stat. § 102.166. This aspect of Florida's election law was before

this Court in Bush v. Palm Beach County Canvassing Board, supra.

The second, post-certification phase for resolution of election disputes is the election contest

action created by the Legislature in Fla. Stat. § 102.168. That law provides that "the certification of

election * * * of any person to office * * * may be contested in the circuit court by any unsuccessful

candidate for such office * * * or by any elector qualified to vote in the election related to such

candidacy." One of the grounds for contesting an election is the "rejection of a number of legal votes

sufficient to change or place in doubt the result of election." Section 102.168(3)(c). The Legislature

provided courts with broad authority both to investigate claims in contest actions and to fashion

relief:

The circuit judge to whom the contest is presented may fashion such orders as he or she deems necessary to ensure that each allegation in the complaint is investigated, examined, or checked, to prevent or correct any alleged wrong, and to provide any relief appropriate under such circumstances.

Section 102.168(8).

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2. On November 27, 2000, following the certification of Gov. Bush as the winner of the

Presidential election in Florida, respondent Gore commenced this election contest action under

Section 102.168 in Leon County Circuit Court. The complaint raised five claims:

- it challenged the rejection of 215 net legal votes for respondent Gore identified by the

Palm Beach County Canvassing Board that had been excluded from the certified vote

totals;

- it challenged the rejection of 168 net legal votes for Vice President Gore identified by

the Miami-Dade County Canvassing Board also excluded from the certified vote

totals;

- it challenged the inclusion in the certified totals of the election night returns from

Nassau County in place of the machine recount tabulation required to be used to

determine the certified totals by Fla. Stat. § 102.141;

- it argued that the court should review approximately 9000 Miami-Dade County ballots

that were not counted by the machines, because among other reasons review of

approximately 2000 similar ballots by the county canvassing board yielded nearly 400

legal votes; and

- it challenged the rejection of 3300 legal votes in Palm Beach County during the county

canvassing board's manual recount.

3. Following a two-day trial, the circuit court entered judgment for applicants and the other

defendants on all claims. Three of the circuit court's determinations were relevant to its refusal even

to examine the 9000 Miami-Dade County ballots that were introduced into evidence during the trial.

First, the court held that the ballots should not be reviewed because the Miami-Dade County

5

Canvassing Board did not abuse its discretion in terminating its manual recount pursuant to Section

102.166. Tr. of Ruling, Sauls, J. (Dec. 3, 2000) at 10. Second, the court held that respondent Gore

was required to establish a "reasonable probability that the results of the election would have been

changed" before the court could review the ballots and that respondent Gore had failed to carry that

burden. Id. at 9. And third, the court held that in an election contest action, the court may not

review only the contested ballots but rather must review all ballots cast or no ballots at all. Id. at 12.

4. The Florida Supreme Court affirmed in part and reversed in part. The court affirmed

the judgment regarding both the ballots from Nassau County and the rejection of ballots by the Palm

Beach County canvassing board. Slip op. 33, 35. The court reversed, however, as to the excluded

ballots from Palm Beach and Miami, holding that valid ballots may not be disregarded in an election

contest simply because they were not identified prior to the close of the county certification process.

Slip op. 35. Most significant for present purposes, the court also held, not only that respondent is

"entitled to a manual count of the Miami-Dade County undervote," but also that the Florida Election

Code required "a counting of the legal votes contained within the undervotes in all counties where

the undervote has not been subjected to a manual tabulation." Slip op. 2.; see id. at 28-32, 38-40.

ARGUMENT

THE APPLICATION FOR A STAY PENDING CERTIORARI SHOULD BE DENIED

The factors governing the issuance of a stay are well-settled: "(1) whether the stay applicant

has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will

be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other

parties interested in the proceeding; and (4) where the public interest lies." Hilton v. Braunskill, 481

6

U.S. 770, 776 (1987). See R. Stern, E. Gressman, S. Shapiro, & K. Geller, SUPREME COURT

PRACTICE 689-690 (7th ed. 1993). Likelihood of success on the merits in the context of an application

to stay the mandate of a lower court turns on whether there is a "reasonable probability" that four

Justices will vote to grant certiorari and a "significant possibility" that a majority of the Court will

reverse on the merits. See, e.g., Curry v. Baker, 479 U.S. 1301, 1302 (1986) (Powell, J., in

chambers) (denying application for stay in elections matter).

None of these factors weighs in favor of applicants here. To the contrary, considerations of

irreparable injury and the balance of equities weigh overwhelmingly against issuance of the stay.

A. Applicants Will Not Suffer Irreparable Injury In The Absence Of A Stay

Demonstrating irreparable injury is essential to applicants' request for a stay: "An applicant's

likelihood of success on the merits need not be considered, * * * if the applicant fails to show

irreparable injury from the denial of the stay." Ruckelshaus v. Monsanto Co., 463 U.S. 1315, 1317

(1983) (Blackmun, J., in chambers). See R. Stern, E. Gressman, S. Shapiro, & K. Geller, supra, at

690. Applicants treat this requirement, however, as a brief and rather embarrassed afterthought to

their application. See Stay App. 39-41. As we understand it and there are parts of applicants'

argument that we find confusing applicants appear to assert that they will suffer irreparable injury

unless the count of ballots is stopped immediately because (1) under 3 U.S.C. § 5, a State's

disposition of controversies regarding the selection of presidential electors is "conclusive" only if

those controversies are resolved prior to December 12; (2) if the vote-count goes forward, the current

contest may not be completed by that date; and (3) Governor Bush, if he prevails in the contest action

after December 12, will lose the presumption of the § 5 safe harbor. See Stay App. 39-40.

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With all respect, this argument is wholly insubstantial. Even if Governor Bush is correct in

all of his assertions and in his further argument that the election contest is somehow "tainted by the

Florida Supreme Court's unauthorized and unlawful rewrite of the legislative structure" (Stay App.

40), a point that we address below a stay would be completely irrelevant to his claimed injury.

Governor Bush can achieve his objective of a conclusive resolution to this dispute by December 12

in only one of two ways: (1) the count can go forward and the courts can enter a final judgment by

December 12, or (2) this Court can grant review and determine that Governor Bush is entitled to

prevail in the contest by that date. A stay of the count obviously does nothing to advance either of

those goals, and thus does literally nothing to avoid the irreparable injury of which Governor Bush

complains.

In this respect, it is important to focus on the particular action ordered by the Florida

Supreme Court and the particular relief sought by applicants. That court ordered the review of

specified ballots and the adjustment of the certified vote totals in light of that count a count the

outcome of which will not be known until it is complete. Of course, if that review does shift the vote

totals in respondent's favor, the injury to applicants will not be the least bit irreparable: "There will

be time enough for [applicants] to present his constitutional claim" to this Court "if and when" the

threatened harm comes about at the entry of final judgment in the contest proceeding. Deaver v.

United States, 483 U.S. 1301, 1303 (1987) (Rehnquist, C.J., in chambers).

It may be added that applicants do not, and could not, make any claim that the process of

counting ballots causes him injury in any cognizable way. After all, applicants retain their ability to

obtain full review of all of their constitutional claims if the count ultimately goes against them. See,

e.g., Roudebush v. Hartke, 405 U.S. 15, 26 (1971) (in case involving election for U.S. Senator,

8

reversing injunction against recount that was based on alleged irreparable injury of interfering with

Senate's ability to judge elections and returns, explaining that "[i]t would be no more than speculation

to assume that the Indiana recount procedure would impair such an independent evaluation by the

Senate"); Perez v. Edwards, 336 So. 2d 1072 (La. App. 1976) (holding that candidate could not

establish irreparable injury from casting and counting of ballots because any injury can be redressed

by subsequent holding that underlying authorizing provisions are unconstitutional); Grand Rapids

City Clerk v. Judge of Superior Court, 115 N.W.2d 112 (Mich. 1962) (refusing to issue injunction

against election proceedings that would interfere with completion on fixed schedule and where

effective relief would subsequently be available). As a consequence, they simply do not face any

cognizable injury at this point.

B. Any Injury Applicants Might Suffer Is Sharply Outweighed By The Irreparable Injury To Respondent Gore From Issuance Of A Stay By This Court

A stay thus is neither necessary nor sufficient to protect applicants against irreparable harm;

entry of a stay would have no bearing at all on Gov. Bush's ability to take advantage of the 3 U.S.C.

§ 5 safe harbor. What a stay would do, of course, is prevent Vice President Gore from ever gaining

the benefit of the Section 5 presumption. A stay would essentially ensure that if this Court either

denies review or affirms the decision below even prior to the Section 5 deadline the counting of

the ballots would push a "final determination" well beyond that date. That means that Governor Bush

could gain the benefit of Section 5 if this Court acted quickly, but that Vice President Gore could not,

even if this Court ultimately affirmed the decision below. This result would turn the purpose of a stay

application on its head: rather than "temporarily suspend[ing] judicial alteration of the status quo"

to permit the Court to exercise jurisdiction over proper federal claims, see Turner Broad. Sys. v.

9

FCC, 507 U.S. 1301, 1302 (1993) (Rehnquist, C.J., in chambers), the grant of a stay here would

gratuitously disadvantage one litigant for no permissible purpose.

If, on the other hand, the counting is allowed to proceed, both parties will have an equal

opportunity to obtain protection under Section 5, with the winner depending upon both the outcome

of the counting and the outcome of any further proceedings in this Court. Such a decision does not

impose any irreparable injury whatsoever on Governor Bush, and it fairly balances the equities among

the parties.

C. The Public Interest Weighs Strongly Against A Stay

Finally, the rights of third parties and the public interest both weigh strongly against applicants

at this juncture. The judicial review of ballots currently underway, which this application seeks to

halt, has been commenced to vindicate the constitutional right to vote of those citizens who cast votes

that might not otherwise have been properly tabulated. See, e.g., Reynolds v. Sims, 377 U.S. 533,

554 (1963) (citizens have constitutionally protected right to have their votes counted); United States

v. Classic, 313 U.S. 299, 315 (1941) ("Obviously included within the right to choose, secured by the

Constitution is the right of qualified voters within a state to cast their ballots and have them

counted."); cf. United States v. Mosley, 238 U.S. 383, 386 (1915) (it is "equally unquestionable that

the right to have one's vote counted is as open to protection * * * as the right to put a ballot in a

box"). The public also has a definite interest in the effectuation of all legal procedures in place under

Florida law to determine the rightful winner of Florida's electoral votes in the presidential election.

Moreover, the Florida Supreme Court has determined that Florida law requires judicial

tabulation of uncounted ballots. That determination is entitled to considerable deference by this

Court. Indeed, it may be disturbed only if this Court finds a basis in federal law for doing so. Yet,

10

as we explain below in more detail, the two grounds identified by this Court in Bush are manifestly

inapplicable here for two separate reasons. To begin with, this Court in Bush took pains to make

clear that it was not reaching the federal questions in that case. Surely it would not be appropriate

to upset the determination of the Florida Supreme Court by affording interim relief here with the

drastic consequences just discussed for the balance of the equities among the parties when this

Court in Bush did not even address the questions presented in that case. Slip op. 6. Second,

recognizing the potential concerns articulated by this Court in Bush, the Florida Supreme Court

exercised great care to ensure that its decision was firmly rooted both in statutes enacted by the

Legislature and in longstanding interpretations of those statutes. See pages 13-18, infra. That

counsels great restraint in interfering with the Florida Supreme Court's interpretation of Florida law.

D. Applicants Cannot Establish A Likelihood Of Success On The Merits

Because applicants can establish neither irreparable injury nor a convincing case on the

balance of harms, it is unnecessary at this time for the Court to address the likelihood of success on

the merits of applicants' claims. Beyond that, however, the federal claims they raise would not

warrant relief in any event.

1. In its opinion in Bush, this Court quoted McPherson v. Blacker, 146 U.S. 1 (1892), but

did not address "the extent to which the Florida Constitution could, consistent with Art. II, §1, cl.

2, `circumscribe the legislative power.'" Slip op. 5. Because the Court was "unclear as to the extent

to which the Florida Supreme Court saw the Florida Constitution as circumscribing the legislature's

authority under Art. II, §1, cl. 2," it "decline[d] at this time to review the federal questions asserted

to be present." Slip op. 7, 6. Instead, the Court vacated and remanded for clarification of the

grounds of the Florida Supreme Court's decision.

11

The present case is totally different from Bush. There is no indication whatsoever in the

lower court's opinion that it "saw the Florida Constitution as circumscribing the legislature's

authority" under the federal Constitution. Indeed, the Florida Supreme Court clearly recognized the

limitations imposed by Article II -- it expressly acknowledged them at the outset of its opinion. Slip

op. 5 ("These statutes established by the legislature govern our decision today"). Accordingly, there

is no federal question and no basis for reversal.

The only mention of the Florida Constitution in the Florida Supreme Court's opinion occurs

in connection with that court's assertion of jurisdiction, noting that the parties had agreed that the

Florida court's assertion of jurisdiction did not run afoul of Article II. Slip op. 1 & n.1. Although

applicants repudiated their concession twenty-four hours after it was made, the initial concession was

a sensible one: it is clear that there is no Article II issue here.

The Florida Legislature re-enacted the contest statute in 1999 against the settled background

rule that decisions of circuit courts in contest actions are subject to appellate review. See, e.g.,

Beckstrom v. Volusia County Canvassing Bd., 707 So. 2d 720 (Fla.1998); Harden v. Garrett, 483

So. 2d 409 (Fla. 1985); Bolden v. Otter, 452 So.2d 564 (Fla. 1984); McPherson v. Flynn, 397 So.

2d 665 (Fla. 1981). "It is an elementary principle of statutory construction that in determining the

effect of a later enacted statute, courts are required to assume that the Legislature passed the latter

statute with knowledge of the prior existing laws." Romero v. Shadywood Villa Homeowners Ass'n ,

657 So.2d 1193, 1195-96 (Fla.3d Dist Ct. App. 1995). It therefore is entirely logical to suppose that

in referring to the "circuit court" in Section 102.168, the legislature intended to encompass the

ordinary accouterments of appellate review of circuit court decisions. Thus, the statute itself supplies

the necessary authority for review here.

12

Moreover, even if the Florida Supreme Court's authority was thought to stem from the

Florida Constitution, not the statute, exercise of that authority still would not violate Article II. The

threshold inquiry under Article II is whether the state Constitution "circumscrib[ed] the legislature's

authority," and here the application of the Florida Constitution must be fully consistent with Article

II because there is every indication that the Legislature intended to provide appellate review in contest

actions, not eliminate it. Even applicants do not try to explain why the legislature would want to

endow a single circuit judge with final authority to decide these cases. Instead, all indications are that

the legislature intended this statute to be governed by the settled principle of Florida law that the state

supreme court has appellate jurisdiction over all matters determined in the lower courts unless the

legislature precludes such review. See, e.g., Leanard v. State, 760 So.2d 114, 118 (Fla. 2000). That,

of course, is a principle with which the Florida legislature is quite familiar.

For example, suppose that the Legislature had enacted a provision stating: "To promote

expeditious resolution of election disputes, there shall be no appellate review of the decisions of

circuit courts in contest actions." If the Florida Supreme Court had held that provision invalid under

the Florida Constitution, an issue would then arise under Article II regarding the validity of the

provision for contests of Presidential elections. But here, where the constitutional provision for

appellate review supplements the Legislature's scheme -- much like judicial rules of procedure or

evidence or principles of statutory construction -- and does not invalidate a choice made by the

Legislature, the principle set forth in McPherson is not implicated. See 146 U.S. at 39-40; see also

id. at 24-26.

2. Applicants also argue (at 23) that the decision below violates Article II for the separate

reason that the Florida Supreme Court "substituted its judgment for that of the legislature" and

13

"rewr[ote] th[e] statutory scheme" governing the appointment of presidential electors in a variety of

different respects. Again, applicants make no plausible claim that Article II has been violated.

To begin with, this contention moves well beyond the sort of Article II claim that the Court

hypothesized in Bush. There, the Court could not tell the basis for the Florida Supreme Court's

ruling and sought clarification. If the Florida Supreme Court explained that it had relied upon the

Florida Constitution, then this Court would proceed to assess the permissibility of that reliance under

Article II.

Here, the Florida Supreme Court's opinion makes clear that it did not rely upon the Florida

Constitution in construing the election law. See, e.g., slip op. 5-6. The court based its interpretation

on conventional tools of statutory construction, including relevant precedents; in other words, it

engaged in routine statutory interpretation.

Applicants' argument here is thus either that the Florida Supreme Court misrepresented the

basis for its decision that the court said it was interpreting Florida statutory law but actually was

not or that Florida's highest court erred in interpreting Florida law. Either contention is squarely

inconsistent with the "general rule" that "this Court defers to a state court's interpretation of state

law." Bush, slip op. 4. Were this Court to adopt applicants' view of Article II, it would be required

to second-guess every state law ruling by a state court to determine whether the lower court was

attempting to disguise some other basis for decision or had just gotten the state law wrong.

Finally, as this Court is well aware, the process of statutory construction is the process of

determining how to resolve issues that are not expressly addressed in the language of the statute. But

applicants takes the position that Article II bars a court from engaging in this routine process: if an

issue is not addressed in the language of the statute or in a prior decision that is precisely on point,

14

then the court has engaged in "judicial meddling" or "usurpation of [the Legislature's] constitutionally

delegated power." Nothing in Article II so limits the courts' authority, at least absent a specific

limitation enacted by the legislature, and there is no such limitation here. Indeed, the fact that these

provisions apply broadly to all elections confirms the Legislature's intent that courts exercise their

usual role.

A discussion of the particular state law issues cited by applicants confirms that the decision

below is a routine example of statutory construction that is entirely consistent with Article II, and that

applicants' claims are nothing more than an attempt to reconsider these state law issues. Significantly,

despite the division on the court below with respect to the relief granted, there was significant

consensus with respect to the questions of statutory interpretation: six of the seven justices agreed

on the statutory interpretation issues. Applicants' contentions before this Court consist principally

of generalized assertions with little in the way of support.

First, applicants claim that the Section 102.168 contest action does not apply to Presidential

elections. However, as the Florida Supreme Court explained (slip op. 6 n.7), applicant Bush, the

Florida Legislature, and the Florida Secretary of State all took the position before that court that the

contest action was available. Indeed, applicant Bush himself filed a third party complaint in the circuit

court in this case invoking Section 102.168 with respect to the Presidential election.2

Second, applicants assert (Stay App. 26) that the court below "essentially overruled" two

subsections of Section 102.166 by ordering a recount of less than all of the ballots cast. However,

2The single case cited by applicants Fladell v. Florida Elections Canvassing Comm'n was vacated by the Florida Supreme Court, which expressly held that "the Court's rulings thereon are a nullity." See Fladell v. Florida Elections Canvassing Comm'n , Nos. 00-2372 & 00-2376, slip op. 4 (Fla. Sup. Ct. Dec. 1, 2000).

15

as the Florida Supreme Court explained, the Section 102.166 protest remedy is entirely separate from

the Section 102.168 election contest remedy. Slip op. 13; see also id. at 61 (Harding and Shaw, JJ.,

dissenting) (agreeing that the two remedies are separate). And whatever the restrictions on the

county canvassing boards' authority under Section 102.166, the Legislature granted the courts

extraordinarily broad remedial authority in contest actions (see Section 102.168(8)), and it is that

authority that is the basis for the determination below.

Third, contrary to applicants' contention (at 26), the court below did not rely on the prior

opinion that this Court vacated in Bush. It merely pointed out that a canvassing board's failure to

complete the recount by the date specified in the court's opinion did not forever bar the inclusion in

the vote totals of any legal votes identified in that recount. Slip op. 34-35. Applicants' reference (at

26) to the Broward County votes is mystifying because the counting of those votes was not an issue

in the court below.

Fourth -- and somewhat inconsistently applicants (at 27) attack the Florida Supreme Court

for refusing to go beyond the statutory standard for a legal vote and hold that indented ballots may

never constitute legal votes. Here, the court's opinion simply recognizes the statutory test; it is

difficult to understand how that could possibly violate Article II.

3. Applicants also assert (at 29-34) that the Florida Supreme Court's interpretations of

Florida law constitute the application of "laws [not] enacted prior to the day fixed for the

appointment of the electors" that will deprive Florida's electors of the protection of 3 U.S.C. § 5.

Again, however, each of applicants' claims is just an attempt to revisit the Florida Supreme Court's

interpretation of Florida law.

16

First, applicants again argue (at 30-31) that the Florida Supreme Court's decision curbs the

discretion of canvassing boards. As the lower court held, however, canvassing boards exercise their

authority under the protest provision, Section 102.166; the case now before the Court involves an

entirely separate remedy, a contest action under Section 102.168. In Broward County Canvassing

Board v. Hogan, 607 So.2d 5087 (Fla. Dist. Ct. App. 1992), upon which applicants rely, the

plaintiff's claim was that the canvassing board should have conducted a recount under Section

102.166; the plaintiff did not assert a claim to relief under the specific grounds set forth in the contest

statute as respondent Gore did here under Section 102.168(3)(c).

Second, applicants again attack (at 31) the Florida court's definition of a legal vote. They

seem to argue that the Florida Supreme Court was obligated to provide a definition more specific

than the one set forth in the statute. But standards such as "intent" are well known in the law and

nothing in 3 U.S.C. § 5 imposed an obligation of greater specificity.3

4. Applicants also have not shown the requisite probability of success on the merits of their

equal protection claim. The decision of the court below does not present either of the situations that

applicants have argued would raise concerns under the Equal Protection Clause.

To begin with, in their brief below, applicants argued primarily that, "[i]n a contest of a

statewide election, a statewide recount is required by the Equal Protection Clause." See Amended

3Applicants point to the 1990 Palm Beach guidelines and other alleged definitions of legal votes. But the key question is whether those definitions are consistent with the statutory standard prescribed by the Legislature; no one would assert that simply because a standard had been promulgated by a canvassing board prior to the election it must be applied even if it violates the statute. And the relevant circuit court held that the Palm Beach standards did violate the statutory test. Florida Democratic Party v. Palm Beach County Canvassing Board, No. CL00-11078AB (Fla 15th Jud. Cir. Nov. 15, 2000).

17

Brief of Applicant Bush in Gore v. Harris, Fl. S. Ct. No. SC00-2431 at 44. The decision of the

Florida Supreme Court, of course, orders a statewide manual count of undervotes, see slip op. at 16-

20, so this equal protection claim is not presented.

Faced with the loss of that argument, applicants now argue only that "the necessarily

disparate manual recount" ordered by the Florida Supreme Court raises equal protection problems.

See Stay App. at 35. But the premise of this argument simply does not obtain here because the

Florida Court has ordered that a uniform, statewide standard, that required by the legislature, be used

in counting the undervotes. See slip op. at 23-25 (explaining that, under longstanding interpretations

of statutory law, ballots containing a "clear indication of the intent of the voter" constitute "legal

votes" that must be counted). Because all the undervotes that will be manually counted will be

counted under this same standard, there is nothing to applicants' equal protection claim.

Applicants also argue that Florida cannot treat voters in different counties differently. Stay

App. 35. If applicants mean by this to say that every county must use precisely the same methods of

tabulation as every other county in the State, they are obviously wrong. As they do in Florida,

different counties within States routinely use different equipment and different ballots for the conduct

of their elections. This plainly does not systematically "dilute" the votes of particular counties in any

way that violates the Equal Protection Clause. The only decision applicants cite in support of their

argument, O'Brien v. Skinner, 414 U.S. 524 (1974), involved incarcerated prisoners who were

denied the right to vote altogether based solely on their county of residence. But O'Brien stands only

for the unremarkable proposition that voters cannot be denied the right to vote solely because of their

county of residence.

18

Indeed, even if the standard articulated by the Florida Supreme Court were interpreted

slightly differently in different counties, permitting each county's canvassing board to conduct its

portion of a statewide manual recount of undervotes would not work any imoermissible

discrimination. It would simply facilitate the completion of the count. The need for an orderly

process of counting these votes would be sufficient to sustain against Equal Protection challenge the

reasonable procedure of permitting each county to apply the standard set out by the Florida Court.

See Anderson v. Celebrezze, 460 U.S. 780, 788 (1983) (with respect to regulation of elections,

"State's important regulatory interests are generally sufficient to justify reasonable, nondiscriminatory

restrictions").

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

will have recourse to the Leon County Circuit Court and, on appeal, to the Florida Supreme Court,

either of which will be able to eliminate any inconsistency by determining itself which ballots meet the

statutory standard.4

The decisions cited by applicants are in any event inapposite. Although applicants mention

"dilution," the cases they cite, e.g., Reynolds v. Sims, 377 U.S. 533 (1964); Roman v. Sincock, 377

U.S. 695 (1964), involve the one-person one-vote principle under which voters from different

districts cannot be given votes of unequal "weight." This issue is not presented in an at-large election

like the instant one where, although the elections are conducted by individual counties, the winner

4And, indeed, Florida statutory law provides that opportunity with regard to any ballots that a candidate believes should not have been counted during a manual recount pursuant to Fla. Stat. 102.166, see App. 36 (complaining about standards used during previous manual recounts). See Fla. Stat. 102.168 (3)(c) (permitting a candidate to contest the inclusion of "illegal votes" in the certified election results).

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is determined based on his or her statewide vote. When the State undertakes procedures to ensure

that qualified voters' votes are counted, the previously counted votes are not, of course, "diluted"

at all. And, as this Court has previously recognized, manual recount procedures are an ordinary

mechanism for ensuring the accuracy of vote-counts in close elections. See Roudebush v. Hartke,

405 U.S. 15, 25 (1972) ("A recount is an integral part of the Indiana electoral process and is within

the ambit of the broad powers delegated to the States by Art. I, § 4.").

5. Nor is there any prospect that applicants will prevail under the Due Process Clause of the

Fourteenth Amendment. Applicants appear to argue that the Florida Supreme Court's decision

violates the Due Process clause in two ways: first, because it improperly changes the law, and,

second, because it requires that the manual recounts occur in the absence of clear standards.

To the extent that applicants' due process argument rests on the claim that the Florida

Supreme Court imposed standards for counting the votes that were not in place when the votes were

cast, that argument must fail for reasons already discussed above: the law enunciated in the Florida

Supreme Court's opinion is the law as it existed on election day and long before it. In fact, this

argument is particularly flawed in the due process context. To establish the charge of a

constitutionally impermissible retroactive change in the law, applicants would have to demonstrate

not simply that the Florida Supreme Court's decision constituted a retrospective change and that the

change deprived them of a cognizable liberty or property interest, but also that the change was

"arbitrary and irrational." Eastern Enters. v. Apfel, 524 U.S. 498, 548 (1998) (Kennedy, J.,

concurring in the judgment and dissenting in part); see also id. at 537 (plurality opinion of O'Connor,

J.) (same); id. at 556 (Breyer, J., dissenting) (same). But applicants allege none of the elements of

such a claim, for understandable reasons. Not only does the Florida Supreme Court's decision not

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represent a change in the law, see supra, but it would take an exceptional showing of unfair

retroactive effect to hold a court decision (as opposed to a legislative enactment) violative of due

process: court judgments are normally retrospective in light of their application to the parties to the

case, and the Fourteenth Amendment has never been suggested to require otherwise.

Indeed, this Court's decisions reflect the strong presumption, consistent with this Court's

understanding of the nature of the judicial act, that judicial rulings (again, in contrast to legislative

enactments) must be retrospectively applied to the parties themselves. See, e.g., Harper v. Virginia

Dept. of Taxation, 509 U.S. 86, 97 (1993); see id. at 107-08 (Scalia, J., concurring). The appellate

decisions on which applicants relies for his assertion that the decision below has impermissible

retroactive effect are simply inapposite. In both Briscoe v. Kusper, 435 F.2d 1046 (7th Cir. 1970),

and Roe v. Alabama, 43 F.3d 574 (11th Cir. 1995), election officials retroactively changed an

electoral practice on which voters and candidates had relied at the time of the election.

As for applicants' claim that the Florida court's decision did not provide sufficient guidance

for its standards to pass due process muster, both the court's decision and the subsequent circuit

court actions to implement that decision belie applicants' claim. In its decision, the Florida Supreme

Court offered a clear standard one that has been in place in Florida and countless other states for

years: "the standards to be employed is that established by the Legislature in our Election Code which

is that the vote shall be counted as a `legal' vote if there is `clear indication of the intent of the

voter.'" Slip op. 40. The Florida canvassing boards and courts have long implemented that standard,

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and vote totals certified in this and many previous elections reflect countless ballots manually

recounted under this standard.5

The cases applicants cite do not suggest a contrary result. In Duncan v. Poythress, 657 F.2d

691 (1981), the Fifth Circuit agreed with the First Circuit that a due process violation could be found

where "`the election process reaches the point of patent and fundamental unfairness.'" Id. at 703

(quoting Griffin v. Burns, 570 F.2d 1065, 1077 (1st Cir. 1978)). Of note, both the First and Fifth

Circuits explicitly recognized that the circumstances giving rise to a due process violation would have

"to go well beyond the ordinary dispute over the counting and marking of ballots," and that precedent

established that federal courts would not "enter into the details of the administration of the election."

Id. The First and Fifth Circuits found a sufficiently flawed electoral process only where the state

encouraged voters to proceed by absentee ballot but then retroactively invalidated those ballots, and

where it failed entirely to hold an election required by law. Id.

Indeed, applicants' arguments that the judgment of the Florida Supreme Court violates due

process because it is "in its basic aspect * * * flawed" and permits effectively standardless recounts

are nothing more than claims that the contest and recount procedures of Florida's election code,

which mirror those that have long existed in one form or another in numerous States are on their face

unconstitutional. There is no way of rationalizing their position with the fact that the manual counting

of ballots under the identical standard has been the rule, not the exception, in this country for most

5 Indeed, under applicants' due process theory, the already certified results must be constitutionally infirm to the extent that they include any ballots manually recounted under Florida's longstanding standard.

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of the period since its founding. And their argument would have the logical consequence that the

entire election in Florida, in which many ballots have been included in the certified totals to date only

after manual counting, would have to be declared invalid.

CONCLUSION

The application for a stay should be denied.

Respectfully submitted.

Ronald A. Klain Laurence H. Tribe Andrew J. Pincus (Counsel of Record) c/o Gore/Lieberman Recount Comm.Hauser Hall 420 430 S. Capitol St. 1575 Massachusetts Ave. Washington, DC 20003 Cambridge, MA 02138 (202) 863-8000 (617) 495-4621

Kendall Coffey David Boies Coffey Diaz & O'Naghten Boies, Schiller & Flexner 2665 South Bayshore Dr. 80 Business Park Dr., Ste. 110 Miami, FL 33133 Armonk, NY 10504 (305) 285-0800 (914) 273-9800

Jonathan S. Massey Thomas C. Goldstein 3920 Northampton St., NW Amy Howe Washington, DC 20015 4607 Asbury Pl., NW (202) 686-0457 Washington, DC 20016 (202) 237-7543

Peter J. Rubin Georgetown Univ. Law Ctr. 600 New Jersey Ave., NW Washington, DC 20001 (202) 662-9388

December 9, 2000

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