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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 FOR PETITIONERS [SUMMARY OF ARGUMENT] I. The new standards, procedures, and timetables established by the Florida Supreme Court for the selection of Florida’s presidential electors are in conflict with the Florida Legislature’s detailed plan for the resolution of election disputes. The court’s new framework thus violates Article II, § 1, cl. 2 of the United States Constitution, which vests in state legislatures the exclusive authority to regulate the appointment of presidential electors. See McPherson v. Blacker, 146 U.S. 1, 27 (1892). A. The multiple ways in which the Florida Supreme Court’s decision has cast aside provisions of the statutory scheme governing elections also constitute violations of Article II, § 1 because they usurp the legislature’s exclusive authority. These judicial departures include: the elimination of the Secretary of State’s authority to maintain uniformity in application of the election laws; disregard for the statutory provisions that require manual recounts to include “all” ballots; the substitution of courts for canvassing boards in determining ballot validity; and the imposition of de novo judicial review by courts of canvassing boards’ certified judgments. B. Because state constitutions cannot alter Article II’s direct and exclusive grant of authority to legislatures, and because the Florida Legislature did not delegate to it the power to do so, the Florida Supreme Court did not have jurisdiction or authority to decide this case. The Florida Legislature has granted jurisdiction over election contests only to Florida circuit courts. C. The Florida Supreme Court’s decision repeatedly relies on its November 21 decision, which this Court had already vacated, and the consequences of that decision. This magnifies the Article II violations that the November 21 decision produced. II. The Florida Supreme Court’s revision of Florida’s statutory system for resolving election disputes also violates 3 U.S.C. § 5, which gives conclusive effect to determinations of controversies or contests concerning the appointment of electors only if those determinations are made “pursuant to” “laws enacted prior to” election day and within the federally mandated December 12 deadline. Section 5 is intended to “assure” States of “finality” in the determination of their presidential electors, and this Court has already cautioned the Florida Supreme Court “against any construction of [state law] that Congress might deem to be a change in the law.” Bush v. Palm Beach County Canvassing Board, No. 00-836, slip op. at 6. Although the court below acknowledged to the “stringent calendar controlled by federal law,” Pet. App. 16a n.11, it ignored federal law altogether by imposing multiple changes on the statutory system for resolving election disputes. Among other things, the Florida Supreme Court provided an extraordinary remedy that has no statutory basis, and its novel exposition of the contest provision essentially reads out other more specific provisions in Florida’s Election Code. III. The new set of manual recount procedures concocted by the Florida Supreme Court is arbitrary, standardless, and subjective, and will necessarily vary in application, both across different counties and within individual counties, in violation of the Equal Protection and Due Process Clauses of the Fourteenth Amendment. A. The Equal Protection Clause forbids the state from treating similarly situated voters differently based merely on where they live. See, e.g., O’Brien v. Skinner, 414 U.S. 524 (1974). Yet the various manual recounts ordered by the Florida Supreme Court will necessarily result in such differential treatment in violation of the Equal Protection Clause. The lack of uniform standards for counting “votes” means that voters who cast identical ballots in different counties will likely have their ballots counted differently. This is also true of the completed manual recounts that the Florida Supreme Court has compelled, or attempted to compel, the Secretary of State to include in the certified election results. The new multitier recount scheme ordered by the court imposes several inherently different standards that also violate equal protection guarantees. It includes all newly identified “votes” from about one-fifth of the precincts in Miami-Dade County, but only orders the recount of a fraction of ballots identified as “under-votes” from the other 80 percent of the county. And, while solicitous of under-votes, the decision does nothing to account for “over-votes” in the machine count (which are also recorded as nonvotes). Furthermore, by adopting varying levels of deference to the conclusions of different county canvassing boards, the court introduces even greater disparities in treatment. B. Due process requires the application of clear and consistent guidelines based on prospective rules. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 432 (1982). Yet the Florida Supreme Court’s new election procedures are retroactive and anything but clear and consistent. In fact, they substantially deviate from practices established before election day. Changing the legal status of ballots after the election on the basis of selective, subjective, standardless, and shifting methods of manual recounting is fundamentally unfair. See Roe v. Alabama, 43 F.3d 574, 581 (11th Cir. 1995). Under the particular circumstances imposed by the court for the manual recounts, due process is further compromised because ballots are inevitably degraded during repeated machine inspection of ballots to segregate undervotes and by the manual recounts themselves. Moreover, the prescribed procedures adopted to implement the Florida Supreme Court’s judgment deny parties any meaningful opportunity to object to subjective ballot determinations or to receive judicial review of those determinations. Finally, the Florida Supreme Court has also fundamentally changed the meaning and legal consequences of vote certification. |
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