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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 RESPONDENT ALBERT GORE, JR. [SUMMARY OF ARGUMENT] This Court should immediately vacate its stay and affirm the Florida Supreme Court’s judgment. I. The Florida Supreme Court’s decision is fully consistent with Article II, § 1, cl. 2. Petitioners’ primary argument to this Court – which is flatly contrary to petitioners’ position in the Florida courts – is that the mere assertion of appellate jurisdiction by the Florida Supreme Court violated Article II, § 1, cl. 2. This argument lacks merit because Article II, § 1, cl. 2 presupposes the existence of authority in each state to structure the internal processes and organization of each of its governmental branches; judicial review and interpretation of Florida’s election statutes is a necessary legislative assumption. In any event, the Florida Legislature itself drafted, proposed, and approved through bicameral passage the very provisions of its constitution that provide for appellate jurisdiction. The grant of jurisdiction contained in those provisions, as much as an ordinary Florida statute granting courts jurisdiction, thus was accomplished by the Legislature. Further, petitioners’ newfound argument is also foreclosed by this Court’s longstanding precedents. See, e.g., Smiley v. Holm, 285 U.S. 355 (1932); State ex rel. Davis v. Hildebrant, 241 U.S. 565 (1916); McPherson v. Blacker, 146 U.S. 1 (1892). In addition, petitioners’ pejorative characterizations of the Florida Supreme Court’s decision are unfounded and highly irregular. In its ruling, the Florida court did not “make law” or establish any new legal standards that conflict with legislative enactments. Rather, the court engaged in a routine exercise of statutory interpretation that construed the Florida Election Code according to the Legislature’s designated “manner” for choosing electors in a statewide election. See Fla. Sta. § 103.111. II. Petitioners’ argument under 3 U.S.C. § 5 is insubstantial. It is not at all apparent how petitioners’ current incarnation of this argument even raises a federal question: it is clear – and not now contested by petitioners – that 3 U.S.C. § 5 simply establishes a safe harbor for States that wish to make use of it. There is no dispute here about the meaning of 3 U.S.C. § 5. And there can be no doubt that the Florida Supreme Court was attentive to the terms of the statute and took into account the relevance of 3 U.S.C. § 5 in determining the intent of th e Florida Legislature. In any event, nothing in the decision below even remotely creates “new law” in a manner that runs afoul of the terms of 3 U.S.C. § 5, or that affects Florida’s entitlement to that provision’s safe harbor. The court engaged in a perfectly ordinary exercise of statutory construction, and it surely cannot be the case that the law “changes” when a jurisdiction’s highest court settles the meaning of state law. In fact, because the circuit court’s decision departed from the plain language of the Florida Election Code, under petitioners’ theory reversal of the judgment below will deprive Florida’s electors of the safe harbor of Title 3. III. Finally, the Florida Supreme Court’s judgment is fully consistent with equal protection and due process. Until now, petitioners have steadfastly taken the position before the Florida courts that, consistent with settled Florida law, a contest action is the proper means by which respondent should challenge the vote count in this election. It is inconsistent for them now to object to the very contest procedure they previously endorsed. Moreover, contest actions under Florida law relate only to the ballots which one side or the other contests – virtually every Florida election contest case involves a small fraction of the votes cast in the contested election. In any event, the Florida Supreme Court’s order to review the ballots from Miami-Dade County is consistent with established state law. The Florida Supreme Court’s order of a manual tabulation of ballots that were recorded as “no votes” is also consistent with state law. Nor does the “voter intent” standard set by Florida law violate the Equal Protection Clause. The Florida Supreme Court has ordered not the “selective” recount of which petitioners have complained but a statewide recount of all uncounted ballots in every Florida county that had not already completed a manual recount. Indeed, the Florida Supreme Court expressly granted petitioners the relief they sought with respect to a statewide recount; petitioners are in no position to complain about a point on which they prevailed. Petitioners’ allegations about the manner in which they say the manual counts have been conducted have no support in the record and are based on unsubstantiated rumors, untested “evidence,” and biased ex parte submissions. In fact, the recounts have been conducted in full public view by counting teams made up of representatives from different political parties, with the supervision of a three-member canvassing board that includes a sitting county judge and review by the Florida judiciary. The circuit court developed lengthy and detailed guidelines to ensure uniformity and accuracy. If there are anecdotal instances of isolated mistakes or inaccuracies during recounts, petitioners have ample remedies available to them under Florida law and Florida procedure to secure full redress. In the end, petitioners’ argument amounts to a charge that the system of manual recounts, expressly authorized by Florida statute and previously used in innumerable instances over the years by Florida (and States throughout the country) is unconstitutional on its face. Such an ambitious and far-reaching claim has no legal support whatsoever. The judgment should be affirmed. Because of the pressing need to complete the counting of votes, we ask that the stay be lifted immediately. |
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