No. 00-15985

United States Court of Appeals for the Eleventh Circuit

____________________

Robert C. TOUCHSTON, Deborah SHEPPERD and Diana L. TOUCHSTON,
Plaintiffs-Appellants,
and
George W. BUSH, Intervenor/Appellee,

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 capacity as members of the Elections Canvassing Commission. Defendants-Appellees,
and
the FLORIDA DEMOCRATIC PARTY, Intervenor/Appellee
______________________________

On Appeal from the United States District Court for the Middle District of Florida
______________________________

Appellants' Opening Brief

James Bopp, Jr.
Heidi K. Meyer
James R. Mason, III
Richard E. Coleson
Eric Bohnet
Justin David Bristol
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
Email: jboppjr@abcs.com Web:www.jamesmadisoncenter.org
Counsel for Plaintiffs-Appellants

Antoon, John, II, Judge (District Court below)

Blossom, L. Roland

Bohnet, Eric C.

Bopp, Coleson & Bostrom

Bopp, James, Jr.

Bristol, Justin David

Burton, Charles E.

Bush, George W.

Carroll, Jane

Cirullo, Michael

Coffey, Kendall

Coffey Diaz & O'Naughten, LLP

Crawford, Bob

Eckert, Daniel D.

Florida Democratic Party

Gibson Dunn & Crutcher LLP

Ginsberg, Robert

Ginsburg, Benjamin L.

Greenberg Traurig, P.A.

Gummey, Frank B., III

Gunzburger, Suzanne

Harris, Katherine

James Madison Center for Free Speech

King, Lawrence, Jr.

Kirkpatrick, J. Aaron

Kraftchick, Lee

Leahy, David

Lee, Robert

Lehr, Miriam

LePore, Theresa

Mason, James R., III.

McDermott, Michael

McFall, Ann

McMahon, Andrew

Meyer, Heidi K.

Murray, J.B.

Northy, Pat

Olson, Theodore B.

Patton Boggs LLP

Richard, Barry

Roberts, Clay

Roberts, Carol

Roseborough, Teresa Wynn

Seruddeus, Tamara

Shepperd, Deborah

Staver, Mathew D.

Steel, Hector & Davis

Touchston, Robert C.

Touchston, Diana L.

Tribe, Laurence H.

White & Case LLP

STATEMENT REGARDING ORAL ARGUMENT

Appellants request oral argument. This case presents critical issues regarding the equal protection of the laws and due process in the context of a state election to select Electors for President and Vice President of the United States.

CERTIFICATE OF INTERESTED PERSONS &
CORPORATE DISCLOSURE STATEMENT Page C-1 of 3

STATEMENT REGARDING ORAL ARGUMENT i

TABLE OF CONTENTS ii

TABLE OF CITATIONS vii

STATEMENT OF JURISDICTION xxiii

STATEMENT OF THE ISSUES 1

STATEMENT OF THE CASE 2

A. Course of Proceedings Below 7

B. Statement of Facts and Relevant Developments in State Courts 7

C. Standard of Review 13

SUMMARY OF ARGUMENT 14

ARGUMENT 16

I. Voters Will Succeed on the Merits 16

A. There Is No Procedural Bar to Jurisdiction. 16

B. The Manual Recount Statute Creates an Unconstitutional, Two-tiered System for Counting Votes. 18

1. Florida's Two-tiered System for Counting Votes Violates Well-settled Principles of Equal Protection in the Context of Dilution of Votes. 20

2. Other states have adopted recount procedures that are fundamentally fair to both candidates and protect the interests of all voters. 27

3. Election officials changed pre-existing rules for counting ballots after the manual recount had begun. 28

C. The Manual Recount Statute Is Systemically and Fundamentally Unfair and Results in the Dilution of Voters' Votes. 31

1. The lack of standards in the Manual Recount Statute circumscribing the granting of a manual recount contributes to the lack of due process. 34

2. The Manual Recount Statute's lack of standards for reconstructing ballots allows differing rules, the use of a vague, subjective, arbitrary and capricious "intent" tests, and the counting of ballots cast contrary to voting instructions. 35

3. The Manual Recount Statute's failure to provide for notice and an opportunity to be heard contributes to a lack of fundamental fairness and results in a dilution of Voters' votes. 41

D. This Court Should Exercise Jurisdiction. 44

II. In the Absence of Injunctive Relief, Voters' Rights Will be Irreparably Harmed. 47

III. Voters' Harm Outweighs Election Officials' Harm. 53

IV. The Public Interest Favors the Granting of Voters' Injunctive Relief.
54

CONCLUSION 56

CERTIFICATE OF TYPE SIZE AND STYLE 58

CERTIFICATE OF SERVICE 59

TABLE OF CITATIONS

Cases

Agripost, Inc. v. Miami-Dade County, 195 F.3d 1225 (11th Cir. 1999) 18

Amsco Prod. Co. v. Village of Gambell, Alaska, 480 U.S. 531 (1987) 54

Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985) 52

Baker v. Carr, 369 U.S. 186 (1962) 22

Barber v. Moody, 229 So.2d 284 (Fla. 1st Dist. Ct. App. 1969) 51

Bennett v. Yoshina, 140 F.3d 1218 (9th Cir. 1998) 37

Brinkerhoff-Faris Co. v. Hill, 281 U.S. 673 (1930) 45

*Briscoe v. Kusper, 435 F.2d 1046 (7th Cir. 1970) 46

Broward County Canvassing Board v. Hogan, 607 So. 2d 508 (Fla. App. 1992) 34

Buckley v. Valeo, 424 U.S. 1 (1976) 56

Burford v. Sun Oil Co., 319 U.S. 315 (1943) 16

Bush v. Palm Beach Canvassing Board, No. 00-836, (U.S. Nov. 24, 2000) 13

Cheffer v. McGregor, 6 F.3d 705 (11th Cir. 1993) 49

Cheney v. Anchor Glass Container Corp., 71 F.3d 848 (11th Cir. 1996) 33

City of Chicago v. Morales, 527 U.S. 41 (1999) 13

Coalition for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301 (11th Cir. 2000) 32

County of Imperial, California v. Munoz, 449 U.S. 54 (1980) 17

*Curry v. Baker, 802 F.2d 1302 (11th Cir. 1986) 19, 44

Delta Truck Brokers, Inc. v. King, 142 So.2d 273 (Fla. 1962) 34

Dickinson v. Florida, 227 So.2d 36 (Fla. 1969) 34

Elrod v. Burns, 427 U.S. 347 (1976) (First Amendment) 49

Flack v. Graham, 453 So.2d 819 (Fla. 1984) 51

Florida Democratic Party v. Palm Beach County Canvassing Board, Case No. CL 00-11078AB (Cir. Ct., 15th Jud. Cir., order Nov. 22, 2000) 10

Gamza v. Aguirre, 619 F.2d 449 (5th Cir. 1980) 44

Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985) 52

Gore v. The Miami-Dade County Canvassing Board, (Fla. 3rd DCA, opinion dated November 21, 2000) 35

Gray v. Sanders, 372 U.S. 368 (1968) 22

Gregory v. Ashcroft, 501 U.S. 452 (1991) 52

Griffin v. Burns, 570 F.2d 1065 (1st Cir. 1978) 45, 47

Hendon v. North Carolina State Board of Elections, 710 F.2d 177 (4th Cir. 1983) 37, 40

Hennings v. Grafton, 523 F.2d 861 (7th Cir. 1975) 45

Henry v. Connolly, 910 F.2d 1000 (1st Cir. 1990) 47

Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173 (1979) 48

In re Election of the U.S. Representative for the Second Congressional District, 653 A.2d 79 (Conn. 1994) 32

Kolender v. Lawson, 461 U.S. 352 (1983) 33

Lane v. Wilson, 307 U.S. 268 (1939) 33

Link v. Mercedez-Benz of N. Am., 788 F.2d 918 (3d Cir. 1986) 32

Melchior v. Todman, 296 F. Supp. 900 (D.V.I. 1968) 40

Miller v. County Commission of Boone County, West Virginia, 2000 W. Va. LEXIS 107 (W. Va. Oct. 2, 2000) 33

Mitchum v. Foster, 407 U.S. 225 (1972) 17

Monroe v. Pape, 345 U.S. 167 (1961) 52

Monterey Mechanical Co. v. Wilson, 125 F.3d 702 (9th Cir. 1997) 49

*Moore v. Ogilvie, 394 U.S. 814 (1969) 5, 14, 15, 20, 21, 55

*Murchie v. Clifford, 79 A. 901 (N.H. 1911) 36, 40

Navedo v. Acevedo, 752 F. Supp. 523 (D.P.R. 1990) 45, 47

New Orleans Public Service, Inc. v. Council of City of New Orleans, 491 U.S. 350 (1989) 17

Nixon v. Shrink Missouri Government PAC, 120 S.Ct. 897 (2000) 55, 56

Ohio v. Bureau of Employment Servs. v. Hodory, 431 U.S. 471 (1977) 16

Palm Beach County Canvassing Board v. Harris, Nos. SC00-2346, SC00-2348 & SC00-2349, 2000 Fla. LEXIS 2311 (Fla. Nov. 21, 2000) 12

Panama City Med. Diagnostic v. Williams, 13 F.3d 1541 (11th Cir. 1994) 13

Phoenix v. Kolodziejski, 399 U.S. 204 (1969) 44

Porter v. Bainbridge, 405 F. Supp. 83 (D. Ind. 1975) 46

Railroad Commn. of Texas v. Pullman, 312 U.S. 496 (1941) 16

*Reynolds v. Sims, 377 U.S. 533 (1964) 5, 20, 44

Roberts v. Wamser, 883 F.2d 617 (8th Cir. 1989) 43

*Roe v. Alabama, 43 F.3d 574 (11th Cir. 1995) 17, 20, 31, 48, 55

*Roe v. Alabama, 68 F.3d 404 (11th Cir. 1995) 6, 14, 28, 31

Roudebush v. Hartke, 405 U.S. 15 (1972) 27

Scheer v. City of Miami, 15 F. Supp.2d 1338 (S.D. Fla. 1998) 31

Siegel v. LePore, No. 00-837 (U.S. Nov. 24, 2000) 13

State of Florida ex rel Barancik v. Gates, 134 So. 2d 497 (Fla. 1961) 42

Statharos v. New York City Taxi And Limousine Commission, 198 F.3d 317 (2nd Cir. 1999) 49

SunAmerica Corp. v. Sun Life Assurance Co., 77 F.3d 1325 (11th Cir. 1996) 14

Taylor v. Beckham, 178 U.S. 548 (1900) 52

Tefel v. Reno, 180 F.3d 1286 (11th Cir. 1999) 16

United States ex rel Trice v. Westinghouse Hanford Co., 2000 U.S. Dist. LEXIS 8838 (E.D. Wash., March 1, 2000) 32

United States v. Classic, 313 U.S. 299 (1941) 32

United States v. Kelly, 888 F.2d 732 (11th Cir. 1989) 13

United States v. Lanier, 520 U.S. 259 (1997) 6

United States v. Mississippi Valley Generating Co., 364 U.S. 520 (1961) 56

United States v. Mosely, 238 U.S. 383 (1915) 6, 23, 32

United States v. Saylor, 322 U.S. 385 (1944) 6, 22

Wesberry v. Sanders, 376 U.S. 1 (1964) 5, 20, 49

Yick Wo v. Hopkins, 118 U.S. 356 (1885) 44

Younger v. Harris, 401 U.S. 37 (1971) 16

Statutes

3 U.S.C. § 5 12

3 U.S.C. § 7 49

10 Ill. Comp. Stat. Ann. 5/23-23 27

21-A Me. Rev. Stat. Ann. tit. 21-A § 737-A (1999) 28

28 U.S.C. § 1292(a)(1) xxiii

28 U.S.C. § 1331 xxiii

28 U.S.C. § 1343(a) xxiii

28 U.S.C.A. § 2283 17

42 U.S.C. § 1983 xxiii

Fla. Stat. § 102.111(1) 12, 13

Fla. Stat. § 102.141 7

Fla. Stat. § 102.155. 13

Fla. Stat. § 102.166 (the "Manual Recount Statute") passim

Fla. Stat. § 102.166(4)(b) 42

Fla. Stat. § 102.166(4)(c) 34, 41

Fla. Stat. § 102.166(4)(d) 42

Fla. Stat. § 102.166(7)(b) 4, 36

Fla. Stat. § 102.168 50

Fla. Stat. § 102.168(7) 50

Fla. Stat. § 103.011 18, 57

Ind. Code § 3-12-1-9.5 41

Ind. Code § 3-12-6-4 27

Ind. Code § 3-12-6-6 27

Md. Code Ann., Elections § 12-102 (1999) 28

Mich. Admin. Code R. § 168.783 41

Mo. Rev. Stat. § 115.537 (1999) 28

N.J. Stat. Ann. § 19:28-4 (2000) 28

Nev. Admin. Code § 293.250(7) 41

Tex. Elec. Code § 127.130 41

Other Authorities

Fed. R. Evid. 801(d)(2) 32

A. Anastasi, Psychological Testing (4th ed. 1976) 37, 38

B.B. Schaab, The influence of time pressure and information load on rule-biased decisionmaking performance, 58 (5-B) Dissertation Abstracts International: Section B: The Sciences and Engineering 2713 (1997) 38

Carl Limbacher, As Gore Tally Lags, Broward Loosens Recount Rules (visited Nov. 22, 2000) <http://www.newsmax.com/showinside.shtml?a= 2000/11/19/135427> 31

Fed. R. Evid. 201(b) 41

Fed. R. Evid. 803(8) 32

Fed. R. Evid. 901(b)(7) 32

Ft. Lauderdale Sun Sentinel, Problem Punches (visited November 26, 2000) <http://www.sun-sentinel.com/images/chad.jpg> 11

H.N. Garb, C.M. Florio & W.M. Grove, The validity of the Rorschach and the Minnesota Multiphasic Personality Inventory: Results from meta-analysis, 9 Psychological Science (1998) 38

Influence of time pressure and information load on rule-biased decisionmaking performance, 58 (5-B) Dissertation Abstracts International: Section B: The Sciences and Engineering 2713 (1997) 38

Karin Meadows, Officials Begin Florida Hand Count, Washington Post, Nov. 11, 2000 (visited Nov. 22, 2000) <http://www.washingtonpost.com/wp-srv/aponline/20001111/aponline203013_000.htm> 30

*Letter from Robert Butterworth to Charles Burton ( Nov. 14, 2000) 3, 20, 49

Marcy Gordon, Palm Beach Counters Return To Work, Washington Post, Nov. 11, 2000 (visited Nov. 22, 2000) <http://www.washingtonpost.com/ wp- srv  /aponline/20001111/aponline203013_000.htm> 30

Miami Herald, Florida (visited November 11, 2000) <http://www.herald.com/content/archive/news/elect2000/decision/ap_counties.htm> 9

Palm Beach County Checks Ballot Chad, Washington Post, Nov. 11, 2000 (visited Nov. 22, 2000) <http://www.washingtonpost.com/wp-srv/aponline/20001111/aponline200511_000.htm> 29

Paul J. Chara, Jr., Some concluding thought on the debate about the Vividness of Visual Imagery Questionnaire, 75 Perceptual and Motor Skills 947 (1992) 38

Steve Harrison, Canvassers in home stretch (visited November 25, 2000)<http:www.herald.com/content/archive/news/elect2000/decision/037886.htm>
10

Terry Spencer, Broward Decides on Full Hand Recount, Washington Post, Nov. 15, 2000 (visited Nov. 22, 2000) <http://www.washingtonpost.com/wp-srv/aponline/20001115/aponline163359_000.htm> 30

*U.S. Const. amend. XIV, § 1 passim

U.S. Const. art. I, § 4, cl. 1 44

U.S. Const. art. II, § 1 18

U.S. Const. art. II, § 1, cl. 2 13

W.T. Hoyt, Rater bias in psychological research: When is it a problem and what can we do about it?, 5 Psychological Methods 64 (2000) 38

Appellants ("Voters") filed this action on November 13, 2000, seeking a declaration that the manual recount provisions of Fla. Stat. § 102.166 are unconstitutional under the Equal Protection Clause of the Fourteenth Amendment because they create a two-tiered system of counting votes that dilutes and debases their votes for President of the United States. On November 14, 2000, the District court, after hearing, denied Voters' motion for a preliminary injunction. Voters filed a notice of appeal on November 14, 2000.

The case was brought under Section 1 of the Civil Rights Act of 1871, 178 Stat. 13, 42 U.S.C. § 1983, on the grounds that provisions of Florida's election laws violated Voter's rights under the Fourteenth Amendment to the United States Constitution. The jurisdiction of the District Court was based on 28 U.S.C. §§ 1331 and 1343(a). The jurisdiction of this Court is based on 28 U.S.C. § 1292(a)(1).

STATEMENT OF THE ISSUES

1. Whether the manual recount provisions of Fla. Stat. § 102.166 ("the Manual Recount Statute") create an unconstitutional two-tiered system for counting votes by allowing a candidate to seek, and by allowing a county canvassing board the absolute discretion to grant, manual recounts to reconstruct "undervotes" only in heavily populated counties where the candidate received a disproportionate share of the vote, thus diluting and debasing the vote of those who voted in counties that favored the candidate's opponent where no manual recount would be conducted.

2. Whether the Manual Recount Statute is unconstitutional because it (a) lacks standards circumscribing a county's power to grant or deny a manual recount; (b) because it lacks standards delineating when to recognize a valid ballot during a manual recount, which results in different rules being applied within a county, and among counties, allowing ballots to be counted that have been cast contrary to voting instructions issued by the county; and (c) it fails to provide for notice and an opportunity for a non-requesting candidate to be heard before manual recounts are conducted and before a manual recount is expanded from a few precincts to include the entire county.

STATEMENT OF THE CASE

Plaintiffs-Appellants ("Voters") appealed from denial of their motion for preliminary injunction against Appellees ("Election Officials"), moved to expedite this case, and moved to consider the purely legal issues on the merits. The Voters, Robert C. Touchston, Deborah Shepperd and Diana L. Touchston, are registered voters in Brevard County, Florida, who cast their ballot for George W. Bush on November 7, 2000. The County Election Officials are members of the canvassing boards of Volusia, Palm Beach, Broward, and Miami-Dade counties, where Florida Democratic Party ("Party") requested manual recounts. State Election Officials are Katherine Harris, in her capacity as Florida Secretary of State and a member of the Elections Canvassing Commission, and other members of the Election Canvassing Commission. All Defendants are sued in their official capacities. The injunction sought would bar Election Officials from conducting, certifying, and accepting the results of manual recounts, under the challenged statute, of the votes for Electors for the office of President of the United States.

This action challenges the constitutionality of the Manual Recount Statute both on its face, and as applied to the statewide election for Electors, which was held on November 7, 2000, and to 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. 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. Accordingly, the Manual Recount Statute is unconstitutional under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

As the Attorney General for the State of Florida has explained:

A two-tiered system would have the effect of treating voters differently, depending upon what county they voted in. A voter in a county where a manual recount was conducted would benefit from having a better chance of having his or her vote actually counted than a voter in a county where a hand count was halted.

Letter from Robert Butterworth to Charles Burton ( Nov. 14, 2000) ("Butterworth Letter") (Attachment 2 to Emergency Motion for Injunction Pending Appeal ("Emergency Motion")) (emphasis added).

The punch card ballot system, used in the Defendant counties, requires voters to punch a hole through the ballot card with a stylus. Voting Instructions in Palm Beach County state that, in order "[t]o vote, [a voter is to] hold the voting instrument straight up. Punch straight down through the ballot card for the candidate of your choice."⁽¹⁾ Furthermore, the voter is instructed that "AFTER VOTING, CHECK YOUR BALLOT CARD TO BE SURE YOUR VOTING SELECTIONS ARE CLEARLY AND CLEANLY PUNCHED AND THERE ARE NO CHIPS LEFT HANGING ON THE BACK OF THE CARD." (Capitalization in original).
Attachment 3 to Emergency Motion.

If the vote is properly cast by punching through the ballot, the tabulating machine will count the vote. If the voter failed to complete her vote by punching thRough the ballot for a particular office, the tabulating machine will not count the ballot for that office, i.e., an "undervote." During a manual recount, county canvassing boards are authorized by the Manual Recount Statute to attempt "to determine the voter's intent in casting the ballot," Fla. Stat. § 102.166(7)(b), by, in effect, "reconstructing" undervoted ballots, without any statutory standards, adding votes to the total arrived at by machine tabulation. In a close, statewide election, the Manual Recount Statute, therefore, provides a strong incentive for a candidate to request a manual recount in heavily populated counties where the machine tabulated vote favors the candidate because it invariably results in the addition of reconstructed undervotes in numbers that disproportionately favor the requesting candidate.

Furthermore, the tabulating machine will not count ballots when more than one hole is punched for the same office, i.e., an "overvote." Manual recounts will also not count an overvote.⁽²⁾

This statutory scheme violates the Equal Protection Clause by creating a two-tiered system for counting votes based on county of residence, contrary to the Supreme Court's holding in Moore v. Ogilvie, 394 U.S. 814 (1969). This allows a candidate to dilute votes in the rest of the state by, in effect, "stuffing" the statewide ballot box. See Wesberry v. Sanders, 376 U.S. 1, 17 (1964) ("Not only can this right to vote not be denied outright, it cannot, consistently with Article 1, be destroyed by alteration of ballots, or diluted by stuffing of the ballot box."). The concept of equal protection, however, requires "the uniform treatment of persons standing in the same relation to the governmental action questioned or challenged." Reynolds v. Sims, 377 U.S. 533, 565 (1964). Thus, voters have the right to have their legitimate votes counted on an equal footing with those of voters in other counties. See United States v. Lanier, 520 U.S. 259, 270 (1997); United States v. Saylor, 322 U.S. 385 (1944); United States v. Mosely, 238 U.S. 383 (1915).

The Manual Recount Statute also violates due process, which dilutes Voters' votes. First, the Manual Recount Statute permits a candidate, in this case Vice President Gore, to choose in which counties to request manual recounts and thereby gain a disproportionate number of undervotes, manipulating the vote total.

Second, the Manual Recount Statute lacks standards circumscribing a county's power to grant or deny a manual recount, permitting counties to grant requests based on a partisan desire to mine for votes.

Third, the Manual Recount Statute's lack of standards for determining "the voter's intent" results in counties arbitrarily and capriciously adopting different rules, on an ad hoc and ex post facto basis, to be applied at different times within a county, and among counties, allows a vague subjective intent test to be used, and permits votes to be counted that have been cast contrary to voting instructions issued by the county, contrary to this Court's holding in Roe v. Alabama, 68 F.3d 404 (11th Cir. 1995). Unlike Florida, several states have adopted statutory standards for determining "voter intent."

Finally, the Manual Recount Statute fails to provide for notice and opportunity for a non-requesting candidate to be heard before the county canvassing board makes its decision whether to grant or deny a request for a manual recount and fails to provide for notice or opportunity to be heard before it sua sponte decides to expand the manual recount to encompass additional precincts. Unlike Florida, other states have adopted recount procedures that ensure that both candidates are involved and that give both candidates the means to ensure that the recount is fundamentally fair.

A. Course of Proceedings Below

Voters 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 Voters' motion for preliminary injunction. The same day, Voters filed a notice of appeal and motion for injunction pending appeal, which the District Court denied.

B. Statement of Facts and Relevant Developments in State Courts⁽³⁾

Fla. Stat. § 102.141 provides that, on election night, a county canvassing board shall canvass the returns and certify them to the Department of State. (Verified Complaint ("VC") ¶ 10). However, if a candidate was defeated by one-half a percent or less of the votes cast, an automatic machine recount is held. (VC ¶ 11). In the November 7 election, vote counts for the Electors for Vice President Gore were defeated by less than one-half a percent and the Elections Canvassing Commission ordered a recount of that vote. (VC ¶ 12). The recount of the votes in all 67 counties in Florida again yielded a plurality vote for Governor George W. Bush. Exhibit A to Harris Response to Voters' Motion for Injunction Pending Appeal ("Harris Response").

The Manual Recount Statute provides that, before the county canvassing board certifies the results or within 72 hours after midnight of election day, whichever occurs later, a candidate or political party may request a manual recount of votes in certain precincts in the county, which can result in a third count of the affected precincts. (VC ¶ 14).

Pursuant to the Manual Recount Statute, the Party requested a manual recount in certain precincts in Volusia, Palm Beach, Broward and Miami-Dade Counties. Governor Bush requested no manual recounts. Party Appendix, Tabs 1-6. As a result of the Party's requests, manual recounts were ordered in selected precincts in all four counties. Some or all of these manual recounts were authorized after the time period under the Manual Recount Statute had expired for Governor Bush to request a manual recount of votes. (VC ¶ 19). The registered voters in all four counties are predominantly registered Democrats and the voters in these counties voted overwhelmingly for Vice President Gore on election day. Harris Response, Exhibit A.

Furthermore, these four counties are among the most heavily populated counties in the State of Florida. (VC ¶ 21). Any manual recount in these four counties could be expected to produce a greater number of additional votes cast for Vice President Gore than for Governor Bush, particularly when recounted using the vague, subjective, arbitrary and capricious standards described below. These manual recounts have yielded a net increase in votes for Vice President Gore, VC ¶ 23, in large part because the county canvassing boards are counting "votes" where the voter did not punch through the ballot card, VC at ¶22, contrary to the instructions to voters, Attachment 3 to Emergency Motion, and contrary to the standards for determining voter "intent" used in previous elections. Palm Beach County Policy, Party Appendix, Tab 8, Exhibit A.

Voters in Brevard County are predominately registered Republicans and voted overwhelmingly for Governor Bush. Harris Response, Exhibit A. Any manual recount in Brevard County would be expected to produce a net addition of votes for Governor Bush, which actually occurred in Republican-dominated Seminole County which did a manual recount of votes as part of the first recount. The Miami Herald, Florida (visited November 11, 2000) <http://www.herald.com/content/archive/news/elect2000/decision/ap_counties.htm> (AP county-by-county vote total changes from election night to first recount). Because a properly conducted manual recount, using proper standards, can ensure that validly cast ballots are counted, that are occasionally mistakenly not counted by automated tabulation, the absence of a manual recount in Brevard County and throughout Florida means that some validly cast ballots by Voters and others similarly situated have not been counted. (VC ¶ 24).

During the Palm Beach manual recount, the canvassing board authorized the reconstruction of ballots not counted by automated tabulation. At the beginning of the manual count, the board authorized counting ballots when only one of the four corners of the chad was detached. Later, the board used the "sunlight" test - if light came through the indentation, the ballot would be counted. The board rejected the "sunlight" test in favor of returning to the "one corner" test. (VC ¶ 27). The Party then obtained a court order requiring the consideration of ballots which only had a dimple on the chad. Florida Democratic Party v. Palm Beach County Canvassing Board, Case No. CL 00-11078AB (Cir. Ct., 15th Jud. Cir., order Nov. 22, 2000) ("Palm Beach Order, November 22, 2000"). However, Palm Beach was only considering "dimples" if there was "a consistent pattern of dimpling." Steve Harrison, Canvassers in home stretch (visited November 25, 2000) <http:www.herald.com/content/archive/news/elect2000/decision/037886.htm>. In Broward County, however, only one dimple would do. Id. However, any of these tests results are contrary to voting instructions that require that "voting selections are clearly and cleanly punched." Party Appendix, Tab 8, Exhibit A.

However, when a voter does not complete the casting of his ballot by punching through the ballot, e.g., by only dislodging one or two corners or by only creating a dimple,⁽⁴⁾ there are two equally valid inferences of the intent of the voter: (1) the voter was so frail that he was not able to punch through the ballot, even though the voter intended to do so, or (2) the voter had second thoughts or reconsidered his vote, after putting the stylus in the hole, or mistakenly put the stylus in the wrong hole and then withdrew the stylus before punching through the ballot ("pregnant chad"), so that the voter never intended to vote for the candidate at all. It is arbitrary and capricious for the county Election Officials to adopt the first inference over the second. (VC ¶ 30). As a result, the tests employed by the county Election Officials to reconstruct ballots are vague, subjective, arbitrary and capricious. (VC ¶ 30).

Counties were required to forward certification of voting results to the Department of State by 5:00 p.m. on Tuesday, November 14, 2000, which included the results of the first machine recount and Seminole County's manual recount. Fla. Stat. § 102.111(1). On November 21, the Supreme Court of Florida construed Florida election laws as (1) allowing manual recounts to continue beyond statutory deadlines under the Manual Recount Statute and (2) requiring the Secretary of State to include results from the manual recounts in statewide results; and the Court exercised its equity power to permit counties to file manual recount results with the Secretary until November 26, 5 p.m. (November 27, 9 a.m., if Secretary's office closed before). Palm Beach County Canvassing Board v. Harris, Nos. SC00-2346, SC00-2348 & SC00-2349, 2000 Fla. LEXIS 2311, at *42-45 (Fla. Nov. 21, 2000).

The Florida Supreme Court decision was accepted for review by the United States Supreme Court on November 24, limited to the issues of (1) whether post-election removal of the Secretary's discretion and creation of standards to determine controversies violate either due process or 3 U.S.C. § 5 (use of "laws enacted prior to" election day) and (2) whether judicially-created standards irreconcilable with Article II, Section 1, clause 2 of the U.S. Constitution which requires the Legislature to set standards. Oral argument is set for Friday, December 1. Bush v. Palm Beach Canvassing Board, No. 00-836, (U.S. Nov. 24, 2000) (order granting certiorari). The Supreme Court, however, declined to accept Siegel v. LePore, which is No. 00-15981 in this Court. Siegel v. LePore, No. 00-837 (U.S. Nov. 24, 2000) (order denying certiorari without prejudice).

Once all these returns are in, the Elections Canvassing Commission is to certify the returns and declare who was elected. Fla. Stat. § 102.111(1). The Department of State is then to give certificates of election, constituting prima facie evidence of a candidate's election. Fla. Stat. § 102.155. The Electors will vote for President and Vice President on December 18, 2000. 3 U.S.C. § 7 (2000).

C. Standard of Review

This Court reviews denials of preliminary injunction for abuse of discretion.⁽⁵⁾ Panama City Med. Diagnostic v. Williams, 13 F.3d 1541, 1545 (11th Cir. 1994). The Court must reverse the district court's denial because, in this case, "the district court has made a 'clear error of judgment,' United States v. Kelly, 888 F.2d 732, 745 (11th Cir. 1989), or has applied an incorrect legal standard, Cheney v. Anchor Glass Container Corp., 71 F.3d 848, 849 n. 2 (11th Cir. 1996)." SunAmerica Corp. v. Sun Life Assurance Co., 77 F.3d 1325, 1333 (11th Cir. 1996).

The district court applied an incorrect legal standard by deferring to an inherently unconstitutional state procedure for manual recounts, which creates a two-tiered system for counting votes depending on where the voter lives, contrary to the controlling Supreme Court authority of Moore v. Ogilvie, 394 U.S. 814 (1969). Also, the district court failed to acknowledge that the lack of standards in the statute allowed the county canvassing boards to adopt ever-shifting standards for counting votes, contrary to this Court's holding in Roe III. Because of this, the selective manual recounts have continued, and the votes of Voters and others similarly situated throughout Florida are being irretrievably diluted, causing irreparable harm. Furthermore, the district court made a clear error in judgment by failing to advert to evidence that the manual recount procedures being followed by Election Officials are arbitrary and capricious, resulting in the dilution of Voters' votes.

SUMMARY OF ARGUMENT

By allowing partisan political candidates and political parties in statewide elections to request manual recounts in heavily populated counties where the candidate received a disproportionate share of the votes, the Manual Recount Statute creates an unconstitutional two-tiered system for counting votes depending on where the voter lives. Allowing selectively conducted manual recounts to achieve a partisan political advantage in the selection of Presidential Electors unconstitutionally dilutes the votes of Voters and hundreds of thousands of other voters who do not live in the selected counties and violates the Equal Protection Clause, contrary to the Supreme Court's holding in Moore v. Ogilvie, 394 U.S. 814 (1969).

Florida's procedures for deciding when to conduct a manual recount and how those recounts should be conducted also lack sufficient standards and fail to protect Voters' due process rights, further diluting Voters' votes. In particular, the statute fails to provide any standards for determining "voter intent," during a manual recount, resulting in the use of standards that are vague, subjective, arbitrary and capricious and that are contrary to the instructions given voters on how to cast a valid vote and to the practice of counting votes in previous elections.

Voters, however, do not claim that manual recounts are always invalid or that it is always improper to seek to determine a voter's intent by visual examination of a ballot. The heart of the problem here is that the statutory process for determining what counties are manually recounted is fundamentally unfair and leads to a partisan result. Other states have adopted manual recount procedures that are fair and balanced. Furthermore, states have adopted statutory standards for determining voter intent during visual examination of the ballot. The failure of the State of Florida to do like-wise is its fatal flaw.

ARGUMENT

Voters have asked the Court to decide this case on the merits. However, Voters do satisfy the Eleventh Circuit's four factors to obtain a preliminary injunction: "(1) a substantial likelihood of success on the merits; (2) a threat of irreparable injury; (3) that [their] own injury would outweigh the injury to the nonmovant; and (4) that the injunction would not disserve the public interest." Tefel v. Reno, 180 F.3d 1286, 1295 (11th Cir. 1999).

I. Voters Will Succeed on the Merits.

A. There Is No Procedural Bar to Jurisdiction.

This case presents no procedural bar to the exercise of federal jurisdiction. Because the Florida Supreme Court has definitively construed - or perhaps rewritten - Florida laws regarding manual recounts, abstention is not warranted under either Burford v. Sun Oil Co., 319 U.S. 315 (1943) or Railroad Commn. of Texas v. Pullman, 312 U.S. 496 (1941). Furthermore, abstention under Younger v. Harris, 401 U.S. 37 (1971) is not suggested in this case because Election Officials have submitted to federal court jurisdiction, waiving Younger abstention. See Ohio v. Bureau of Employment Servs. v. Hodory, 431 U.S. 471, 480 (1977). Furthermore, the manual recounts themselves are not judicial in nature. "While we have expanded Younger beyond criminal proceedings, and even beyond proceedings in courts, we have never extended it to proceedings that are not 'judicial in nature.'" New Orleans Public Service, Inc. v. Council of City of New Orleans, 491 U.S. 350 (1989).

Furthermore, the Anti-Injunction Act, 28 U.S.C.A. § 2283, does not prohibit this Court from enjoining Election Officials for two reasons. First, the Act does not bar a federal injunction when the parties requesting it are "strangers to the state court proceeding" and thus cannot be bound "as though [they were parties] to the litigation in the state court." County of Imperial, California v. Munoz, 449 U.S. 54, 59-60 (1980). Second, this case falls within the exception to the Act for injunctions "expressly authorized by Act of Congress," 28 U.S.C.S. § 2283, because it was brought under 42 U.S.C. § 1983. Mitchum v. Foster, 407 U.S. 225, 242-43 (1972).

Claim preclusion does not apply to this case under the Full Faith and Credit Statute, 28 U.S.C. § 1738, because Voters were not parties to the suit in the Florida Supreme Court. For the same reason, the Rooker-Feldman doctrine does not apply to this case. Roe v. Alabama, 43 F.3d 574, 579-80 (11th Cir. 1995) ("Roe I"). Additionally, Rooker-Feldman does not apply because the Supreme Court of Florida specifically did not address any federal constitutional claims. Slip op. at 10, n. 10. See Agripost, Inc. v. Miami-Dade County, 195 F.3d 1225, 1228, n.7 (11th Cir. 1999) (Rooker-Feldman doctrine only applies when a final state court judgment "unambiguously disposes of a federal claim."). Thus, there is no procedural bar to this Court exercising its jurisdiction and reaching Voters' claims.

B. The Manual Recount Statute Creates an Unconstitutional, Two-tiered System for Counting Votes.

Article II, section 1 of the United States Constitution charges the state legislatures with establishing the manner of appointing Electors for the Office of President and Vice President of the United States. In Florida, the candidates for these offices are placed on the ballot throughout the state in a manner prescribed by statute. The candidate receiving the most votes statewide will be certified the winner of the State's Electors. Fla. Stat. § 103.011. According to the Manual Recount Statute, "any candidate whose name appeared on the ballot . . . or any political party whose candidates' names appear on the ballot may file a written request with the county canvassing board for a manual recount." (Emphasis added.).

Thus, although a candidate must win a majority of votes statewide to win Florida's Electors, the candidate may request a manual recount of ballots only in those counties where the candidate stands to gain a partisan political advantage. While this procedure may be lawful according to Florida statutes, it denies equal protection of the laws to voters in counties outside of those where manual recounts are requested and conducted, and is, thus, contrary to the guarantees of the Fourteenth Amendment.

This Court has held that, "federal courts closely scrutinize state laws whose very design infringes on the rights of voters." Curry v. Baker, 802 F.2d 1302, 1314 (11th Cir. 1986). The district court failed to closely scrutinize the Manual Recount Statute, failing to recognize its unconstitutional structural flaw. The Manual Recount Statute provides the structure for candidates and other partisans to create a two-tiered system of counting votes that will be inherently biased in their favor and which dilutes the votes cast for their opponents. As the Attorney General for the State of Florida has explained:

A two-tiered system would have the effect of treating voters differently, depending upon what county they voted in. A voter in a county where a manual recount was conducted would benefit from having a better chance of having his or her vote actually counted than a voter in a county where a hand count was halted.

As the State's chief legal officer, I feel a duty to warn that if the final certified total for balloting in the State of Florida includes figures generated from this two-tiered system of differing behavior by official canvassing boards, the State will incur a legal jeopardy, under both the U.S. and State constitutions. This legal jeopardy could potentially lead to Florida having all of its votes, in effect, disqualified and this state being barred from the Electoral College's selection of a President.

Butterworth Letter. This concern expressed by Florida's chief legal officer strongly supports Voters' concerns.

While the Eleventh Circuit has intervened in less urgent circumstances, there appears to be broad agreement that federal courts must intervene in state election disputes when (1) "the alleged constitutional error changed the election result" or (2) "the alleged constitutional error placed in everlasting doubt what was the true result of the election." Roe I, 43 F.3d at 585 (Edmondson, J., dissenting). While it is uncertain at this moment whether the results of the manual recounts will change the election result, it is certain that they will have a substantial effect on the outcome. In any event, the Party's selective exploitation of the Manual Recount Statute in three, perhaps, four heavily populated, disproportionately Democratic counties has unquestionably tainted the 2000 election for President.

1. Florida's Two-tiered System for Counting Votes Violates Well-settled Principles of Equal Protection in the Context of Dilution of Votes.

There are two lines of vote dilution cases, one based on geography, Reynolds v. Sims, 377 U.S. 533 (1964), and one based on "stuffing of the ballot box." Wesberry, 376 U.S. at 17. Each are implicated here.

Ogilvie involved geographic vote dilution in the selection process for Illinois' Presidential Electors. 394 U.S. 814. The Court held that Illinois' process violated equal protection because it weighted nominating signatures from some counties more heavily than other counties. Id. at 816. This created a two-tiered system depending on county residence. "When a State makes classifications of voters which favor residents of some counties over residents of other counties, a justiciable controversy exists." Id. The Court established a broad rule that: "All procedures used by a State as an integral part of the election process must pass muster against the charges of discrimination or of abridgment of the right to vote," Id. at 818 (emphasis added), because equal protection establishes a "constitutional theme of equality among citizens in the exercise of their political rights." Id. at 819. "The idea that one group can be granted greater voting strength than another is hostile to the one man, one vote basis of our representative government." Id.

Ogilvie is consistent with a large body of Supreme Court precedent striking down state statutes that result in the unequal weighing of votes based on county-by-county designs. In Reynolds, 377 U.S. 533, the Supreme Court held that equal protection required that the seats in both houses of a state legislature must be apportioned on a population basis to avoid dilution of votes. In Wesbury, 376 U.S. 1, the Court held:

We do not believe that the Framers of the Constitution intended to permit the same vote-diluting discrimination to be accomplished through the device of districts containing widely varied numbers of inhabitants. To say that a vote is worth more in one district than in another would . . . run counter to our fundamental ideas of democratic government . . . .

See also Baker v. Carr, 369 U.S. 186 (1962) (equal protection challenge to a state scheme apportioning legislators along county lines without regard to the relative population of the counties was a justiciable controversy).

Favored weighting of votes along county lines is exactly what the Supreme Court rejected in Reynolds as denying equal protection of the laws.

Overweighting and overvaluation of the votes of those living here has the certain effect of dilution and undervaluation of the votes of those living there. The resulting discrimination against those individual voters living in disfavored areas is easily demonstrable mathematically. Their right to vote is simply not the same right to vote as that of those living in a favored part of the State. Two, five, or 10 of them must vote before the effect of their voting is equivalent to that of their favored neighbor. Weighting the votes of citizens differently, by any method or means, merely because of where they happen to reside, hardly seems justifiable. One must be ever aware that the Constitution forbids sophisticated as well as simple-minded modes of discrimination.

Reynolds, 377 U.S. at 563 (footnotes and citations omitted) (emphasis added). See also Gray v. Sanders, 372 U.S. 368, 379 (1968) ("Once the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote . . . wherever their home may be in that geographical unit. This is required by the Equal Protection Clause . . . .").

The Equal Protection Clause also safeguards the rights of voters to have their valid votes counted along with the valid votes of other voters. United States v. Saylor, 322 U.S. 385, 388-89 (1944); United States v. Mosely, 238 U.S. 383 (1880). The Manual Recount Statute, however, allows a candidate in a statewide election to selectively cause the votes in some counties to be counted while ignoring valid votes in other counties, based on partisan political advantage. Thus, many valid votes that were not tabulated in the first count or during the mandatory machine recount will not be counted in those counties where no manual recount has been requested, while the votes of similarly situated voters in other counties will be counted. Of course, this partisan effect is magnified when vague, subjective, arbitrary and capricious standards are used to count votes, as is the case here.

The Party has requested manual recounts in only four of Florida's sixty-seven counties. However, these counties are all among the most densely populated counties in Florida and in each one Vice President Gore received a significantly higher proportion of the vote than did Governor Bush. While the statewide vote was split nearly evenly, in the counties selected by Vice President Gore, he received approximately 6 out of every 10 votes cast. See Exhibit A to Harris Response.

Of the roughly six million votes cast statewide, the four counties selected by the Party accounted for an average of about 450,000 votes per county. The other 63 counties account for an average of roughly 65,000 votes per county. This is a nearly 7 to 1 ratio. The Manual Recount Statute invites a candidate who trails in a closely contested statewide race to seek a manual recount only in those heavily populated counties where the candidate received a disproportionate share of the votes.

"Undervotes" are randomly occurring, inadvertent events that do not follow party affiliation,⁽⁶⁾ so reconstructed undervotes will occur in close to the same proportion for candidates as the pool from which they were selected. In the statewide pool of votes cast for President, reconstructing undervotes would likely have little net effect on the outcome of a statewide election. That is not the case, however, when the pool of votes favors one candidate over the other in a ratio of 2 to 1, as is the case in Broward County, for example. See Exhibit A to Harris' Response. Reconstructed undervotes in Broward County will predictably favor Vice President Gore by a 2 to 1 ratio.

As a result, adding reconstructed undervotes from Broward County will artificially skew the statewide vote totals in the direction of the candidate disproportionately favored by Broward County voters and away from the candidate favored by the voters in 51 of Florida's 67 counties. See Harris Exhibit A.

For the same reason, the Party did not request manual recounts in heavily populated counties favoring the Republican candidate, like, for example, Duval County, Harris Response, Exhibit A, because the reconstructed undervotes in those counties could offset the gains made in the four selected counties.

Twenty-six Florida Counties used the punch ballot. Party Appendix, Tab 13 at ¶ 4. Punch ballot systems have a predictable error rate of 2% to 5%, Party Appendix,Tab 16 at ¶ 8, that was well-known to Florida's election officials before the 2000 election. Party Appendix, Tab 15 at ¶ 4. Thus, anyone motivated by a sincere desire to see that all ballots be counted would not focus on only four counties. Thus, the Manual Recount Statute has created the unconstitutional "effect of treating voters differently, depending upon what county they voted in." Butterworth Letter.

Significantly, the Party has never denied that the statute may be exploited in this fashion. Nor has it denied that it intended to create a partisan advantage by carefully targeting only counties where its candidate stands to gain a significant advantage. The Party has simply asserted that it followed the rules.⁽⁷⁾ But, by exploiting this "two-for-me, one-for-you" advantage in a manual recount, the Party has exposed the Manual Recount Statute's inherently unfair structural flaw. If the results of the manual recounts are permitted to be used to determine the winner, the Party will succeed in artificially skewing the margin of votes in the Democratic candidate's favor, diluting the Voters' votes for the Republican candidate.

In this case, voters in one county are favored over another, because the Manual Recount Statute allows selective manual recounts at the instance of one candidate and in the absolute discretion of the county canvassing board. Even if proper standards are used to count votes upon visual inspection of the ballots, the result will be a net increase for the favored candidate. Of course, by using the vague, subjective, arbitrary and capricious standards used in this case, the effect is magnified. Thus, voters in one county are favored over others with a partisan result.

The Manual Recount Statute did not permit the Voters to seek manual recounts in the rest of the state to offset this heavily biased reconstruction of undervotes in the counties selected by the Party. Nor does the statute provide for procedures that other states have adopted to ensure fundamental fairness in selecting which counties to manually recount. As a result of the statute's structural flaw, Voters' votes, and those of hundreds of thousands of other voters throughout Florida, will be irretrievably diluted, contrary to the Equal Protection Clause.

2. Other states have adopted recount procedures that are fundamentally fair to both candidates and protect the interests of all voters.

Voters do not challenge per se the validity of manual recounts.⁽⁸⁾ The problem here is that Florida's manual recount procedure is fundamentally unfair because it can be exploited to create a partisan advantage for a particular candidate while lacking any safeguards to protect voters in other counties. Other states have adopted recount statutes to prevent the fundamental unfairness of Florida's Manual Recount Statute.

Indiana, for example, provides that, once a candidate requests a recount of particular counties or precincts, his opponent may file a cross-petition requesting a recount in other counties or precincts. Ind. Code §§ 3-12-6-4 and 6. Both recounts must be granted. As a result, the Indiana procedure is fundamentally fair because it does not allow a partisan advantage for a particular candidate by selective recounting of the votes. It allows each candidate to seek a partisan advantage through the recount while maintaining a non-partisan procedure overall. See also 10 Ill. Comp. Stat. Ann. 5/23-23.

In Maryland, if an election outcome is changed by a recount, an opposing candidate may demand his own recount of votes in precincts not specified by the petitioner. Md. Code Ann., Elections § 12-102 (1999). Other states have a similar procedure. See 21-A Me. Rev. Stat. Ann. tit. 21-A § 737-A (1999) ("If after the official tabulation [of a recount requested by the losing candidate] is submitted to the Governor, the apparent winner is determined the losing candidate, that candidate may request another recount . . ."); N.J. Stat. Ann. § 19:28-4 (2000).

In Missouri, a preliminary hearing with both parties is held after a candidate requests a recount to determine the necessity for a recount. Mo. Rev. Stat. § 115.537 (1999). A recount is not authorized until the court hears evidence from both sides and determines that it is necessary, based on a prima facie showing of irregularities. Id.; Mo. Rev. Stat. § 115.539 (1999).

Thus, the choice is not between no manual recounts and only state-wide manual recounts. The procedural safeguards found in the above statutes provide fairness to all candidates and foreclose system manipulation for partisan advantage. Such fairness is wholly lacking in the Florida Manual Recount Statute.

3. Election officials changed pre-existing rules for counting ballots after the manual recount had begun.

In Roe v. Alabama, 68 F.3d 404 (11th Cir. 1995) ("Roe III"), this Court held that changing the pre-existing procedure for counting absentee ballots after the election amounted to unconstitutional dilution of votes. This case is just like Roe III. In this case, the canvassing boards in Broward and Palm Beach Counties had pre-existing procedures for counting punch-card ballots that required that at least one corner of the chad be dislodged. In Palm Beach County, the canvassing board had a ten-year-old official written policy that was in place on November 7, 2000 to this effect:

The guidelines assume that these directions [to voters on voting machines] have been understood and followed. Therefore, a chad that is hanging or partially punched may be counted as a vote, since it is possible to punch through the card and still not totally dislodge the chad. But a chad that is fully attached, bearing only an indentation, should not be counted as a vote. An indentation may result from a voter placing the stylus in the position but not punching through. Thus, an indentation is not evidence of intent to cast a vote.

GUIDELINES ON BALLOTS WITH CHADS NOT COMPLETELY REMOVED, Party Appendix, Tab 8, Exhibit A (emphasis added).

The Manual Recount Statute has permitted county canvassing boards to continually change the standards by which the ballots are evaluated in the hand recounts. In Palm Beach County, on Saturday, November 11, election officials began their manual count, counting ballots with any of the corners of a chad punched out, in accordance with the standard adopted in 1990.⁽⁹⁾ Later that morning, the canvassing board decided to adopt a new interpretation of the 1990 standard, whereby a vote would be counted if sunlight could be seen through the ballot (the "sunlight" test).⁽¹⁰⁾ Later that same day, the canvassing board determined that the "sunlight" test was unworkable and returned to the original interpretation of the 1990 standard.⁽¹¹⁾ That standard does not count pregnant or dimpled chads as votes. The Party filed suit demanding that pregnant or dimpled chads be counted as votes.⁽¹²⁾ On Wednesday, November 22, Circuit Judge Jorge Labarga ruled that dimpled chads must be considered in the recount.⁽¹³⁾

In Broward County, on Saturday, November 11, election officials voted to begin a hand recount of three precincts on Monday, November 13, to determine whether a full hand recount would be necessary.⁽¹⁴⁾ On Wednesday, November 15, the board decided to begin a full hand recount.⁽¹⁵⁾ On Thursday, November 19, election officials decided to consider "ballots with dimpled, pregnant chads or otherwise questionable chads."⁽¹⁶⁾ This decision was a change from the previous standard of counting only ballots with at least two corners of the chad dislodged.⁽¹⁷⁾ Thus, contrary to this Court's controlling holding in Roe III, election officials are counting numerous ballots under the ever-shifting, new post-election standards, which would not have been counted under the written policies in place on election day.

C. The Manual Recount Statute Is Systemically and Fundamentally Unfair and Results in the Dilution of Voters' Votes.

Due process demands federal relief because Florida's Manual Recount Statute itself results in the constitutional deprivation of rights. Here, "the election process itself [has] reached the point of patent and fundamental unfairness," and, thus, goes beyond the "garden variety election disputes." Roe I, 43 F.3rd at 580; see also Scheer v. City of Miami, 15 F. Supp.2d 1338, 1342 (S.D. Fla. 1998) ("A federal court should only intervene into state election disputes where the entire process is fundamentally unfair.").

By voting, voters express their intent that particular candidates be elected through means supplied by the county. Voting instructions issued by the county to voters explain how to complete the casting of a valid ballot and effectuate that intent. See Attachment 3 to Emergency Motion.⁽¹⁸⁾ Voting and counting votes mean expressing intent and tabulating expressions of intent in accordance with the legal principles governing those processes. See In re Election of the U.S. Representative for the Second Congressional District, 653 A.2d 79, 90-91 (Conn. 1994).

Inherent in the right to vote is having the vote counted in a manner consistent with the voter's intent. See United States v. Mosely, 238 U.S. 383, 385 (1915) ("We regard it as equally unquestionable that the right to have one's vote counted is as open to protection by Congress as the right to put a ballot in a box."); see also United States v. Classic, 313 U.S. 299, 315 (1941). The Constitution protects these rights and nullifies any state law that denies these rights to its citizens. Lane v. Wilson, 307 U.S. 268, 275 (1939).

Furthermore, "inherent in the recount procedure is the concept of fairness to all interested candidates in an election." Miller v. County Commission of Boone County, West Virginia, 2000 W. Va. LEXIS 107, *18 (W. Va. Oct. 2, 2000). Although the Manual Recount Statute delegates power to county canvassing boards to authorize manual recounts, it does not circumscribe this power to prevent partisan and unfair decisions.

Not only does the Manual Recount Statute permit selectivity by the candidate, it compounds the constitutional problem by (1) failing to provide any standards to guide county canvassing boards in deciding whether to grant requests for manual recounts, (2) failing to provide uniform rules for how votes are to be counted if a request is granted, and (3) failing to require notice to opposing candidates and opportunity for them to be heard. Such opportunity for selectivity and failure to incorporate any standards result in a gross lack of fundamental fairness.

Statutes that fail to establish standards that are sufficient to guard against arbitrary and capricious deprivations of liberty interests, partisan decisions, unfairness, and favoritism violate due process. City of Chicago v. Morales, 527 U.S. 41, 52 (1999) (citing Kolender v. Lawson, 461 U.S. 352, 358 (1983)); see also Dickinson v. Florida, 227 So.2d 36, 37 (Fla. 1969) ("[W]hen statutes delegate power [with] inadequate protection against unfairness or favoritism, and when such protection could easily have been provided, the reviewing court should invalidate the legislation."). "The legislative exercise of the police power should be so clearly defined, so limited in scope, that nothing is left to the unbridled discretion or whim of the administrative agency charged with the responsibility of enforcing the act." Dickinson, 227 So.2d at 37; see also Delta Truck Brokers, Inc. v. King, 142 So.2d 273 (Fla. 1962) ("The legislative delegation of power . . . is totally devoid of any standards . . . . It leaves . . . authority to exercise an unlimited discretion . . . . Such a delegation of power is violative of the organic law and must fall."). The lack of due process that results from the failure of Florida's Manual Recount Statute to incorporate any standard circumscribing county canvassing boards' discretion leads inevitably to the dilution of Voters' vote.

1. The lack of standards in the Manual Recount Statute circumscribing the granting of a manual recount contributes to the lack of due process.

The Manual Recount Statute not only permits candidates to use Florida's manual recount procedure selectively to gain votes, it also gives absolute discretion to the county canvassing boards on whether or not to grant such requests. Fla. Stat. § 102.166(4)(c); Broward County Canvassing Board v. Hogan, 607 So. 2d 508 (Fla. App. 1992). Thus, Democrat boards are under no statutory compulsion to deny Democrat candidates' requests for manual recounts when such candidates received the most votes in that county, even when such requests are not predicated on a failure of the voting tabulation system to accurately count votes, but are simply transparent attempts to mine for votes.⁽¹⁹⁾

This absolute, standardless discretion to authorize manual recounts of votes contributes to lack of due process. Such a lack of fundamental fairness in turn results in the dilution of Voters' votes because a canvassing board may arbitrarily allow some votes to be manually recounted while others are not manually recounted.

2. The Manual Recount Statute's lack of standards for reconstructing ballots allows differing rules, the use of a vague, subjective, arbitrary and capricious "intent" tests, and the counting of ballots cast contrary to voting instructions.

The only objective standard for determining a voter's intent is for the voter to complete the casting of her vote in conformance with the instructions the voter received in how to cast her ballot. In Florida, voters are instructed to punch through the ballot to cast their vote. Attachment 3 to Emergency Motion; Party Appendix, Tab 8, Exhibit A. If voters throw their ballots on the floor before reaching the ballot box, they are not counted. Thus, only "[w]hen a voter complies fully with the provisions of the act as to the expression of his intent, the evidentiary facts from which his choice is to be found are capable of but one construction . . . ." Murchie v. Clifford, 79 A. 901, 903 (N.H. 1911).

Fundamental unfairness, however, results from counting reconstructed ballots cast contrary to voting instructions. These county-issued voting instructions are relied on by voters to ensure that votes will be correctly counted for the candidate for whom the voter intended to vote. See Bennett v. Yoshina, 140 F.3d 1218, 1227 (9th Cir. 1998); cf. Hendon v. North Carolina State Board of Elections, 710 F.2d 177, 180 n.4 (4th Cir. 1983) (improperly marked ballots could not be counted). The voting instructions here present a clear way for voters to make their choice for President. Voters who did not choose to vote (an undervote) for a Presidential candidate may do so by not punching through the ballot. "It is beyond belief to suggest that thousands of voters" who did not punch out the chip or chad "were secretly relying on the hope that their votes would[] be counted." Bennett, 140 F.3d at 1228.

Not only does the Manual Recount Statute not employ an objective standard, it does not delineate any standard for the manual counting of ballots, allowing counties to use any standard they choose. When ballots are ambiguous (ballots not completely punched through), county canvassing boards have attempted to subjectively divine the intent of the voter by employing various methods.⁽²⁰⁾ This practice is subjective because there are two equally plausible explanations if ballots are not punched through. It is arbitrary and capricious to pick one intent over another when faced with such ballots. Such an approach also fails to recognize those voters who deliberately choose not to vote for any Presidential candidate but the boards divine that their intent was to cast a vote for a candidate.

If a ballot is not punched through, there are two equally plausible explanations. First, the voter attempted to push the stylus through, but because of weakness, frailty, or lack of attention, failed to fully disengage the chad from the ballot. Second, the voter realized she made a mistake and stopped, simply changed her mind, or accidently put the stylus on the wrong chad, leaving a slight indentation. As the Palm Beach County Canvassing Board recognized in a ten-year-old official policy that was in place on November 7, 2000, "The guidelines assume that these directions [to voters on voting machines] have been understood and followed. . . . Thus, an indentation is not evidence of intent to cast a vote." Party Appendix, Tab 8, Exhibit A.

A Florida circuit court judge, however, ordered the Palm Beach County canvassing board to abandon this standard and to attempt to divine the intent of voters where only a dimple exists on the ballot. Palm Beach Order, November 22, 2000. Therefore, "[t]he intent expressed by them is only such as those expressing it could entertain." Murchie, 79 A. at 903. Although canvassing boards are faced with two equally plausible inferences of a voter's intent when they do not punch through the ballot, the Manual Recount Statute gives county canvassing boards the power to decide for whom voters intended to cast votes for President.

Even where state legislatures have undertaken to adopt statutory standards, courts have invalidated them if the were arbitrary. See Hendon v. North Carolina State Board of Elections, 710 F.2d 177, 180 (4th Cir. 1983) ("imposition of a legislative preference for the straight party candidate, when the voter has indicated no such preference, is an arbitrary subversion of the electoral process that serves no compelling state interest."); Melchior v. Todman, 296 F. Supp. 900, 902 (D.V.I. 1968) (legislature's choice that attempted votes for seven or more candidates be counted as a vote for the indicated straight party ticket was "an arbitrary and invalid imposition of legislative preference where the voter has failed to indicate his own."); Murchie, 79 A. at 902, 903-04 (invalidating statute providing that "[u]nless canceled or erased, all names in the party columns under the circle marked by the voter shall be counted to the exclusion of others."). If "[t]he legislature may enact the method by which a man shall vote, but cannot direct how the ballot he casts shall be counted," Murchie, 79 A. at 903-04, it follows that the county canvassing boards may not direct how an ambiguous ballot, not cast in conformance with voter instructions, shall be counted either.

Nor have the county canvassing boards been consistent in applying their subjective intent standard. See Exhibit B to Verified Complaint. County boards have adopted one set of rules, only to change them in mid-count, and then change them a third time. (VC ¶¶ 27, 28).⁽²¹⁾ The Manual Recount Statute, which allows interpretation of ballots to divine subjective intent, thus permits partisan county canvassing boards to be result-oriented. Due process demands that a manual recount employ neutral, uniform and objective rules. Any other approach permits the manipulation of the vote by one candidate, leading to the dilution of the Voters' votes.⁽²²⁾

3. The Manual Recount Statute's failure to provide for notice and an opportunity to be heard contributes to a lack of fundamental fairness and results in a dilution of Voters' votes.

Opposing candidates are statutorily prevented from protecting the integrity of the vote from manipulation by candidates and election officials conducting selective manual recounts of votes. The Manual Recount Statute neither requires notice that a manual recount has been requested nor provides opportunity to be heard. After a manual recount is ordered, the Statute provides only for "a reasonable effort to notify each candidate." Fla. Stat. § 102.166(4)(c).

"Due process under the Federal and State Constitutions . . . . [c]ontemplates reasonable notice and an opportunity to appear and be heard before judgment is pronounced." State of Florida ex rel Barancik v. Gates, 134 So. 2d 497, 500 (Fla. 1961). "'The organic requirements of due process of law are controlling when life, liberty or property rights are involved in any official action, . . . whether the action is a duly authorized administrative or ministerial function or duty.'" Id. (citation omitted) (emphasis in original). Therefore, because the "right to vote . . . transcends property rights" and "is the keystone in the arch of liberty," due process requires notice and opportunity to be heard before a manual recount request may be granted. Id. at 499-500.

The Manual Recount Statute only permits requests for candidates or political parties for manual recounts "prior to the time the canvassing board certifies the results for the office being protested or within 72 hours after midnight of election day, whichever occurs later." Fla. Stat. § 102.166(4)(b). County canvassing boards also have complete discretion to select additional precincts to be manually recounted. Fla. Stat. § 102.166(4)(d). No provision is made for the non-requesting candidate to be heard. If the 72 hour time period has elapsed and other counties have certified their results before a county has acted on another candidate's request for a manual recount, a subsequent grant of this request prevents the non-requesting candidate from countering with requests for manual recounts in other precincts or counties. Nor does a candidate possess any recourse if the county board decides to expand the manual recount to other precincts.

Thus, the Manual Recount Statute permits partisan county canvassing boards to decide to manually recount targeted precincts to increase the votes of candidates after the favorable results of the candidate-requested manual recount are known, while preventing opposing candidates from contesting this manual recount or requesting recounts in other counties.

While candidates may generally be surrogates to protect voters' interests, the interests of a candidate and a voter attempting to protect his right not to have his vote diluted may not be identical. The real parties in interest here are the Voters. They have the ultimate interest and the Court must give them primary consideration.

[A]n aggrieved voter is not concerned about getting elected, but with his right, and the right of others similarly situated, to vote. It is quite conceivable that a candidate hoping to get elected would concede certain issues that an aggrieved voter would not. Similarly, a candidate may decide to settle or dismiss a suit when an aggrieved voter would pursue the case to its conclusion.

Roberts v. Wamser, 883 F.2d 617, 622 (8th Cir. 1989). But when a candidate is denied manual recounts, or when the opposing candidate engages in partisan selective recounts, voters have no recourse to prevent dilution of their votes. Where the statute deprives candidates of due process, it deprives voters of due process.

D. This Court Should Exercise Jurisdiction.

As this Court has held, "[F]ederal courts closely scrutinize state laws whose very design infringes on the rights of voters." Curry v. Baker, 802 F.2d 1302, 1314 (11th Cir. 1986). Furthermore, the right of suffrage is "a fundamental political right, because [it is] preservative of all rights." Yick Wo v. Hopkins, 118 U.S. 356, 370 (1885). Voting in local and state elections is subject to constitutional protection. Phoenix v. Kolodziejski, 399 U.S. 204, 209 (1969). The right of all qualified voters to vote and to have their votes counted and not diluted in state elections is ultimately insured by the Constitution of the United States, specifically the Equal Protection Clause. See Reynolds, 377 U.S. at 544. The Constitution creates this protection as an ultimate safeguard against state action that imposes structural unfairness. The Constitution and Supreme Court decisions leave no room for doubt that Voters' voting rights are federally protected.

The Constitution does delegate to the states the primary power and responsibility to conduct and police their own elections. U.S. Const. art. I, § 4, cl. 1. But, it is not enough to simply state that this case involves a state election because even elections are governed by the Constitution. Where the state action is one "that systematically den[ies] equality in voting," rather than an "episodic event[]," a violation of the equal protection clause is found. Gamza v. Aguirre, 619 F.2d 449, 453 (5th Cir. 1980).

Principles of federalism and comity also are not implicated here. While election irregularities and official misconduct claims may not always rise to the level of constitutional violations, "there remain some cases where a federal role is appropriate." Griffin v. Burns, 570 F.2d 1065, 1077 (1st Cir. 1978); cf. Hennings v. Grafton, 523 F.2d 861 (7th Cir. 1975) (malfunctioning voting machines in just one election considered garden variety irregularity).

"The right to vote remains, at bottom, a federally protected right," id., which "lies poised between due process and equal protection." Navedo v. Acevedo, 752 F. Supp. 523, 528 (D.P.R. 1990). "If the election process itself reaches the point of patent and fundamental unfairness, a violation of the due process clause may be indicated and relief under § 1983 therefore is in order." Griffin, 570 F.2d at 1077. "The essence of the protection, then, flows not from the availability per se of elections, but in their even-handed application where provided." Navedo, 752 F. Supp. at 528 (emphasis added). Therefore, "there is precedent for federal relief where broad-gauged unfairness permeates an election, even if derived from apparently neutral action." Griffin, 570 F.2d at 1077 (citing Brinkerhoff-Faris Co. v. Hill, 281 U.S. 673 (1930)).

It is important to note that, although the Manual Recount Statute has governed Florida elections for years, the fact that it has not come to national attention until now does not change the unfair structural design of the statute. Unless this statute is struck down, candidates will use this method of manipulating vote totals as a blueprint in coming elections.

In Briscoe v. Kusper, 435 F.2d 1046 (7th Cir. 1970), certain nomination papers in a Chicago alderman election were invalidated by the Board of Election Commissioners of Chicago for technical failings. Those failings had arisen only because the Board had recently changed its requirements. Plaintiffs had compiled their petitions on the basis of the old rules, the Board having failed effectively to announce the new rules. The court found the Board's refusal to accept the now-invalid petitions constitutionally unacceptable. Due process required the Commissioners to "establish and publish meaningful guidelines." Griffin, 570 F.2d at 1078. The unannounced eleventh-hour change in Briscoe could not deprive candidates of participation in the election. Id.; cf. Porter v. Bainbridge, 405 F. Supp. 83 (D. Ind. 1975).

As in Briscoe, this case involves a post-election change in procedure. County canvassing boards are counting ballots with swinging chads, tri-chads, and dimpled chads, contrary to county voting instructions issued before the election and provided to all voters, notifying them that "lawfully cast ballots" are those "punched through." Compounding the problem, counties performing manual recounts are changing the standard by which they recognize a valid ballot during the manual recounts, often in the same day. Thus, not only are ballots among the counties not being counted by the same method or standard, but ballots within a county are counted by different standards.

The Supreme Court of Florida construed or rewrote Florida statutes, but did not address any federal constitutional issues, so this Court may exercise jurisdiction. See Navedo, 752 F. Supp. at 531 (noting that in both Griffin and Henry v. Connolly, 910 F.2d 1000 (1st Cir. 1990), the highest state court had ruled on the issue involved as a matter of state law and federal courts held they had jurisdiction and "examined the adequacy of that state rule through a constitutional lens.").

Therefore, because this Court is asked to remedy, through a "constitutional lens," a broad-gauged, systemic, fundamental unfairness that infects the results of a state election, rather than examine the validity of individual ballots or supervise the administrative details of the election, this Court will be appropriately exercising federal jurisdiction. See Navedo, 752 F. Supp. at 530 ("[T]he federal role is limited to intervening where those failings are systematic."). Thus, the Court should reach the merits of this important case.

II. In the Absence of Injunctive Relief, Voters' Rights Will be Irreparably Harmed.

While the 11th Circuit has intervened in less urgent circumstances, federal courts must intervene in state election matters when either (1) "the alleged constitutional error changed the election result" or (2) "the alleged constitutional error placed in everlasting doubt what was the true result of the election." Roe I, 43 F.3d at 585 (Edmondson, J., dissenting).

When one candidate's victory can only be attributed to the addition of undervotes through the exploitation of the constitutionally flawed Manual Recount Statute, there is no way that the candidate can ever be proven to have received the most votes by any constitutionally sound process, and the legitimacy of the candidate's "victory" must forever be in doubt. Whatever the theoretical merits of hand counts, Florida law does not provide a means for them to be conducted in a fair and accurate manner in a Presidential election. These manual recounts result in the kind of "patent and fundamental unfairness tied to concrete harm" that "will justify immediate significant federal interference in the election processes of a state." Id. at 585-86.

The wrongful election of Presidential Electors would violate Voters' fundamental rights. As the United States Supreme Court has declared, "[t]he right of qualified voters, regardless of their political persuasion, to cast their votes effectively," is a "distinct and fundamental right[]." Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979). The same Constitution that guarantees the right of the people to vote protects that right from dilution. See Wesberry, 376 U.S. at 17. It is well settled that the deprivation of constitutional rights generally suffices for a showing of irreparable harm. See, e.g. Elrod v. Burns, 427 U.S. 347, 373-74 (1976) (First Amendment); Monterey Mechanical Co. v. Wilson, 125 F.3d 702, 715 (9th Cir. 1997) (Equal Protection); Statharos v. New York City Taxi And Limousine Commission, 198 F.3d 317, 322 (2nd Cir. 1999) (Privacy); Cheffer v. McGregor, 6 F.3d 705, 711 (11th Cir. 1993) (First Amendment).

Here, the Attorney General for the State of Florida has expressed a well-founded concern that the Manual Recount Statute creates a two-tiered system for counting votes in violation of the Equal Protection Clause. Butterworth Letter. This unconstitutional two-tiered system will result in Presidential Electors being certified contrary to the will of the voters. In contrast with most election contests, a delay here would permanently alter the results as these Electors have no power to re-vote after December 18. 3 U.S.C. § 7. These consequences certainly amount to irreparable harm to Voters and others similarly situated.

This Electoral College deadline is a federal mandate that renders the usual state remedy of an election contest useless and inadequate. Federal law constrains the efforts of state courts to resolve a challenge such as that lodged by Voters. Furthermore, and ironically, the state procedures themselves that ought ordinarily to be effective to resolve challenges like Voters' may, under these circumstances, actually work a denial of Equal Protection and Due Process of their own. For the Florida courts to take the time necessary to give full consideration to a contest would threaten the injury of totally negating Voters' votes for electors by allowing wrongfully certified Democrat electors to give Vice President Gore a majority vote of the Electoral College. For state procedures thus to nullify the effect of Voters' votes, along with the votes of the other Floridians who cast ballots for Republican electors, the votes that constitute the majority of those cast when counted in a manner consistent with Equal Protection and Due Process, would itself deny Voters Equal Protection and Due Process. The role of Florida in this election would have been to cause the election of the candidate whose electors had received the minority of Florida votes lawfully cast and counted.

Absent the special time constraints imposed by the Electoral College, Voters would have recourse to a fact-intensive election contest under Fla. Stat. § 102.168. However, such a contest cannot begin until the election results are certified, and the contest defendant is allowed 10 days to answer after the filing of the complaint. Fla. Stat. § 102.168. This answer would then be followed by an evidentiary hearing with the taking of testimony. Fla. Stat § 102.168(7). Of course, any trial court ruling would also be subject to appeal.

In practice, contest procedures in Florida routinely take several months and often several years. So common are extreme delays in such contests that the Florida Supreme Court has recognized a right to back pay on the part of candidates who take office following a successful contest. In explaining the need for such damages in a case following a 46 month contest, the court noted "the probability of a lengthy election contest may induce challengers to forego litigation because their victory may be monetarily hollow." Flack v. Graham, 453 So.2d 819, 821 (Fla. 1984). Even the most expeditiously minded court could still be thwarted by a certified candidate's delaying tactics. As one Florida court bemoaned, "[t]he proceedings in this election contest reflect that man is still unsuccessful in compiling a simple set of rules by which a cause may be tried expeditiously since one recalcitrant party may successfully delay until a critical date upon which he can cry, 'Mootness.'" Barber v. Moody, 229 So.2d 284, 287 (Fla. 1st Dist. Ct. App. 1969). While that court went on to resolve, "[w]e will not permit nor condone such tactics," id. at 287, it announced this decision more than 19 months after the date of the election, and remanded the case for further proceedings. Id. at 288.

Here, an election contest would be an enormous undertaking. Nearly six million ballots were cast, and approximately 180,000 ballots were discarded or disqualified in the Presidential race. Each would have to be evaluated by the court hearing a contest proceeding. There have also been numerous reported allegations of misconduct and error on the part of election officials in many counties which would need to be investigated to conduct a fair election contest. Any attempt by the Florida courts to hurry to a final determination would further compromise the adequacy of a state remedy and threaten irreparable injury to Voters.

Fundamental principles of federalism counsel this Court to act to prevent the irreparable injury to Voters. The principles underlying § 1983 counsel a federal role when a state remedy, "though adequate in theory, [is] not available in practice." Monroe v. Pape, 345 U.S. 167, 174 (1961). Even more fundamentally, federal courts should be sensitive to any "exigency [that might arise] requiring the interference of the general government to enforce the guaranties of the Constitution." Taylor v. Beckham, 178 U.S. 548, 580 (1900). "Perhaps the principal benefit of the federalist system is a check on abuses of government power. 'The "constitutionally mandated balance of power" between the States and the Federal Government was adopted by the Framers to ensure the protection of "our fundamental liberties."'" Gregory v. Ashcroft, 501 U.S. 452, 458 (1991), quoting Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242 (1985), quoting Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 572 (1985) (Powell, J., dissenting). Voters' rights to vote for Presidential Electors are injured because of a unique clash between state and federal requirements, procedures, and time constraints. The threat thus presented uniquely calls upon the federal judiciary to serve its function to protect a fundamental liberty.

However much the Florida state courts exert themselves to determine the potential issues before them, the choice cast upon them by federal law either to resolve the issues hurriedly or to cause the issues to be resolved too late, threatens Voters with irreparable injury. The very constitutional division of authority between state and federal governments in the selection and operation of the Electoral College counsels that a federal court act to prevent federal constraints upon the state role from frustrating the right of the state's voters to participate, by means in accordance with the Constitution, in the election of their President. Not to act will leave Voters subject to a substantial threat of irreparable harm.

III. Voters' Harm Outweighs Election Officials' Harm.

The balance of harms weighs heavily in favor of Voters and other similarly situated voters. If the injunction does not issue, Voters' votes for Elector will be diluted through the manual recount of a candidate-selected set of undervotes in four heavily populated, predominately Democratic counties while the undervotes in sixty-three counties will be completely uncounted, thus denying voters in those counties equal protection. Election Officials have no constitutionally legitimate interest in affording greater weight to candidate-selected votes than to the votes of similarly situated voters throughout the state. As state and county officials, their interests should be on the side of ensuring that all votes throughout the state are given equal weight. Because the dilution of Voters' votes may possibly affect the outcome of the election, the wrong candidate will take office. This factor is heavily in favor of Voters, and an injunction should be issued.⁽²³⁾

IV. The Public Interest Favors the Granting of Voters' Injunctive Relief.

The public interest favors the equal weighting of all of the ballots cast in a statewide race. Under the Manual Recount Statute, manual recounts may be requested by partisan political candidates, not to ensure that every valid ballot throughout the state is counted along with all of the others, but to seek a partisan political advantage. In the absence of the injunctive relief sought by Voters, a disproportionately high number of undervotes in four heavily populated, predominately Democratic counties will be added to the statewide vote total, while the valid undervotes throughout the rest of the state will not be counted at all. This result is contrary to the one-person-one-vote principle and is, therefore, contrary to the public interest. "The idea that one group can be granted greater voting strength than another is hostile to the one man, one vote basis of our representative government." Ogilvie, 394 U.S. at 819.

Stopping selective and manipulable recounts serves the public interest by halting their continuing erosion of the public trust. The seemingly endless process of multiple recounts has produced a strong appearance of corruption, in which public officials are widely viewed as acting out of their own partisan political interests rather than for the common good as their obligations of office demand. Reducing or preventing such an appearance of corruption is a critical public interest which would be well served by promptly enjoining these unconstitutional recounts and use of their fruit. See Roe, 43 F.3d at 585 (Edmondson, J. dissenting, stating that federal courts should intervene in state elections when "extrordinary circumstances affecting the integrity of the state's election process are clearly present in a high degree."). As the Supreme Court has reminded us in addressing other aspects of the electoral process:

Leave the perception of impropriety unanswered, and the cynical assumption . . . could jeopardize the willingness of voters to take part in democratic governance. Democracy works 'only if the people have faith in those who govern, and that faith is bound to be shattered when high officials and their appointees engage in activities which arouse suspicions of malfeasance and corruption.'"

Nixon v. Shrink Missouri Government PAC, 120 S.Ct. 897, 908-09 (2000) (quoting United States v. Mississippi Valley Generating Co., 364 U.S. 520, 562 (1961)).

So important is this public interest in avoiding the appearance of corruption by public officials that even limitations on a form of political expression - contributions to candidates - which were found to involve "'significant interference' with associational rights, could survive" where the state showed the limit to be drawn to stem an appearance of corruption. Shrink Missouri PAC, 120 S.Ct. at 904-05 (quoting Buckley v. Valeo, 424 U.S. 1, 28 (1976).

An appearance of corruption presents a sufficiently powerful public interest to justify restraints that "operate in an area of the most fundamental First Amendment activities" and where the "First Amendment affords the broadest protection." Buckley, 424 U.S. at 14. If an interest is sufficient to impose restraints on our most precious First Amendment freedoms, it certainly justifies an injunction to prevent the Manual Recount Statute from violating fundamental rights to equal protection under the law.

CONCLUSION

For all of the foregoing reasons, the district court should be reversed, and the Court should go to the merits and declare the Manual Recount Statute unconstitutional. The Election Canvassing Commission should be enjoined from certifying the results of the election using returns that include results from the selective, standardless manual recounts, and enjoin Secretary Harris, in her capacity of Secretary of the Department of State, from certifying the Electors under Fla. Stat. § 103.011,⁽²⁴⁾ using returns that include results from the selective, standardless manual recounts (or in the alternative, enjoin Secretary Harris to issue an amended certification under Fla. Stat. § 103.011 to reflect returns that do not include results from the selective, standardless manual recounts).

This brief is printed in 14 point Times New Roman type. This brief contains 13,625 words.

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
Email: jboppjr@abcs.com
www.jamesmadisoncenter.org
Counsel for Plaintiffs-Appellants

Respectfully submitted,

____________________________
James Bopp, Jr.
Heidi K. Meyer
James R. Mason, III.
Richard E. Coleson
Eric Bohnet
Justin David Bristol
Aaron Kirkpatrick

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document was on this date served upon the following counsel of record in the District Court by facsimile transmission completed by noon, November 27, 2000, and by First Class U.S. Mail on November 27, 2000.

L. Roland Blossom
Frank B. Gummey III
Office of Volusia County Attorney
123 West Indiana Ave.
Deland, FL 32720
Ph: 904/736-5950
Fx: 904/736-5990
Counsel for Volusia Defendants

Andrew McMahon
Office of Palm Beach County Attorney
301 North Olive Ave., Suite 601
West Palm Beach, FL 33401
Ph: 561/355-6021
Fx: 561/355-4234
Counsel for Palm Beach Defendants

Michael Cirullo
Tamara Seruddeus
Office of Broward County Attorney
115 S. Andrews Ave., Suite 423
Fort Lauderdale, FL 33301
Ph: 954/357-7600
Fx: 954/357-7641
Counsel for Broward Defendants

Lee Kraftchick/Javier Soto
Office of Miami-Dade County Attorney
111 NW 1st Street, Suite 2810
Miami, FL 33128
Ph: 305/375-1324
Fx: 305/375-5634
Counsel for Miami-Dade Defendants

J.B. Murray
Steel, Hector & Davis
1900 Phillips Point West
777 S. Flagler Dr.
West Palm Beach, FL 33401-6198
Ph: 561/650-7213
Fx: 561/655-1509
Counsel for State Defendants

Laurence H. Tribe
Hauser Hall, Room 420
1575 Massachusetts Avenue
Cambridge, MA 02138
Tel.: (617) 495-4621
Fax: (617) 495-3383
Counsel for Intervenor-Appellee Florida Democratic Party

Kendall Coffey
Coffey Diaz & O'Naughten, LLP
2665 South Bayshore Drive
Miami, Florida 33133
Tel.: (305) 285-0800
Fax: (305) 285-0837
Counsel for Intervenor-Appellee Florida Democratic Party

Teresa Wynn Roseborough
999 Peachtree Street, N.E.
Atlanta, Georgia 30309-3996
Tel: (404) 853-8100
Fax: (404) 853-8806
Counsel for Intervenor-Appellee Florida Democratic Party

Barry Richard
Greenberg Traurig, P.A.
101 E. College Ave.
P.O. Box Drawer 1838
Tallahassee, FL 32302
Ph. 850/222-6891
Fx: 407/841-1295
Counsel for George W. Bush

Barry Richard
GREENBERG TRAURIG, P.A.,
Tallahassee, Florida,
Theodore B. Olson
GIBSON DUNN & CRUTCHER LLP
Washington, D.C.,
Benjamin L. Ginsburg
PATTON BOGGS LLP
Washington, D.C.,
and
WHITE & CASE LLP
Suite 4900
200 South Biscayne Boulevard
Miami, Florida 33131-2352
Tel: (305) 371-2700
Fax: (305) 358-5744
Attorneys for Siegel Plaintiffs-Appellants

_______________________________
James Bopp, Jr.

Endnotes

1. Similarly, in Broward County, the voter is instructed "[t]o vote, hold the stylus vertically. Punch the stylus straight down through the ballot card for the candidates or issues of your choice." Attachment 3 to the Emergency Motion.

2. Other forms of ballots likewise result in overvotes and undervotes, for different reasons. Additionally, a manual recount cannot detect erroneous votes for the wrong candidate.

3. As of 12:00 noon on Sunday, November 26, 2000.

4. If the ballot is punched through, however, a "hanging" chad is occasionally produced where the chad is still attached by only one corner. These "hanging" chads can obscure the hole during a machine count and result in an undervote. Party Appendix, Tab 16. These ballots are properly counted in a manual recount. However, if the voter does not punch through the ballot, a "swinging door" chad (attached on two corners), a "tri" chad (attached on three corners) or a "dimpled" chad (attached on all four corners) can be created. At least three of the four counties are counting all of these, albeit under different circumstances. Ft. Lauderdale Sun Sentinel, Problem Punches (visited November 26, 2000) <http://www.sun-sentinel.com/images/chad.jpg> (provides a graphic representation of each type of chad).

5. Voters have also moved the Court to consider the purely legal question of whether the Manual Recount Statute denies equal protection on the merits. Because the statute by its very design denies equal protection, judicial economy counsels in favor of deciding this purely legal question now.

6. See Party Appendix, Tab 15 at ¶ 4, describing undervotes in punchcard ballots as "inadvertent."

7. Reasons cited by the Party in their recount requests, e.g. overvotes or voter confusion due to ballot placement, would not be corrected by a manual recount. See Party Appendix, Tabs 1-4.

8. See Roudebush v. Hartke, 405 U.S. 15 (1972).

9. See Palm Beach County Checks Ballot Chad, Washington Post, Nov. 11, 2000 (visited Nov. 22, 2000) <http://www.washingtonpost.com/wp-srv/aponline/20001111/aponline200511_000.htm>.

10. See id.

11. See id.

12. See Marcy Gordon, Palm Beach Counters Return To Work, Washington Post, Nov. 11, 2000 (visited Nov. 22, 2000) <http://www.washingtonpost.com/ wp- srv  /aponline/20001111/aponline203013_000.htm>.

13. Palm Beach Order, November 22, 2000.

14. See Karin Meadows, Officials Begin Florida Hand Count, Washington Post, Nov. 11, 2000 (visited Nov. 22, 2000) <http://www.washingtonpost.com/wp-srv/aponline/20001111/aponline203013_000.htm>.

15. See Terry Spencer, Broward Decides on Full Hand Recount, Washington Post, Nov. 15, 2000 (visited Nov. 22, 2000) <http://www.washingtonpost.com/wp-srv/aponline/20001115/aponline163359_000.htm>.

16. Carl Limbacher, As Gore Tally Lags, Broward Loosens Recount Rules (visited Nov. 22, 2000) <http://www.newsmax.com/showinside.shtml?a= 2000/11/19/135427>.

17. See id.

18. The district court erroneously refused to admit Exhibits 2 and 3 contained in Attachment 3 into evidence. Exhibits 2 and 3 consist of two pages each downloaded from the Palm Beach County Supervisor of Election's official website and the Broward County Supervisor of Election's official website. They are admissible under Fed. R. Evid. 901(b)(7). See Link v. Mercedez-Benz of N. Am., 788 F.2d 918, 928 (3d Cir. 1986) (concluding that the authentication requirement was satisfied by the "distinctive characteristics" of automobile manufacturer publications, including "company logos and other trademarks, the professional appearance of the various handbooks and manuals, and the specific nature of the contents of the documents."); United States ex rel Trice v. Westinghouse Hanford Co., 2000 U.S. Dist. LEXIS 8838 at *51 (E.D. Wash., March 1, 2000) ("public documents taken from government web sites . . . are admissible under Fed. R. Evid. 901(b)(7)."). Furthermore, the exhibits fall within Fed. R. Evid. 803(8)'s exception to hearsay for public records and reports and, in any event, are an admission by a party-opponent. Fed. R. Evid. 801(d)(2). Furthermore, this Court "review[s] the district court's determination of the 'constitutional facts' in a First Amendment case de novo." Coalition for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1316 (11th Cir. 2000), a standard which should apply here.

19. However, once the manual recount of three precincts, selected by the candidate, is granted and if that sample recount "indicates an error in the vote tabulation which could effect the outcome of the election," the county canvassing board has three option, including a manual recount of all the votes. Fla. Stat. § 102.166(5). In this circumstance, a recount of all the votes in the county, using one of the three options, is "mandatory." Gore v. The Miami-Dade County Canvassing Board, Op. at 2-3 (Fla. 3rd DCA, opinion dated November 21, 2000).

20. Determining voter intent in ballot reconstruction is a form of psychological "testing." It is a well-established fact that human judgment is highly susceptible to biasing factors, so that tests are acceptable only if they are (1) reliable (yielding consistent results), (2) valid (measuring what is purported), and (3) standardized (having uniformity of administration and scoring). A. Anastasi, Psychological Testing 25 (4th ed. 1976). Research establishes that the greater the ambiguity involved with interpreting a test (i.e., obscure "indications" of voter intent such as dimples or gouges on ballots), the less reliable the results. H.N. Garb, C.M. Florio & W.M. Grove, The validity of the Rorschach and the Minnesota Multiphasic Personality Inventory: Results from meta-analysis, 9 Psychological Science 402-04 (1998). And research also establishes the necessity of double-blind evaluations to eliminate biases.

Expectancy bias results when raters are influenced by the expectations of others, e.g., supervisors and political party leaders, and some commit leniency errors by employing evaluation criteria too loosely. W.T. Hoyt, Rater bias in psychological research: When is it a problem and what can we do about it?, 5 Psychological Methods 64-86 (2000). Paul J. Chara, Jr., Some concluding thought on the debate about the Vividness of Visual Imagery Questionnaire, 75 Perceptual and Motor Skills 947-954 (1992).

One bias particularly relevant to determining voter intent is confirmation bias, "a tendency to search for information that confirms one's perceptions." D.G. Myers, Psychology 108 (5th ed. 1998). This bias predicts manual recount personnel will be more likely to interpret information on subsequent ballots similarly to initial evaluations subject to this bias, and that this bias is more prevalent under conditions of high information load and very stressful conditions. B.B. Schaab, The influence of time pressure and information load on rule-biased decisionmaking performance, 58 (5-B) Dissertation Abstracts International: Section B: The Sciences and Engineering 2713 (1997).

Obscure standards and the failure to eliminate biases with double-blind procedures in ballot reconstruction permit