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' Reply Brief

TABLE OF CONTENTS i

TABLE OF CITATIONS iii

ARGUMENT 1

I. The Manual Recount Statute has caused a constitutional injury to Voters that requires this Court to decide this case. 1

A. Because the results of selective manual recounts were included in the certified totals, the Voters' votes are diluted, resulting in an ongoing constitutional injury. 4

B. The effect of including the results of the selective manual recounts is to shift the burden of proof to Governor Bush in the contest, resulting in an ongoing constitutional injury. 5

C. The use of the Manual Recount Statute here has had a substantial effect on the outcome of the election and has placed in everlasting doubt what was the true result of the election. 6

(1) The manual recount of votes has substantially affected the outcome of the election. 6

(2) The controversy surrounding the use of the Manual Recount Statute has placed in everlasting doubt what was the true result of the election. 7

D. The constitutional injury to Voters can be redressed, in whole or in part, through this Court's decision on the merits of this appeal. 8

E. The contest proceedings do not provide an adequate remedy for the constitutional injury suffered by Voters. 10

II. Voters Should Prevail on the Merits of Their Appeal. 11

A. Voters Have Article III Standing 11

B. The Manual Recount Statute Denies Equal Protection. 13

C. The Florida Democratic Party has Misrepresented the Holding of Pullen v. Mulligan. 14

D. The Supreme Court of Florida has Definitively Construed Florida Law to Allow Selective Manual Recounts under Arbitrary Standards, thus Abstention is not Warranted. 16

III. This Court Should Declare The Manual Recount Statute Unconstitutional on the Merits. 17

CONCLUSION 19

CERTIFICATE OF TYPE SIZE AND STYLE 20

CERTIFICATE OF SERVICE 21

TABLE OF CITATIONS

Cases

Bank One, Utah, National Association v. Guttau, 190 F.3d 844 (8th Cir. 1999)
18

Boardman v. Esteva, 323 So.2d 259 (Fla. 1975) 5

Burke v. Beasley, 75 So.2d 7 (Fla. 1954) 5

Clements Wire & Manufacturing Company, Inc. v. National Labor Relations Board, 589 F.2d 894 (5th Cir. 1979) 18

Larson v. Valente, 45 U.S. 228, (1982) 10

Moore v. Ogilvie, 394 U.S. 814 (1969) 11

Palm Beach County Canvassing Board v. Harris, 2000 Fla. LEXIS 2311, *44 (Nos. SC00-2346, SC00-2348, SC00-2349) (Fla. Nov. 21, 2000) 2, 16

Partido Nuevo Progresista v. Perez, 639 F.2d 825 (1st Cir. 1980) 12

Pullen v. Mulligan, 561 N.E.2d 585 (Ill. 1990) 14, 16

Rary v. Guess, 198 S.E.2d 879 (Ga. App. 1973) 16

Reynolds v. Sims, 377 U.S. 533 (1964) 12, 18

Roe v. Alabama, 68 F.3d 404 (11th Cir. 1995) 13, 14, 17

Roe v. State of Alabama, 43 F.3d 574 (11th Cir. 1995) ("Roe I")

2-4, 6-8, 11, 12, 14, 17

Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986) 17

United Church of the Medical Center v. Medical Center Commission, 689 F.2d 693 (7th Cir. 1982) 9

Statutes

3 U.S.C. § 7 2

Fla. Stat. § 102.166(4) 19

Fla. Stat. § 102.168(3)(e) 10

Fla. Stat. § 102.168(4) 10

Fla. Stat. § 103.011 19

Fla. Stat. §§ 102.121 19

ARGUMENT⁽¹⁾

I. The Manual Recount Statute has caused a constitutional injury to Voters that requires this Court to decide this case.

The passing of events in this fast-moving case has caused some Defendants to suggest that this appeal should not be decided on the merits and that the appeal, or even the underlying case, should be dismissed. See Brief of Volusia County Defendants at 10. At the heart of this suggestion is that the Voter's here do not continue to suffer a constitutional injury because (1) the County Defendants have completed their manual recounts and have certified their results, (2) the state-wide results have been certified, and (3), in any event, Governor Bush won. It is argued that this claimed lack of a constitutional injury precludes this Court from reaching the merits of the Voters' appeal on various jurisdictional and prudential grounds. While the specifics of each of these jurisdictional and prudential arguments are addressed below, this section will address the nature of the Voters' continuing constitutional injury.

Voters continue to suffer two concrete and immediate constitutional injuries. First, because the results of selective manual recounts were included in the certified totals, their votes are diluted. Second, the effect of including the results of manual recounts in the certified total is to shift the burden of proof to Governor Bush to challenge the validity of these votes in the contest proceeding, making it more difficult for him to defend his victory. Thus, Voters suffer and continue to suffer an ongoing constitutional injury.

Furthermore, even under the more demanding tests announce by Judge Emondson in Roe v. State of Alabama, 43 F.3d 574, 585 (11th Cir. 1995) ("Roe I"), this Court should still decide this appeal on the merits. First, the manual recount of votes have substantially affected the vote totals and, thereby, the outcome of this election, even though it may be weeks, months or even years before it will be known whether that effect was decisive. However, here, we cannot wait since the only act to be performed by the Electors is to vote on December 18th, and that vote is irretrievable. 3 U.S.C. § 7. Second, not one can reasonably dispute that the controversy surrounding the use of the Manual Recount Statute here has "placed in everlasting doubt what was the true result of the election." Only this Court can excise this tumor on our body politic.⁽²⁾

The roadmap for this Court's consideration of this case begins and ends with Roe I. 43 F.3d 574. There, this Court allowed a federal district court to directly intervene in an ongoing state election contest proceedings in Alabama where the federal court had ordered state officials not to count absentee ballots that a state court had ordered to be counted. Id. at 578-79. The basis for this action was the fact that the state court ordered the counting of absentee ballots, even though under past practice they would not have been counted. Thus, the counting of the absentee ballots would have constituted "a post-election departure from previous practice in Alabama," which would have "diluted the votes" of other voters. Id. at 581. As a result, this Court affirmed a preliminary injunction on behalf of Alabama voters to enjoin state officials "from certifying any election results . . . that have not been purged of known or identifiable contested absentee ballots." Id. at 583.

In all material respects, this case is identical to Roe I. The Plaintiffs here are Florida voters who claim that their votes are being diluted by counting votes cast contrary to voter instructions and past practices. Roe I establishes unequivocally that "a debasement or dilution of the weight of a citizen's vote" is a violation of the citizen's right to vote and is justiciable if it creates fundamental unfairness. Id. at 580. Fundamental unfairness arises if other ballots are counted based upon a post-election departure from previous practice. Id. at 581. Furthermore, as in Roe I, there is a state court decision, this time of the Florida Supreme Court, placing its imprimatur on the counting of the votes. Thus, under Roe I, Voters here should prevail.

A. Because the results of selective manual recounts were included in the certified totals, the Voters' votes are diluted, resulting in an ongoing constitutional injury.

As noted, a constitutional injury arises under Roe I by the mere act of vote dilution itself, regardless of the effect on the results of the election. Here, this vote dilution has already happened and is ongoing. The November 14th certified returns from Volusia County contained the results of a manual recount of all the ballots, as requested by the Florida Democratic Party under the Manual Recount Statute, Brief of Volusia County Defendants at 4, which resulted in 98 net additional votes for Vice President Gore. The November 26th certified totals included the results of manual recounts from Volusia County, as already explained, and from Broward County, as also requested by the Florida Democratic Party under the Manual Recount Statute, Party Appendix, Tab 3, which resulted in 567 net additional votes for Vice President Gore. Thus, as of today, the Voters' votes have been diluted and continue to be diluted in the certified totals.

Furthermore, Voters are threatened with further dilution of their votes as Vice President Gore has demanded, in the contest procedures filed November 27th, that the results of manual recounts so far conducted in Palm Beach and Miami-Dae Counties, which resulted in 215 and approximately 160 additional net votes for Vice President Gore, respectively, be included in the certified totals. Appellants' Supplemental Request to Take Judicial Notice, Attachment D, ¶ 3(a). As a result, Voters have suffered a constitutional injury.

B. The effect of including the results of the selective manual recounts is to shift the burden of proof to Governor Bush in the contest, resulting in an ongoing constitutional injury.

Furthermore, under Florida law, "there is a presumption that returns certified by election officials are presumed to be correct." Boardman v. Esteva, 323 So.2d 259, 268 (Fla. 1975). As a result, in a contest proceeding, the certification of election returns places the burden "clearly on the contester to establish that the ballots have been irregularly cast." Id. This presumption is sufficiently strong that "ballots cannot be used to impeach an official return made by election managers unless the integrity of the ballots is first clearly established by the person who seeks to use the ballots for the purpose." Burke v. Beasley, 75 So.2d 7, 9 (Fla. 1954).⁽³⁾

As a result, the effect of including the results of manual recounts in the totals certified by the State Defendants is to shift the burden of proof from Vice President Gore to Governor Bush during the contest proceedings as to the validity of these votes. Since who bears the burden of proof often determines the outcome, this mere shift in burden could be outcome determinative. Therefore, it also creates an ongoing constitutional injury to Voters.

C. The use of the Manual Recount Statute here has had a substantial effect on the outcome of the election and has placed in everlasting doubt what was the true result of the election.

Furthermore, using the more demanding standards articulated by Judge Edmondson in Roe I, this Court should decide this case on the merits.

(1) The manual recount of votes has substantially affected the outcome of the election.

While it may not be known for weeks, months or years whether the results of manual recounts are decisive in determining the outcome of this election, there is no doubt that it has had a substantial effect. Governor Bush's current lead would be doubled, if the results of the manual recounts in Volusia and Broward Counties were not included in the totals. Vice President Gore believes that he would have won, if the results of completed manual recounts for Palm Beach and Miami-Dade Counties were included in the totals. In the contest proceedings, Governor Bush now has the burden of proof that the ballots counted in the manual recounts in Broward and Volusia Counties should not be counted. And all of this in the face of a deadline of December 18th when the Electoral College will meet to perform its one act, vote for the President and Vice President of the United States. Thus, the manual recount of votes have had a substantial effect on the outcome of the election.

(2) The controversy surrounding the use of the Manual Recount Statute has placed in everlasting doubt what was the true result of the election.

Finally, it is apparent that, unless this Court decides this appeal on the merits, it will be "impossible ever to know that . . . [the apparent winner] had truly won the election because of the nature of the voting irregularities." Id. at 585. Vice President Gore contests the election because some results of the manual recounts were left out. Governor Bush can file a counter-contest because some results of manual recounts are included. Both have the burden of proof of their claims, and, as a result, both could lose those claims with the result that some results of manual recounts in and are some out.

Furthermore, one candidate can concede, because the burden of proof is too high, or, more likely, because there is just not enough time to prove one's case and to exhaust all of the inevitable appeals. The legitimacy of the winner will forever be in doubt and a Presidency crippled.

Thus, it is clear that "the contested votes, in fact, will make [a] difference [] in the outcome of the elections," and that we are "now facing the kind of extraordinary circumstances - patent and fundamental unfairness tied to concrete harm - that will amount to a constitutional deprivation and that will justify immediate significant federal interference in the election processes of a state." Roe I, 43 F.3d at 586.

D. The constitutional injury to Voters can be redressed, in whole or in part, through this Court's decision on the merits of this appeal.

The Florida Democratic Party, however, argues that, because the certifications of the vote have already been made by the counties and the state election official, "[t]he events Plaintiff-Appellants sought to enjoin have thus occurred," and "there is no 'Case or Controversy' for this Court to resolve." Motion to Dismiss of Intervenor-Appellee Florida Democratic Party at 4.

As support for that argument, the Party cites the relief sought in this Court in Voters' Emergency Motion for Injunction Pending Appeal. Id. at 4-5. This appeal, however, is from the District Court's denial of Voters' Motion for Preliminary Injunction, which requested that both the County and State Defendants be enjoined "from receiving or certifying any vote tallies that include the results of any manual recounts of ballots" and that the State Defendants be enjoined "from certifying the results in the election for electors . . . based in whole or in part of the results of any manual recounts." Proposed Order of Preliminary Injunction at page 3. Furthermore, the Verified Complaint requested that the State Defendants be enjoined "to certify the results of the election . . . based on county-certified results which do not include any manual recounts." Verified Complaint at ¶ (7).

Thus, this case is like United Church of the Medical Center v. Medical Center Commission, 689 F.2d 693 (7th Cir. 1982), where the Seventh Circuit reversed the denial of a preliminary injunction, even though the injury had already occurred. Id. at 701. There, a preliminary injunction was sought to enjoin a statutory requirement that a Church submit to an administrative adjudicatory procedure that denied due process. The Seventh Circuit held that "a constitutional injury sufficient to warrant injunctive relief [occurs if] irreparable injury will follow in the due course of events, even though the party . . . is to be deprived of nothing until the completion of the proceedings." Id. Furthermore, "[t]hat injury has already occurred, and is therefore sufficiently 'immediate' to warrant injunctive relief." Id. Here, a constitutional injury has already occurred by the dilution of the Voters' votes and this Court should similarly reverse the denial of the preliminary injunction.

However, the Voters here are also threatened with future additional injury, as Vice President Gore is seeking, in the contest proceedings, to order "the Elections Canvassing Commission [to] amend its November 26, 2000 certification of the election . . . to include the results of all ballots counted in Broward, Miami-Dade, and Palm Beach Counties, by machine or hand." Supplemental Request, Attachment D, As to Count VIII at ¶ A. It is well established that an injury is redressable if a plaintiff "shows that a favorable decision will relieve a discrete injury to himself. He need not show that a favorable decision will relieve his every injury." Larson v. Valente, 45 U.S. 228, 243 (1982) (emphasis in original). Here, a preliminary injunction will prevent further vote dilution of the Voters' vote.

E. The contest proceedings do not provide an adequate remedy for the constitutional injury suffered by Voters.

County Defendants, however, claim that the contest procedure provides Voters with an appropriate forum "to contest the election result which they claim is erroneous." Brief of Volusia County Defendants at 8. However, the contest procedures are only available to "show that a person other than the successful candidate was the person duly . . . elected." Fla. Stat. § 102.168(3)(e). Obviously, the Voters here cannot make this claim. Furthermore, Voters are not a necessary party to contest proceedings filed by other candidates and, thus, may not file counter-contests. See Fla. Stat. § 102.168(4). Thus, the contest proceedings continue without Voters.

Furthermore, the Voters have an interest in election procedures that transcend this election. While a candidate may be intensely concerned about this election, his interest may wane once this election is concluded. Voters, however, have an interest in future elections, so that their votes will not be diluted through similar manipulation of the Manual Recount Statute. A contest provides no remedy to a federal constitutional challenge to the Manual Recount Statute.

Thus, there is not substitute to a decision of this Court reaching the merits of the Voters' appeal, and Voters urge this Court to render such a decision.

II. Voters Should Prevail on the Merits of Their Appeal.

For the following reasons, Voters should prevail on the merits of their appeal.

A. Voters Have Article III Standing.

Voters have suffered (and are further threatened with imminently suffering) the injury of having their votes diluted through selective manual recounts. Contrary to the assertions of the Florida Democratic Party, Brief of Florida Democratic Party at 25, this is a legally cognizable injury. In Moore v. Ogilvie, 394 U.S. 814, 816-818 (1969), the Supreme Court recited a long line of cases involving only the injury of having one's vote diluted through various state statutory schemes. The Court concluded that a state statutory method for selecting Presidential Electors was unconstitutional for no other reason than it diluted the Voters' votes.

Contrary to this well-settled equal protection principle, the Party asserts that dilution of votes alone is not a cognizable injury, but must be accompanied by an actual disenfranchisement. Brief of Florida Democratic Party at 25. This assertion is contrary to this Court's holding in Roe I, 43 F.3d at 581, in which this Court recognized that vote dilution and disenfranchisement were separate and distinct injuries, each of which gives rise to a denial of equal protection and due process because they "implicate fundamental fairness and the propriety of . . . elections." Id. This Court's understanding follows Supreme Court precedent where the Court has clearly held that "the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise." Reynolds v. Sims, 377 U.S. 533, 555 (1964) (emphasis added). To the extent that Partido Nuevo Progresista v. Perez, 639 F.2d 825 (1st Cir. 1980), can be read to require both dilution and disenfranchisement, it is contrary to this Circuit's controlling precedent in Roe I as well as a long line of Supreme Court precedent and the Florida Democratic Party's reliance on it is unavailing. Brief of the Florida Democratic Party at 27-28.

Furthermore, it is inconsequential that Voters live in a county that did not employ a punch ballot system. The Manual Recount Statute allows candidates and political parties to artificially skew the statewide total, casting doubt on the validity of a statewide election or even changing the result. In this case, the Florida Democratic Party's request for manual recounts in four counties has skewed the results by ignoring sixty-three counties. Of those sixty-three, at least twenty-three employed punch card ballots. See Party Appendix, Tab 13, ¶ 4. Vice President Gore only carried fifteen counties in Florida. Harris Response, Exhibit A. Thus, no matter how its is calculated, the manual recounts in this case, if given effect, will dilute Voters' votes.

B. The Manual Recount Statute Denies Equal Protection.

The Manual Recount Statute permits a sophisticated form of vote dilution and denial of equal protection, by allowing candidates and political parties to artificially skew the statewide vote total by requesting manual recounts in carefully targeted counties where sheer mathematical odds favor the requesting candidate. The Manual Recount Statute's infirmity is compounded by a complete lack of standards for when a county canvassing board should grant a request and a lack of standards for counting votes, leaving that decision to the ever-shifting, post-election whim of the local boards.

The Florida Democratic Party has mischaracterized this Court's holdings in Roe I, 43 F.3d 574, and Roe v. Alabama, 68 F.3d 404 (11th Cir. 1995) ("Roe II"), which, correctly understood, supports Voters' claims and are controlling in this case. The Party incorrectly asserts that "this Court's decisions in the Roe cases depended critically on a finding that the contested ballots did not satisfy the Alabama statutory requirements and were, thus, illegal." Brief of Florida Democratic Party at 35.

In Roe I, this Court upheld a preliminary injunction on the grounds that counting ballots in a particular election contrary to Alabama's past practice diluted the votes of others. Roe, 43 F.3d at 581. This Court then certified a question of state law to the Supreme Court of Alabama to determine whether counting those ballots was required under Alabama law. Id. at 583. The Alabama Supreme Court answered the certified question in the affirmative. Roe III, 68 F.3d at 406. In other words, the ballots did satisfy the requirements of state law and were not "illegal" as the Florida Democratic Party claims.

Notwithstanding the legality of the ballots under state law as interpreted by the Supreme Court of Alabama, this Court held that the voters in Roe succeeded on their dilution claim because counting these ballots was contrary to past practice. Id. at 409. That holding of the Roe cases is directly on point and is controlling where Voters in this case have challenged the Manual Recount Statute because it allows county canvassing boards to adopt post-election standards for counting votes during a manual recount that are contrary to written standards in force on election day and contrary to past practice in counting votes.

C. The Florida Democratic Party has Misrepresented the Holding of Pullen v. Mulligan.

The Florida Democratic Party also asserts that the Illinois Supreme Court in Pullen v. Mulligan, 561 N.E.2d 585, 614 (Ill. 1990), "permitted the counting of indented chads where voters' intent cannot be determined." Brief of Florida Democratic Party at 39. That is untrue. In a section of the opinion entitled "Partially Punctured Ballots" (not indented), the court did mention the possibilities of both "partially dislodged" chads and "strong indentation" chads existing. Pullen, 561 N.E.2d at 609. But in its analysis on discerning voter intent, it consistently spoke only of partially dislodged chad. For example, it said "voters should not be disenfranchised . . . simply because the chad they punched did not completely dislodge from the ballot," i.e., it partially dislodged. Id. at 611 (emphasis added). The court spoke of a "defective ballot" as possibly "attributable to . . . the voter's inability to . . . completely dislodge the chads." Id. at 612 (emphasis added). In the conclusion, the court spoke of having decided "the contention that partially punctured ballots should have been inspected and counted . . . ." Id. at 613 (emphasis added).

Thus, when we get to the point cite the Florida Democratic Party presents, we are not surprised to again see that the court speaks of "ballots with only perforations on the chad," not "strong indentation" chads, as the example of a ballot from which voter intent may be validly discerned. Id. at 614 (emphasis added). Pullen does not stand for the proposition that "strong indentation" chads should be counted, only that the voters intent may be discerned from partially punctured ballots. Incidentally, it should be noted that a Georgia appellate court held that where a voter failed to punch out the chad he has disenfranchised himself. Rary v. Guess, 198 S.E.2d 879 (Ga. App. 1973).

Properly understood, Pullen is consistent with the past practices of Palm Beach and Broward Counties not to count mere indentations as "evidence of intent to cast a vote," requiring at least some partial perforation. Party Appendix, Tab 8, Exhibit A (count "hanging or partially punched" chad, but "an indentation is not evidence of intent to cast a valid vote"); Tab 12, ¶ 7 (perforation is evidence of intent). However, both of these counties have abandoned these standards here post-election.

D. The Supreme Court of Florida has Definitively Construed Florida Law to Allow Selective Manual Recounts under Arbitrary Standards, thus Abstention is not Warranted.

As was the case in the Roe cases, the Supreme Court of Florida has never been asked to address any federal claims regarding the constitutionality of the Manual Recount Statute. It simply interpreted Florida state law. Palm Beach Canvassing Bd. v. Harris, 2000 Fla. LEXIS 2311 at *12, n. 10. According to the Supreme Court of Florida, there is no state-law impediment to selective manual recounts at the request of parties and candidates or against allowing county canvassing boards to change the standards for counting ballots after the election is over. Id. at *27-35. This interpretation was contrary to Secretary Harris's understanding, Harris Merits Brief, but it is the definitive construction of state law. What's more, that construction confirms Voters' worst fears about the undeniable effect the Manual Recount Statute has in stuffing the statewide ballot box. See Roe I, 43 F.3d at 581 ("a retroactive change in the election laws that will effectively "stuff the ballot box, . . . implicating fundamental fairness issues.")

The posture of this case is precisely the same as in Roe I-Roe III, in which this Court rejected the suggestion that it should decline to rule on the merits of the claim out of notions of "comity." Roe III, 68 F.3d at 408. The only question for this Court is whether Florida's scheme denies equal protection of the laws. In violation of the teachings of Roe I-Roe III, the Manual Recount Statute allows partisan candidates to stuff the state-wide ballot box by targeting certain counties for a manual recount and because Florida state law allows local canvassing boards to use ad hoc and ex post facto standards for counting votes after the election.

III. This Court Should Declare The Manual Recount Statute Unconstitutional on the Merits.

Although this case arrives in this court as an appeal from a denial of preliminary injunction, it should be resolved here on its merits. As the United States Supreme Court has held, "if a district court's ruling rests solely on a premise as to the applicable rule of law, and the facts are established or of no controlling relevance, that ruling may be reviewed even though the appeal is from the entry of a preliminary injunction." Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 757 (1986). The propriety of such a procedure is based soundly upon common sense, where the parties "disagree only on questions of law, nothing remains for the district court to resolve regarding the underlying facts." Bank One, Utah, National Association v. Guttau, 190 F.3d 844, 847 (8th Cir. 1999). This Circuit's precedents also show instances where a review of a preliminary injunction resulted in a decision on the merits where it was clear that one side could not prevail. Clements Wire & Manufacturing Company, Inc. v. National Labor Relations Board, 589 F.2d 894 (5th Cir. 1979).

Such is the case here. There are no material factual disputes between the parties. Parties on both sides have moved this Court to take judicial notice of court orders, pleadings, filings, and official compilations by the Secretary of State's Office.⁽⁴⁾ Based on these facts, this Court will be able to determine that the Manual Recount Statute enables candidates and political parties to employ a sophisticated mode of vote dilution, see Reynolds, 377 U.S. at 563, through county-based, selective manual recounts, which artificially skews the statewide vote totals, diluting the votes of Voters and others around the state. Such a scheme is unacceptable under the United States Constitution, and there is no reason not to issue a declaratory judgment to that effect and to issue a permanent injunction.

For the foregoing reasons, the Court should declare manual recount provisions of Fla. Stat. § 102.166 unconstitutional and enjoin County and State Defendants from conducting, certifying, or accepting the results of a manual recount pursuant to this provision.CONCLUSION

For the foregoing reasons, the district court should be reversed and instructed on remand to preliminarily enjoin the State Election Officials and Palm Beach and Miami-Dade County Officials from certifying or accepting returns containing the results of the manual recounts conducted in Palm Beach and Miami-Dade Counties. Furthermore, if this Court reaches the merits, the Secretary of State should be enjoined to issue amended certifications under Fla. Stat. §§ 102.121 and 103.011 excluding the results of the manual recounts in Volusia, Broward, Miami-Dade and Palm Beach Counties.

This brief is printed in 14 point Times New Roman type. This brief contains 4,702 words.