MEMORANDUM IN SUPPORT OF PLAINTIFFS’ EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER OR PRELIMINARY INJUNCTION Plaintiffs Robert C. TOUCHSTON, Deborah SHEPPERD and Diana L. TOUCHSTON, as registered Florida voters who reside in Brevard County, Florida, and who cast their ballot for George W. Bush on November 7, 2000, by counsel and pursuant to Fed. R. Civ. P 65(b), move for a Temporary Restraining Order and Preliminary Injunction against the members of the canvassing boards of the above counties and of the state canvassing board, barring them from conducting, certifying and accepting the results of manual recounts of the votes for Elector for the office of President of the United States.

This action is a challenge to the constitutionality of Fla. Stat. § 102.166(4)(a), both on its face, and as applied to the statewide election for Electors for the Office of President of the United States, which was held on November 7, 2000. Section 102.166 allows a candidate in a statewide election to request a manual recount of ballots cast in counties selected by the candidate. 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. Accordingly, § 102.166 is unconstitutional under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

One form of ballot in common use requires the voter to punch a hole through a card with a stylus. If the vote is properly completed by fully punching out the chad in the ballot, the tabulating machine will count the vote. With this form of ballot, there are two common reasons for the tabulating machine not to count some ballots. First, if more than one hole is punched for the same office, that ballot will not be counted. This is commonly known as an "overvote." A manual recount will not result in counting a ballot that is overvoted in this manner.¹

Second, if the voter failed to complete his or her vote because no hole is punched for a particular office, the tabulating machine will not count the ballot either. This is known as an "undervote." During a manual recount, the county canvassing board may, based on arbitrary standards, "reconstruct" an undervoted ballot, thus adding votes to the total arrived at by machine tabulation. In a close, statewide election, this statutory scheme provides a strong incentive for a candidate to request a manual recount in heavily populated counties where the machine tabulated vote favors the requesting candidate because it will invariably result in the addition of reconstructed undervotes in numbers that disproportionately favor the requesting candidate.

This statutory scheme runs contrary to the Equal Protection Clause in three well-settled ways. First, because the statute is organized around counties, which are populated in a wide range, from very low population to very high population, selective requests by partisan political candidates for manual recounts in heavily populated counties will dilute and debase the vote of those voters in less densely populated areas where no recount is conducted, contrary to the Supreme Court's holding in Reynolds v. Sims, 377 U.S. 533, 562-63 (1964).

Second, by permitting a partisan political candidate in a statewide race to select in which counties to request a manual recount, based on partisan political advantage, section 102.166 allows a candidate to dilute votes in the rest of the state by, in effect, stuffing the statewide ballot box. "[T]he concept of equal protection has been traditionally viewed as requiring the uniform treatment of persons standing in the same relation to the governmental action questioned or challenged." Reynolds, 377 U.S. at 565. Thus, a manual recount in candidate-selected counties results in voters in other counties being subjected to different treatment in relation to the state in a statewide election.

Finally, Plaintiffs and others similarly situated have the right to have their legitimate votes counted. See United States v Lanier, 520 U.S. 259, 270 (citing United States v. Saylor, 322 U.S. 385 (1944); United States v. Mosely, 238 U.S. 383 (1915)). By allowing candidates to request manual recounts in selected counties, and by not requiring a manual recount statewide, more votes will be counted in the candidate-selected counties. The legitimate votes of Plaintiffs and others throughout the state, in the remaining counties, are also subject to machine-tabulation errors, but Plaintiffs do not have the statutory right to ensure that their legitimate votes be tallied by manual recount. Thus, section 102.166 denies Plaintiffs and others the equal protection of the laws.

FACTS

Fla. Stat. § 102.141 provides that, on election night, a county canvassing board shall canvass the returns and certify said returns to the Department of State. (Verified Complaint ("VC") at ¶ 10) . However, if, as is the case here, the returns reflect that a candidate was defeated by one-half of a percent or less of the votes cast for such office, the board responsible for certifying the results of that race shall order a recount of the votes cast for that office. (VC at ¶ 11). In the general election of November 7, 2000, the vote counts for the electors for Vice President Gore were defeated by less that on-half of a percent and, therefore, the Elections Canvassing Commission ordered a recount of that vote. (VC at ¶ 12). Upon the automatic tabulation of the votes in all 67 counties in Florida in this recount, the electors for Governor Bush received a plurality of the vote. (VC at ¶ 13).

Fla. Stat. § 102.166(4)(a), however, also provides that prior to the time the canvassing board certifies the results or within 72 hours after midnight of the date the election was held, whichever occurs later, a candidate may request a manual recount of votes in certain precincts in the county, which results in a third recount of the effected precincts. (VC at ¶ 14). The statutory purpose of the manual recount is to determine if there was "an error in the vote tabulation," Fla. Stat. § 102.166(5), based upon which a ballot may be cast for a candidate which had not been tabulated during the automated tabulation, even though the voter did not complete his or her casting of the ballot by punching out the chad on the ballot for the candidate of the voter’s choice. (VC at ¶ 15).

Vice President Gore requested a manual recount in certain precincts in Volusia, Palm Beach, Broward and Miami-Dade Counties, pursuant to Fla. Stat. § 102.166(4). Governor Bush has not requested a manual recount of any precincts. (VC at ¶ 16). A request for a manual recount is justified where the number of ballots cast does not equal the number of ballots recorded by the vote tabulation system, that is, where the number of ballots cast and the number recorded by the tabulation system cannot be reconciled. See Fla. Stat. § 102.166(5). Upon information and belief, there have been no allegations of an inability in Volusia, Palm Beach, Broward and Miami-Dade Counties to reconcile the number of ballots cast with the number of ballots recorded by the vote tabulation system. (VC at ¶ 17).

Upon information and belief, Vice President Gore requested manual recounts because of higher than expected vote totals by a minor party candidate. Therefore, the reasons provided by Vice President Gore in support of his requests for manual recounts do not justify his requests for manual recounts. See Fla. Stat. § 102.166(5). (VC at ¶ 18). As a result of the request by Vice President Gore, manual recounts were ordered in certain precincts in Volusia, Palm Beach and Broward Counties and, upon information and belief, in Miami-Dade. Exhibit B. Some or all of these manual recounts were authorized after the time period under Fla. Stat. § 102.166(4)(b) had expired for Governor Bush to request a manual recount of votes. (VC at ¶ 19). The registered voters in Volusia, Palm Beach, Broward and Miami-Dade Counties are predominantly registered in the Democratic Party and the voters in these counties voted overwhelmingly for Vice President Gore on election day. (VC at ¶ 20 ).

Furthermore, Volusia, Palm Beach, Broward and Miami-Dade Counties are among the most heavily populated counties in the State of Florida. (VC at ¶ 21). Any manual recount in Volusia, Palm Beach, Broward and Miami-Dade could be expected to produce a greater number of additional votes cast for Vice President Gore than for Governor Bush when ballots are cast for a candidate by the county canvassing board using vague, subjective, arbitrary and capricious tests described below, even though the voter did not complete the casting of his or her ballot by punching through the ballot card. (VC at ¶ 22). The result of these manual recounts has been a net increase in votes for Vice President Gore. (VC at ¶ 23). Furthermore, voters in Brevard County are predominately registered in the Republican Party and voted overwhelmingly for Governor Bush in the 2000 general election. Any manual recount in Brevard County could be expected to produce a greater number of additional votes cast for Governor Bush than for Vice President Gore. In addition, a properly conducted manual recount, using proper standards, can ensure that validly cast ballots are counted, which are occasionally mistakenly not counted by automated tabulation. In the absence of a manual recount in Brevard County and throughout the state of Florida, the validly cast ballots by Plaintiffs and others similarly situated may not be counted. (VC at ¶ 24).

During the manual recount of votes in Palm Beach County, the county canvassing board counted ballots where the voter did not complete the casting of his or her vote by punching out the chad on the ballot for the candidate of the voter’s choice. These votes were not tabulated during the automated tabulation. (VC at ¶ 25). Neither Florida statutes nor Florida case law authorize a canvassing board to count a ballot other than when the voter does complete the casting of his or her vote by punching out the chad on the ballot. (VC at ¶ 26).

During the Palm Beach manual recount, the canvassing board authorized the casting of ballots not counted by automated tabulation. At the beginning of the manual count, the board authorized the counting of ballots when only one of the four corners of the chad was detached. Later, the board decided to use the "sunlight" test – if the sun came thought the indentation, it would be counted. However, during the final counting of the votes, the board rejected the "sunlight" test in favor of returning to the "one corner" test. (VC at ¶ 27).

Upon information and belief, the manual recounts in other counties conducting manual recounts have employed similar "tests" to cast ballots not counted in the automatic tabulations. (VC at ¶ 28). However, when a voter does not complete the casting of his ballot by punching out the chad on the ballot, for instance, by only dislodging one corner, there are two equally valid inferences of the intent of the voter: (1) the voter was so frail and/or clumsy 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, with the result that the voter never intended to vote for the candidate at all. It is arbitrary and capricious for the county Defendants to adopt the first inference over the second. (VC at ¶ 30).

The test employed by the county Defendants to count ballots not counted by automated tabulation were vague, subjective, arbitrary and capricious. (VC at ¶ 30). Under Florida law, counties are required to forward certification of election results to the Department of State by 5:00 p.m. on Tuesday, November 14, 2000. Fla. Stat. § 102.111(1). Based on these compiled certified results, the Florida Elections Canvassing Commission is required to certify the returns of the election and determine and declare who has been elected. Fla. Stat. § 102.111(1). The Department of State shall then give to any person the election of whom is certified by the Elections Canvassing Commission a certificate of the person’s election, which constitutes prima facie evidence of the election of such person. Fla. Stat. § 102.155. If the total number of votes certified by the county defendants includes votes from the manual recounts, Plaintiffs will suffer irreparable harm because the electors for the loser of the election will be certified and will vote for President and Vice President on December 18, 2000. 3 U.S.C. § 7 (2000). There is no procedure available under Florida law to contest this result that will be resolved by December 18, 2000. (VC at ¶ 31). Plaintiff voters will be irreparably harmed if the manual recounts requested by Vice President Gore and authorized by the county Defendants are allowed to be conducted and their totals included in any certification of the vote, and Plaintiff voters have no adequate remedy at law. (VC at ¶ 32).

Plaintiffs satisfy the Eleventh Circuit's requirements for the granting of a motion for a preliminary injunction, because Plaintiffs will show: "(1) a substantial likelihood of success on the merits; (2) a threat of irreparable injury; (3) that its own injury would outweigh the injury to the non-movant; and (4) that the injunction would not disserve the public interest." Tefel v. Reno, 180 F.3d 1286, 1295 (11th Cir. 1999). For a temporary restraining order ("TRO") to issue, the movant must show the same four elements. See Ingram v. Ault, 50 F.3d 898, 900 (11th Cir. 1995).

A. Plaintiffs are Likely to Succeed on the Merits in Obtaining a Declaration that Fla. Stat. § 102.166 Denies Plaintiffs Equal Protection of the Laws by Diluting or Debasing Their Votes.

While the factual circumstances of this case are admittedly unusual, the equal protection principles to be applied are well-settled. Section 102.166 denies Plaintiffs equal protection of the laws, resulting in the dilution and debasement of their votes in the statewide election for Electors.

1. By allowing partisan political candidates in statewide elections to selectively seek a manual recount only in heavily populated counties where the machine tabulated vote favored the candidate, § 102.166 denies equal protection of the laws to voters in counties not selected for manual recount.

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 who receives the most votes statewide will be certified the winner of the state's Electors. According to § 102.166(4)(a) "any candidate whose name appeared 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 the State of 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 state 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.

In Reynolds v. Sims, 377 U.S. 533 (1964), the Supreme Court held that the equal protection clause required that the seats in both houses of a bi-cameral state legislature must be apportioned on a population basis to avoid dilution of votes.

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 . . . .

Id. at 563-63 (quoting Wesbury v. Sanders, 376 U.S. 1 (1964), which held that state apportionment of Congressional seats which "contracts the value of some votes and expands the votes of others" is unconstitutional, since "the Federal Constitution intends that when qualified voters elect members of Congress each vote be given as much weight as any other vote . . . ").

Additionally, the Court in Reynolds relied on its holding in Baker v. Carr, 369 U.S. 186 (1962), in which the Court ruled that an equal protection challenge to a state scheme that apportioned the members of the General Assembly along county lines without regard to the relative population of the counties was a justiciable controversy. Furthermore, in Reynolds, 377 U.S. at 564, the Court favorably quoted Justice Douglas's dissent in MacDougall v. Green, 355 U.S. 281, 288, 290, in which he said:

[A] regulation . . . which discriminates against the residents of the populous counties of a state in favor of rural sections . . . lacks the equality to which the exercise of political rights is entitled under the Fourteenth Amendment.²

With these principles firmly in mind, consider what § 102.166 has allowed Vice President Gore to do in this case. The Vice President has sought to have a manual recount in only four of Florida's sixty-seven counties. The four counties he selected, however, are all among the most densely populated counties in Florida and in each one of them he received a significantly higher proportion of the vote than did his principle opponent, Governor Bush. While the machine count and automatic machine recount revealed that the statewide vote was split nearly evenly between the two, the unofficial results from the second recount in the four counties selected by Mr. Gore reveal that in those counties Mr. Gore received approximately 61 out of every 100 votes cast.

In fact, of the 5,820,069 votes unofficially cast for Mr. Gore and Mr. Bush combined in all 67 of Florida's counties, Broward, Miami-Dade, Palm Beach and Volusia Counties, where the manual recount has been requested, accounted for 1,784,067 votes, or an average of 446,017 votes per county. The other 63 counties account for 4,036,002 votes, or an average of 64,064 votes per county. This is a nearly 7 to 1 ratio! Thus, when considering the overwhelming advantage in the voter ratio in the requested counties compared with the rest of the state, along with the undeniable fact that the voters in those four counties favored Mr. Gore by a wide margin, § 102.166 has allowed Mr. Gore, whether intentionally or not, to attempt to enhance his statewide vote total by selectively reconstructing undervotes in a tiny fraction of counties, but in a way that hugely weighs in his advantage. This operates to the distinct disadvantage of plaintiffs and other voters in the remaining 63 counties of the state where absolutely no undervotes will be reconstructed because no manual recount has been requested. This is especially so for plaintiffs and others who voted for Mr. Bush, since the reconstructed undervote totals in the other 63 counties would offset the disproportionate ratio enjoyed by Mr. Gore in the four counties he has selected.

This sort of 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." Lane v. Wilson, 307 U.S. 268, 275; Gomillion v. Lightfoot, 364 U.S. 339, 342. As we stated in Wesberry v. Sanders, supra:

"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 . . . ."

Reynolds, 377 U.S. at 563 (footnotes omitted).

Section 102.166 allows candidates in statewide elections to employ a sophisticated mode of discrimination among voters based on county population and voter registration resulting in a decided partisan political advantage. Significantly, the Supreme Court has specifically rejected a state scheme for selecting Electors based on a statutory weighting of nominating signatures that favored some counties over others based on population. Moore v. Ogelvie, 394 U.S. 814 (1969). Additionally, the Court struck down a state county-unit system in statewide primary elections:

How then can one person be given twice or ten times the voting power of another person in a statewide election merely because he lives in a rural area or because he lives in the smallest rural county? 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 of the Fourteenth Amendment.

Gray v. Sanders, 372 U.S. 368, 379. The race for Electors is statewide and the Electors will be representing all the voters of Florida, not just those from candidate-selected counties. Thus, § 102.166 denies equal protection of the laws by allowing the votes of some to be more heavily weighted than others based on nothing more than where the voter lives.

In this case, the statute allows Mr. Gore to reconstruct undervotes in heavily populated, predominantly Democratic voting counties, while leaving the valid undervotes in the rest of the state completely uncounted. Section 102.166 denies equal protection of the laws to plaintiffs and other voters similarly situated because "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." Id. at 555.

2. Section 102.166(4)’s systemic and fundamental unfairness lacks due process and results in the dilution of Plaintiffs’ votes.

Federal courts have consistently reached the conclusion that the states should be primarily responsible for regulating their own elections. To do otherwise would "give candidates incentives to bypass the procedures already established." Hutchinson v. Miller, 797 F.2d 1279, 1285 (4th Cir. 1986). However, due process demands federal action in this case because the procedures, and lack thereof, themselves result in the constitutional deprivation of rights. Furthermore, there is no means by which the Plaintiffs may challenge the selective requests for manual recounts, and subsequent granting of manual recounts, nor is there a state procedure in which the Plaintiffs may contest the lack of uniform rules for the manual recounts and the lack of notice to the candidate. Thus, this case involves no mere episodic election irregularity, but a systemic fundamental unfairness and lack of due process which leads to the unconstitutional dilution of their votes. See 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."); see also id. at 1343 (noting fundamental unfairness in Roe v. State of Alabama, 43 F.3d 574 (11th Cir. 1995) where state changed its policy after the election).

The process of voting, whether by machine or absentee ballot, is essentially the process by which a voter expresses his or her intent that a particular candidate represent the voter in the office at issue, subject to the legal principles governing the voting process. That expression of intent is accomplished through the means supplied by the county for that purpose.

Similarly, the process of counting votes, irrespective of the means supplied to the voter for the purpose of voting, is the process of tabulating the individual expressions of the voters’ intentions, as disclosed by the particular means supplied for that purpose, and subject to the legal principles governing the voting process. Voting and counting votes mean, respectively, expressing intent and tabulating those 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 one’s vote counted in a manner consistent with the intent with which it was cast. 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).

Florida Statute § 102.166(4)(c) provides in pertinent part that a "county canvassing board may authorize a manual recount." "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). However, although the Florida Statute delegates power to the county canvassing boards to authorize manual recounts, it does not circumscribe this power in any manner to prevent partisan and unfair decisions.

Not only does § 102.166(4)(c) permit selectivity by the candidate, it compounds the constitutional problem by failing to provide any standards to guide the county canvassing boards in their decisions of whether to grant or deny a request for a manual recount, by failing to provide standard and uniform rules for how votes are to be counted if a manual recount request is granted, and by failing to require notice to opposing candidates and an opportunity for them to be heard. Such opportunity for selectivity and failings to incorporate any standards result in a gross lack of due process.

Statutes which fail to establish standards that are sufficient to guard against the arbitrary and capricious deprivation of liberty interests, or protect against 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."). Conversely, if statutes afford definite, reasonable factors to guide a discretionary agency action, and there is sufficient, competent evidence to support the findings of the agency, its action is not arbitrary or capricious. See, e.g., Hope v. City of Gainesville, 195 So.2d 849 (Fla. 1967). Thus, "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)("It is obvious that the legislative delegation of power to the respondent Commission is totally devoid of any standards whatsoever. It leaves to the Commission the authority to exercise an unlimited discretion in forming its opinion . . . . 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, § 102.166(4), to incorporate any standard or factors by which the county canvassing boards’ discretion could be circumscribed, leads inevitably to the dilution of Plaintiffs’ votes, and therefore is unconstitutional on its face.

a. The selectivity permitted by § 102.166(4)(c) contributes to the lack of due process and results in the dilution of the Plaintiffs’ votes.

Section 102.166(4) permits candidates to selectively request manual recounts in targeted precincts and counties. A candidate can enhance a statewide vote total by requesting boards, consisting of Democrat members, in counties containing a majority of voters that are Democrat, to conduct manual recounts. The statute vests the requesting candidate with absolute discretion over the choice of which "three precincts to be recounted." Fla. Stat. § 102.166(4)(d). A candidate may request a manual recount based on a seeming concern for ballot "irregularities" while really possessing an underlying goal of mining for votes.³

Such a goal is transparent in this case when Vice President Albert Gore, Jr. has selected Democrat counties with Democrat canvassing boards and requested manual recounts in those counties only. It is also important to note that these same counties are counties where he received more votes than Governor George W. Bush. Generally, candidates request recounts in counties where they have less votes than their opponents, and oppose recounts in those counties in which they have more votes so as to minimize the risk of losing votes. Therefore, the inescapable conclusion is that Vice President Albert Gore, Jr. is using § 102.166(4)(c) selectively.

Other states have recognized the potential for misuse of a standardless manual recount procedure. West Virginia’s Code provides a right to a recount where voting was done by electronic voting, but guards against a candidate’s selective use of this right by mandating that five percent of the precincts are initially randomly selected for the manual recount. W. Va. Code, 3-4A-28(4) [1982]. Similar safeguards to circumscribe the misuse of the manual recount procedure for the rehabilitation of votes are not present in Florida’s statutes.

Permitting Vice President Gore to selectively choose in which counties to request manual recounts, and thereby gain a disproportionate number of undervotes in counties with a majority of Democrat voters, and manipulate the vote total until he has the most votes, results in a lack of due process and inevitable dilution of Plaintiffs’ votes.

b. The lack of standards in § 102.166(4) circumscribing the granting or denying of a manual recount contributes to the lack of due process.

Section 102.166(4)(c) not only permits candidates to use Florida’s manual recount procedure selectively, and thereby manipulate vote totals until he or she has the most votes, it also gives sole discretion to the county canvassing boards. The Florida Statutes contain no standards to circumscribe a county canvassing board when exercising its power to grant or deny a manual recount request. Thus, a Democrat board is under no statutory compulsion to deny a Democrat candidate’s request for a manual recount, when such candidate received the most votes in that county, and such request is predicated not upon a failure of the voting tabulation system to accurately count votes, but is simply a transparent desire to mine for votes. However, administrative action cannot violate the fundamental principles of fairness any more than it can impinge on any constitutional right.

Therefore, the county canvassing board’s absolute discretion to authorize or deny manual recounts of votes, without guiding standards or criteria, even when requested by a candidate, contributes to the lack of due process. Such a lack of due process in turn results in the dilution of Plaintiffs’ votes because a canvassing board may arbitrarily allow some votes to be manually recounted while others are not manually recounted.

c. Section 102.166(4)’s lack of standards delineating when to recognize a valid ballot during a manual recount results in different rules being applied and allows a subjective intent test, both of which result in a lack of due process.

The selective targeting permitted by § 102.166(4) allows some ballots to be counted by machine or by hand, depending upon the partisan makeup of the precincts. Thus, within a single county, ballots are not counted in the same manner. Therefore, to guarantee due process, all ballots must be counted only by machine, or all ballots must be counted manually in all counties. Otherwise, the result will be as it is in this case, where no steps were taken to ensure that a valid vote not counted by a machine in a non-manual recount county is ultimately counted. Put another way, a concern about irregularities of machine-cast ballots in one county should also give rise to a concern about machine-cast ballots in other counties, thus necessitating a hand count of all ballots, rather than just in counties advantageous to one candidate.

Not only is there a lack of uniformity in recounting ballots, there is a constitutional deficiency which results from a lack of standards by which to conduct a manual recount. Florida Statute provides that "if the counting team is unable to determine a voter’s intent in casting a ballot, the ballot shall be presented to the county canvassing board for it to determine the voter’s intent." § 102.166(7)(b). Florida Statute § 102.166(4) permits county canvassing boards to manually count ballots, even within the same county, by different rules, thus resulting in a lack of due process. However, only an objective standard does not result in arbitrary and capricious decisions by the county canvassing boards.

The only established objective standard under Florida law for determining a voter’s intent is for the voter to complete the casting of his or her vote by punching out the chad on the ballot for the candidate of the voter’s choice. An objective standard requires a voter to punch the chad all the way through the ballot. An analogous objective standard is one that refuses to count a ballot as cast if a voter throws his or her ballot on the floor before he or she reaches the ballot box – the ballot must be in the box to be counted, not on the floor or on the table. Thus, "[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).

Not only does § 102.166(4) not employ an objective standard, it does not delineate any standard for the manual counting of ballots. When a ballot is ambiguous (the chad is not completely punched through), county canvassing boards attempt to subjectively divine the intent of the voter by employing any one of a number of methods, or a combination of them.⁴ This method is subjective because there are two equally plausible possibilities, and it is arbitrary and capricious to pick one intent over another when faced with an ambiguous ballot. 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.

An ambiguous ballot results in two equally occurring possibilities. The first possibility is that the chad is not punched all the way through because 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. The second equally plausible possibility is that the chad is not punched all the way through because the voter realized he or she made a mistake and stopped, simply changed his or her mind, or accidently put the stylus on the wrong chad, leaving a slight indentation. Therefore, "[t]he intent expressed by them is only such as those expressing it could entertain." Murchie, 79 A. at 903. And if it is impossible to determine which of those two was the one the voter thought he had voted for (or not voted for), the ballot cannot be counted for either candidate. See id. at 904; Fla. Stat. § 101.5614(6) ("if it is impossible to determine the elector’s choice, the elector’s ballot shall not be counted for that office.").

Despite the fact that they are faced with two equal possibilities, § 102.166(4) gives county canvassing boards the power to decide for whom the voter intended to cast a vote for President. In similar situations, where state legislatures have undertaken by fiat to decide the voter’s preference, courts have invalidated such attempts. See Hendon v. North Carolina State Board of Elections, 710 F.2d 177, 180 (4th Cir. 1983) (court finding that the "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) (court finding that legislature’s choice for the voter that his attempted vote for seven or more candidates be counted as a vote for the indicated straight party ticket and disregarded it as attempted vote for the individual candidates whose names were marked, 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 (court invalidating statute that provided in part, "[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 shall be counted either. Like the legislature in Murchie that stated that "when [the voter] fails to comply with some provision of the act (as int his case), it can be found from the facts shown by the ballot that he did not intend to vote as the statute says his vote shall be counted," id. at 903, the county canvassing boards also prescribe the facts that conclusively establish the intent of the voters. However, because § 102.166(4) allows the arbitrary exercise of power, it abridges the rights of the voters and results in a lack of due process, which in turn results in the dilution of their votes.

Thus, where voters have failed to indicate their own choice by completely casting the ballot, § 102.166(4) permits the county canvassing boards to arbitrarily choose for them. The subjective intent standard is not a real standard because it permits any result desired. Nor have the county canvassing boards been consistent in applying their subjective intent standard. The methods employed thus far to determine intent have been all over the board. See Exhibit B attached to Verified Complaint. County boards have been reported to have adopted one set of rules, only to change the rules in mid-count, and then change them a third time. Section 102.166(4), which allows interpretation of ballots to divine subjective intent, thus permits partisan county canvassing boards to be result-oriented. Therefore, due process demands that a recount employ a uniform decision making methodology, uniform rules of counting, applied equally to all counties. Any other approach permits the manipulation of the vote by Vice President Gore, resulting in incomplete ballots being counted and leading to the dilution of the Plaintiffs’ votes.

d. Section 102.166(4)’s failure to provide for notice and an opportunity to be heard contributes to a lack of due process.

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. Florida Statute § 102.166(4) further contributes to a lack of due process because it does not require notice that a manual recount has been requested, nor does the statute provide for the opportunity to be heard. After a manual recount is ordered, the statute provides only for "a reasonable effort to notify each candidate." § 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 re. 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 an opportunity to be heard in this case before a manual recount request may be granted. Id. at 499-500.

The statute permits requests for manual recounts to be filed with the county canvassing boards "prior to the time the canvassing board certifies the results for the office being protested or within 72 hours after midnight of the date the election was held, whichever occurs later." § 102.166(4)(b). The county canvassing board also has the complete discretion to select additional precincts to be manually recounted. § 102.166(4)(d). Once again, no provision is made for the non-requesting candidate to be heard. Furthermore, 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 granting of this request results in the prevention of the non-requesting candidate from countering this granting with requests for additional manual recounts in other precincts or counties. Nor does a candidate possess any course of action if the county board decides to expand the manual recount to other precincts. Thus, the statute sets up the situation of a partisan county canvassing board deciding to manually recount targeted precincts to help enhance the vote tally of a candidate after the favorable results of the candidate-requested manual recount are known, while preventing the opposing candidate from contesting this manual recount or requesting recounts in other counties.

While the candidate may generally be a surrogate to protect the 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, in realistic terms, are the Plaintiff voters. They are possessed of the ultimate interest and it is they whom the Court must give 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, the voter has no recourse even though his vote is diluted. Therefore, where the statute fails to provide adequate procedural due process to the candidate, it also results in a lack of due process to the voters. Such a lack of due process results, because a board may wait to grant a manual recount request until after the 72 hour period has past and may expand it to other precincts, causing undervotes to be counted for the opposing candidate, and therefore leads to the dilution of Plaintiffs’ votes.

3. The Equal Protection Clause of the Fourteenth Amendment safeguards the rights of voters to have their valid votes counted along with the valid votes of other electors.

In addition to protecting a voter's right not to have his or her vote diluted in statewide elections through candidate-selected recounts only in counties that favor the candidate, and the right to be protected against ballot-box stuffing, the Equal Protection Clause 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). Section 102.166, 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 Broward, Miami-Dade, Volusia and Palm Beach County will be counted. This, too denies Plaintiffs and other voters the equal protection of the laws.

Section 102.166 blatantly denies Plaintiffs and other voters the equal protection of the laws by diluting their votes at the behest of a partisan political candidate, and under the arbitrary standards created by county canvassing boards. Section 102.166 results in a lack of due process in at least four different ways, all of which lead to the dilution of Plaintiffs’ votes. Accordingly, there is a substantial likelihood that Plaintiffs will succeed on the merits of their complaint. Section 102.166 should be declared unconstitutional under the equal protection clause of the Fourteenth Amendment and defendants should be enjoined from conducting a manual recount, and from certifying or accepting the results of a manual recount.

B. In the Absence of Preliminary Injunctive Relief, Plaintiffs’ Rights Will be Irreparably Harmed.

"The basis of injunctive relief in the federal courts has always been irreparable harm and inadequacy of legal remedies." Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 506-07 (1959). An injunction is an equitable remedy, requiring that any harm for which the movant seeks relief be "irreparable" before an injunction issues, meaning that the harm must be one that "cannot be undone through monetary remedies." See Ferrero v. Associated Materials Inc., 923 F.2d 1441, 1449 (11th Cir. 1991). Thus, when an injury cannot be adequately compensated or corrected through available legal remedies, the harm is irreparable and deserving of equitable relief by way of an injunction.

"The 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). This right is guaranteed by our Constitution. See United States v. Classic, 313 U.S. 299, 314 (1941) ("The right of the people to choose . . . is a right established and guaranteed by the Constitution and hence is one secured by it to those citizens and inhabitants of the state entitled to exercise the right."). The same Constitution that guarantees the right of the people to vote protects that right from external influences that seek to dilute a particular citizen's vote. See Wesberry v. Sanders, 376 U.S. 1, 17 (1964) (citations omitted) ("Not only can this right to vote not be denied outright, it cannot, consistently with Article I, be destroyed by alteration of ballots, or diluted by stuffing of the ballot box.").

In this case, the infringement on the constitutional protection against vote dilution is an irreparable harm to Plaintiffs. No amount of money can compensate for or correct the weakening of Plaintiffs' votes caused by the candidate-selected manual recount in heavily populated, predominately Democratic counties, and by the vague, subjective, arbitrary, and capricious standards applied to the manual recount. There is no remedy provided by law to ensure that Plaintiffs' votes are not diluted by the standard adopted for the manual recount. By allowing a partisan candidate to choose to recount manually in counties that heavily favor that candidate, and by adopting and applying a subjective standard for determining whether a ballot was completed, the statute has paved the way to allowing a candidate to irreparably harm Plaintiffs by diluting Plaintiffs' votes.

Additionally, the counties are scheduled to certify the results of their canvass to the state commission on November 14, 2000, and the State will certify the statewide result once the overseas absentee ballots are counted. Fla. Stat. § 102.111(1). Once certified by the State, the Electors take office and will cast their vote for President and Vice president on December 18, 2000. 3 U.S.C. § 7 (2000). Due to the dilution of Plaintiffs’ and others’ votes, the wrong Electors may take office and vote for the wrong candidate. This constitutes irreparable harm of the worst kind and obviously cannot be remedied by money damages. While Fla. Stat. 102.168 allows for contests of elections, there is no conceivable way for that procedure to reverse an erroneous certification of Electors before they take office and cast their votes.

C. The Harm that the Plaintiffs will Suffer if the Preliminary Injunctive Relief is Denied Outweighs the Harm that Defendants will Suffer if the Preliminary Injunction is Granted

The balance of harms in this case weighs heavily in favor of Plaintiffs and other similarly situated voters. If the injunction does not issue, Plaintiffs' votes for Elector will be significantly 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 the equal protection of the laws. The state and county defendants have no interest in affording greater weight to these candidate-selected votes than to the votes of similarly situated voters throughout the state. Indeed, as state and county officials, the interests of defendants should be on the side of ensuring that all votes throughout the state are given equal weight. Moreover, because the dilution of the Plaintiffs’ votes may possibly affect the outcome of the election, the wrong candidate will take office. Thus, this factor is heavily in favor of Plaintiffs and a preliminary injunction should be issued.

D. The Public Interest Favors the Granting of Plaintiffs' Motion for a Preliminary Injunction.

There can be no question that the public interest favors the equal weighting of all of the ballots cast in a statewide race. Under the Florida statutory scheme, 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 by selecting only those counties where the candidate stands to achieve a net gain while ignoring those counties in which the candidate stands to suffer a net loss. In the absence of the injunctive relief sought by voter Plaintiffs, 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." Moore, 394 U.S. at 819. Plainitffs' motion for a preliminary injunction should be granted.

For all of the foregoing reasons, Plaintiffs' motion for a temporary restraining order or preliminary injunction should be granted.

____________________________
James Bopp, Jr., Trial Counsel
Heidi K. Meyer
James R. Mason, III.
Eric C. Bohnet
Justin David Bristol
J. Aaron Kirkpatrick
Bopp, Coleson & Bostrom
1 South 6th Street
Terre Haute, IN 47807
Telephone: (812) 232-2434
Facsimile: (812) 235-3685
Lead Counsel for Plaintiffs

Respectfully Submitted

___________________________________
Mathew D. Staver
Bar No. 0701092
Liberty Counsel
210 East Palmetto Avenue
Longwood, Florida 32750
Telephone: (407) 875-0077
Facsimile: (407) 875-0770
Local Counsel for Plaintiffs

Memorandum in Support of Plaintiffs,
Motion for TRO/Preliminary Injunction

I hereby certify that a copy of the foregoing document was on this date served upon all Defendants named herein by hand delivery at the indicated addresses:

Michael McDermott, Ann McFall and Pat Northy
Volusia County Canvassing Board Members
Department of Elections
136 N. Florida Ave
DeLand, Florida 32720-4208

Theresa LePore, Charles E. Burton and Carol Roberts
Palm Beach County Canvassing Board Members
P.B.C. Governmental Center
301 North Olive Ave, Room #105
West Palm Beach, Florida 33401-4795

Jane Carroll, Suzanne Gunzburger and Robert Lee
Broward County Canvassing Board Members
Broward County Governmental Center
115 S. Andrews Ave, Room #102
Ft. Lauderdale, Florida 33301

David Leahy, Lawrence King, Jr. and Miriam Lehr
Miami-Dade County Canvassing Board Members
Stephen P. Clark Center
111 N.W. 1st Street, 19th Floor
Miami, Florida 33128

Katherine Harris, Clay Roberts and Bob Crawford
Election Canvassing Commission members

Serve: Katherine Harris, Secretary of State
Florida Department of State
PL-02, The Capitol
Tallahassee, Florida 32399-0250

Date __________________    ________________________________
                                                Matt Staver
                                                Local Counsel for Plaintiffs

ENDNOTES

¹Other forms ballots likewise result in overvotes and undervotes, albeit for different reasons.

²MacDougal was overruled by Moore v. Ogelvie, 394 U.S. 814 (1969).  The rationale of Justice Douglas's dissent in MacDougal is now the rule of law.

³Florida Statute  § 102.166(5) justifies a manual recount if the number of ballots cast is not equal to the number of ballots tabulated by a machine.

⁴For instance, a county canvassing board may decide that if one corner ("hanging chad") or two corners of the chad are attached to the ballot, this evinces an intent to cast a vote for the candidate.  Or, the board could decide that any indentation, however slight, on the fully attached chad constitutes a vote for the candidate.  Alternatively, the board could find that an indentation or slight mark next to the chad was sufficient to find an intent to vote for the candidate.