No. 00-836 

IN THE 

Supreme Court of the United States 

GEORGE W. BUSH, 

Petitioner, 

v. 

PALM BEACH COUNTY CANVASSING BOARD, et al., 

Respondents. 

On Writ Of Certiorari 
To The Supreme Court Of Florida 

BRIEF FOR PETITIONER 

MICHAEL A. CARVIN 
COOPER, CARVIN & 

ROSENTHAL, P.L.L.C. 
1500 K Street, N.W. 
Suite 200 
Washington, D.C. 20005 
(202) 220-9600 

BARRY RICHARD 
GREENBERG TRAURIG, P.A. 
101 East College Avenue 
Post Office Drawer 1838 
Tallahassee, FL 32302 
(850) 222-6891 
THEODORE B. OLSON 

Counsel of Record 
TERENCE P. ROSS 
DOUGLAS R. COX 
THOMAS G. HUNGAR 
MARK A. PERRY 
GIBSON, DUNN & CRUTCHER LLP 
1050 Connecticut Avenue, N.W. 
Washington, D.C. 20036 
(202) 955-8500 

BENJAMIN L. GINSBERG 
PATTON BOGGS LLP 
2550 M Street, N.W. 
Washington, D.C. 20037 
(202) 457-6000 

[Additional counsel listed on inside front cover] 

Counsel for Petitioner 

GEORGE J. TERWILLIGER III 
TIMOTHY E. FLANIGAN 
MARCOS D. JIMÉNEZ 
WHITE & CASE LLP 
First Union Financial Center 
200 South Biscayne Blvd. 
Miami, Florida 33131 
(305) 371-2700 
JOHN F. MANNING 
435 W. 116th Street 
New York, N.Y. 10027 

WILLIAM K. KELLEY 
Notre Dame Law School 
Notre Dame, Indiana 46556 

BRADFORD R. CLARK 
2000 H Street, N.W. 
Washington, D.C. 20052 

i 

QUESTIONS PRESENTED 

1. Whether post-election judicial limitations on the 
discretion granted by the legislature to state executive 
officials to certify election results, and/or post-election 
judicially created standards for the determination of con- 
troversies concerning the appointment of presidential 
electors, violate the Due Process Clause or 3 U.S.C. § 5, 
which requires that a State resolve controversies relating 
to the appointment of electors under “laws enacted prior 
to” election day. 

2. Whether the state court’s decision, which cannot 
be reconciled with state statutes enacted before the elec- 
tion was held, is inconsistent with Article II, Section 1, 
clause 2 of the Constitution, which provides that electors 
shall be appointed by each State “in such Manner as the 
Legislature thereof may direct.” 

3. What would be the consequences of this Court’s 
finding that the decision of the Supreme Court of Florida 
does not comply with 3 U.S.C. § 5? 

ii 

PARTIES TO THE PROCEEDING 

The following individuals and entities are parties to 
the proceeding in the court below: 

Governor George W. Bush, as candidate for Presi- 
dent; Katherine Harris, as Secretary of State, State of 
Florida; Katherine Harris, Bob Crawford, and Laurence 
C. Roberts, as members of the Florida Elections Can- 
vassing Commission; Matt Butler; Palm Beach County 
Canvassing Board; Broward County Canvassing Board; 
Broward County Supervisor of Elections; Robert A. 
Butterworth, as Attorney General, State of Florida; Flor- 
ida Democratic Party; and Vice President Albert Gore, 
Jr., as candidate for President. 

iii 

TABLE OF CONTENTS 

Page 

QUESTIONS PRESENTED...............................................i 

PARTIES TO THE PROCEEDING .................................ii 

TABLE OF AUTHORITIES............................................. vi 

OPINIONS BELOW ...........................................................1 

JURISDICTION ..................................................................1 

CONSTITUTIONAL PROVISIONS AND 
STATUTES INVOLVED...................................................2 

STATEMENT OF THE CASE..........................................2 

I. The 2000 Presidential Election............................3 

A. The Election Laws Of Florida As Of 

November 7, 2000..........................................3 

B. The Presidential Election In Florida 

And The Tabulation Of Votes ......................6 

II. The Litigation At Issue .........................................8 

A. The Trial Court’s Decisions ..........................8 

B. Proceedings In The Florida Su-preme 

Court ................................................................9 

III. Events Since The Petition Was Filed................11 

SUMMARY OF ARGUMENT.......................................12 

ARGUMENT.....................................................................15 

I. The Judgment Of The Florida Supreme 
Court Should Be Vacated Because It 
Does Not Comply With 3 U.S.C. § 5................17 

iv 

A. State Court Determinations Regard- 
ing Controversies Over The Ap- 
pointment Of Presidential Electors 
Lack Conclusive Effect Unless They 
Implement Legal Rules Enacted 
Before The Election .....................................17 

B. The Decision Below Announces 

New Rules Of Law And Timetables 
To Govern Controversies And Con- 
tests Concerning Florida’s Appoint- 
ment Of Presidential Electors .....................19 

C. The Florida Supreme Court’s Deci- 
sion Also Upsets The Policy Choice 
Made By Congress In 3 U.S.C. § 5............27 

D. Because The Judgment Below Does 

Not Comply With 3 U.S.C. § 5, It Is 
Not Binding On Congress Or The 
Elections Canvassing Commission ............29 

II. The Florida Supreme Court’s Decision 
Violates Article II Of The Constitution 
Of The United States...........................................36 

A. The Framers Vested The Authority 

To Determine The Manner For The 
Appointment Of Presidential Elec- 
tors In The State Legislatures .....................37 

B. In The Absence Of Express Legisla- 
tive Direction, The State Executive 
And Judicial Branches Are 
Constitutionally Prohibited From 
Engrafting Material Changes Onto 
The Manner Of Appointing Presi- 
dential Electors .............................................40 

v 

C. The Florida Supreme Court Has Not 

Been Granted Authority To 
Determine The Manner Of Appoint- 
ing Presidential Electors..............................43 

D. As A Result Of Its Unconstitutional 

Arrogation Of Power, The Florida 
Supreme Court’s Decision Is A Nul- 
lity .................................................................48 

CONCLUSION..................................................................50 

vi 

TABLE OF AUTHORITIES 

CASES Page(s) 

Anderson v. Celebrezze, 460 U.S. 780 
(1983) ............................................................................16 

Beckstrom v. Volusia County Canvassing 

Bd., 707 So. 2d 720, 725 (Fla. 1998).................. 32, 33 

Black v. Cutter Labs., 351 U.S. 292 (1956) .....................2 

Boardman v. Esteva, 323 So. 2d 259 (Fla. 
1975)..............................................................................32 

Bolden v. Potter, 452 So. 2d 564 (Fla. 1984)...................6 

Buckley v. Valeo, 424 U.S. 1 (1976)................................17 

Burroughs v. United States, 290 U.S. 534 
(1934) ............................................................................15 

California v. Superior Court of California, 
482 U.S. 400 (1987) .......................................32, 49, 50 

Carmell v. Texas, 120 S. Ct. 1620 (2000) ......................20 

Caspari v. Bohlen, 510 U.S. 383 (1994).................. 20, 21 

Chapman v. Goodnow’s Adm’r, 123 U.S. 
540 (1887).......................................................................2 

Chappell v. Martinez, 536 So. 2d 1007 (Fla. 
1988)....................................................................... 22, 23 

Clinton v. City of New York, 524 U.S. 417 
(1998) ............................................................................36 

Cousins v. Wigoda, 419 U.S. 477 (1975)........................16 

Ex Parte Siebold, 100 U.S. 371 (1879)...........................49 

vii 

Ex Parte Young, 209 U.S. 123 (1908).............................49 

Foster v. Love, 522 U.S. 67 (1997) .................................36 

Gunn v. Barry, 82 U.S. 610 (1872) .................................49 

Hawke v. Smith, 253 U.S. 221 (1920).............................41 

Lindsey v. Washington, 301 U.S. 397 (1937).................20 

Market Street Ry. Co. v. Railroad Comm’n, 
324 U.S. 548 (1945) ......................................................2 

Martin v. Hunter’s Lessee, 14 U.S. 304 
(1816) ............................................................................44 

McClendon v. Slater, 554 P.2d 774 (Okla. 
1976), cert. denied, 429 U.S. 1096 
(1977) ..................................................................... 40, 46 

McPherson v. Blacker, 146 U.S. 1 (1892)..............passim 

Milliken v. Bradley, 418 U.S. 717 (1974).......................49 

New Mexico ex re. Ortiz v. Read, 524 U.S. 
151 (1998).....................................................................32 

Parsons v. Ryan, 60 P.2d 910 (Kan. 1936).....................46 

Ray v. Blair, 343 U.S. 214 (1952) ...................................38 

Reynoldsville Casket Co. v. Hyde, 514 U.S. 
749 (1996).....................................................................49 

Roe v. Alabama, 43 F.3d 574 (11th Cir. 
1995)..............................................................................28 

Russello v. United States, 464 U.S. 16 
(1984) ..................................................................... 42, 43 

St. Martin Evangelical Lutheran Church v. 

South Dakota, 451 U.S. 772 (1981) ..........................44 

viii 

State ex rel. Beeson v. Marsh, 34 N.W.2d 
279 (Neb. 1948) ...........................................................40 

Steel Co. v. Citizens for a Better 

Environment, 523 U.S. 83 (1998)..............................49 

Street v. New York, 394 U.S. 576 (1969)..........................2 

Teague v. Lane, 489 U.S. 288 (1989)....................... 20, 21 

U.S. Term Limits, Inc. v. Thornton, 514 U.S. 
779 (1995)........................................................39, 40, 43 

United States v. Brown, 381 U.S. 437 (1965)................26 

United States v. Harris, 106 U.S. 629 (1883)................26 

United States v. State of Florida, Civ. No.: 

TCA-80-1055 (N.D. Fla. Apr. 2, 1982) ......................6 

Williams v. Rhodes, 393 U.S. 23 (1968).........................16 

Constitution & Statutes 

U.S. CONST. art. I, § 2, cl. 1 .............................................37 

U.S. CONST. art. I, § 2, cl. 4 .............................................42 

U.S. CONST. art. I, § 3, cl. 1 .............................................37 

U.S. CONST. art. I, § 4, cl. 1 .............................................42 

U.S. CONST. art. I, § 5, cl. 1 .............................................36 

U.S. CONST. art. I, § 8, cl. 16 ...........................................41 

U.S. CONST. art. I, § 10, cl. 2 ...........................................41 

U.S. CONST. art. II, § 1.................................. 15, 16, 34, 37 

U.S. CONST. art. II, § 1, cl. 1............................................14 

U.S. CONST. art. II, § 1, cl. 2..................16, 25, 34, 35, 38 

U.S. CONST. art. II, § 1, cl. 4............................................15 

ix 

U.S. CONST. art. IV, § 2, cl. 2 ................................... 32, 42 

U.S. CONST. art. IV, § 4 ....................................................42 

U.S. CONST. art. V.............................................................42 

U.S. CONST. art. VI, cl. 2 ..................................................42 

U.S. CONST. amend. XII ............................................ 16, 37 

U.S. CONST. amend. XVII................................................37 

2 U.S.C. § 7 ........................................................................36 

3 U.S.C. §§ 1-15 ......................................................... 13, 17 

3 U.S.C. § 2 ................................................................. 34, 35 

3 U.S.C. § 5 ................................................................passim 

3 U.S.C. § 6 ........................................................................30 

3 U.S.C. § 7 ........................................................................25 

3 U.S.C. § 15 ............................................................... 20, 31 

18 U.S.C. § 3182................................................................32 

28 U.S.C. § 1257..................................................................1 

Fla. Stat. § 102.111.............. 4, 5, 7, 10, 11, 22, 23, 24, 44 

Fla. Stat. § 102.111(1)............................................4, 44, 45 

Fla. Stat. § 102.112....................................................passim 

Fla. Stat. § 102.112(1)................................. 4, 5, 22, 44, 45 

Fla. Stat. § 102.121............................................................43 

Fla. Stat. § 102.141..............................................................4 

Fla. Stat. § 102.141(4).....................................................2, 5 

Fla. Stat. § 102.166(1)-(3) ..................................................5 

Fla. Stat. § 102.166(4)(a)-(c)..............................................5 

x 

Fla. Stat. § 102.166(4)-(10)............................................5, 7 

Fla. Stat. § 102.166(7)(a) ....................................................5 

Fla. Stat. § 102.166(7)(b)................................................5, 7 

Fla. Stat. § 102.168....................................................... 6, 24 

Fla. Stat. § 102.168(2).........................................................6 

Fla. Stat. § 102.168(3)-(8) ..................................................6 

Fla. Stat. § 102.168(5).........................................................6 

Fla. Stat. § 103.011....................................................... 6, 43 

Other Authorities 

Act of Feb. 3, 1887, ch. 90, § 2, 24 Stat. 373.................18 

18 CONG. REC. 30 (Dec. 7, 1886)............................. 17, 18 

18 CONG. REC. 47 (Dec. 8, 1886).......................18, 19, 27 

2 The Records of the Federal Convention of 
1787 501 (Max Farrand, ed. 1966)............................38 

BLACK’S LAW DICTIONARY 890 (7th ed. 
1999)..............................................................................26 

Counting the Vote; Statements on the 

Certification of Florida's Votes, N.Y. 
TIMES, Nov. 27, 2000..................................................12 

David P. Currie, The Constitution in 

Congress (University of Chicago Press) 
138.................................................................................39 

Senate Rep. 1st Sess. 43 Cong. No. 395 .........................40 

The Federalist, No. 68 (Alexander 

Hamilton) (Clinton Rossiter ed., 1961)........37, 38, 39 

BRIEF FOR PETITIONER 

On November 7, 2000, the Nation’s quadrennial 
presidential election was conducted throughout the 
United States. The apparent results of the State-by-State 
returns indicate that the candidate who receives the 
Electoral College votes of Florida will, on December 18, 
2000, receive a majority of the votes of the electors ap- 
pointed by the various States and will thereafter become 
the next President of the United States. 

On November 21, 2000, the Supreme Court of Flor- 
ida issued an equitable decree altering Florida’s methods 
and timetables for the determination of controversies re- 
garding the appointment of presidential electors. That 
decree has interjected unwarranted but serious questions 
concerning the selection of Florida’s presidential elec- 
tors that threaten to undermine and cloud the outcome of 
the election in that State. Because that equitable decree 
is inconsistent with federal law and the Constitution of 
the United States, petitioner respectfully prays that this 
Court vacate the judgment below. 

OPINIONS BELOW 

The opinion of the Supreme Court of Florida (Pet. 
App. 1a-38a) is not yet reported. The orders of the Cir- 
cuit Court for the County of Leon, Florida (Pet. App. 
42a-43a & 44a-50a) are not reported. 

JURISDICTION 

The judgment of the Supreme Court of Florida was 
entered on November 21, 2000. The petition for a writ 
of certiorari was filed on November 22, 2000 and 
granted on November 24, 2000. The jurisdiction of this 
Court rests upon 28 U.S.C. § 1257. 

The judgment below amounts to the entry of a per- 
manent injunction against state election officials and is 
therefore “final” for purposes of this Court’s certiorari 

2 

jurisdiction. Market Street Ry. Co. v. Railroad Comm’n, 
324 U.S. 548, 551 (1945). Petitioner expressly raised 
below the federal questions on which the Court has 
granted certiorari. See Pet. 9-10. The Florida Supreme 
Court’s failure to address petitioner’s federal claims, and 
its assertion that “[n]either party has raised as an issue 
on appeal the constitutionality of Florida’s election 
laws” (Pet. App. 10a n.10), are therefore no barrier to 
review by this Court. Street v. New York, 394 U.S. 576, 
583 (1969); Black v. Cutter Labs., 351 U.S. 292, 298 
(1956). State courts cannot evade this Court’s review by 
failing to discuss federal questions. Chapman v. Good- 
now’s Adm’r, 123 U.S. 540, 548 (1887). 

CONSTITUTIONAL PROVISIONS 
AND STATUTES INVOLVED 

Pursuant to this Court’s Rule 24.1(f), the pertinent 
constitutional and statutory provisions are reproduced in 
the appendix to this brief. 

STATEMENT OF THE CASE 

On Tuesday, November 7, 2000, the citizens of the 
several States, including Florida, cast their votes for the 
electors for President and Vice President of the United 
States. The official initial count of the ballots cast in 
Florida showed that the Republican Party candidates, 
Governor George W. Bush and Secretary Dick Cheney, 
received more votes than their principal opponents in the 
election, Democratic Party candidates Vice President 
Albert Gore and Senator Joseph Lieberman, subject to 
the counting of overseas absentee ballots. Because the 
margin of victory was less than one-half of one percent, 
however, a statewide recount commenced. See Fla. Stat. 
§ 102.141(4). The statewide recount, and the tabulation 
of overseas absentee ballots on November 18, 2000, 
while reflecting slightly different tabulation totals, each 
confirmed that Governor Bush and Secretary Cheney re- 
ceived the most votes. 

3 

On November 8, 2000, the Florida Democratic Party 
sought additional recounts by hand in four heavily popu- 
lated, predominantly Democratic counties. The Florida 
Supreme Court thereafter issued a decree extending by 
twelve days the seven day statutorily imposed deadline 
to submit certified vote tabulations including the results 
of these recounts. Pursuant to that extended deadline, on 
November 26, the totals were again tabulated, and Gov- 
ernor Bush and Secretary Cheney were again determined 
to have received the most votes. The Florida Elections 
Canvassing Commission proceeded on November 26, 
2000, to certify them as the victorious candidates in the 
statewide presidential election. Those certified results 
include tabulations that reflect manual recounts that 
were conducted solely as a result of the Florida Supreme 
Court decision under review here. 

Vice President Gore and Senator Lieberman have 
filed a lawsuit in Leon County Circuit Court to contest 
the certified election results. The Florida Supreme 
Court’s decision, which conflicts with both federal stat- 
utes and the federal Constitution, will thus continue to 
affect, and has the theoretical potential to change, the 
outcome of the presidential election in Florida, and thus 
the Nation. Reversal by this Court would restore the 
legislatively crafted method for appointing electors in 
Florida to its status prior to November 7, would allow 
the completion of the proper selection of presidential 
electors in Florida according to the plan contemplated 
by the Constitution, and would aid in bringing legal fi- 
nality to this election. 

I. The 2000 Presidential Election 

A. The Election Laws Of Florida As Of No- 
vember 7, 2000 

Prior to November 7, 2000, pursuant to the authority 
conferred on it by Article II of the Constitution and 3 
U.S.C. § 5, the Florida legislature had enacted a com- 
prehensive and carefully interwoven statutory plan and 

4 

set of procedures and timetables to govern the appoint- 
ment of presidential electors, the conduct of elections, 
and the bringing and resolution of controversies and 
contests related thereto. 

On the first Tuesday after the first Monday in No- 
vember during a presidential election year, Florida holds 
an election in each of its sixty-seven counties for the 
purpose of selecting presidential electors. Following the 
election, each county’s canvassing board is responsible 
for counting and certifying the returns and forwarding 
them to the Florida Department of State. See Fla. Stat. § 
102.141. “[A]s soon as the official results are compiled 
from all counties,” the statewide Elections Canvassing 
Commission—comprising the Governor, the Secretary 
of State, and the Director of the Division of Elections— 
is required to “certify the returns of the election and de- 
termine and declare who has been elected for each of- 
fice.” Fla. Stat. § 102.111(1). 

Florida statutes specify a clear deadline by which 
counties must certify their returns to the Department of 
State. As the Florida Supreme Court itself put it in this 
case, “t he deadline set forth in section 102.111(1), Flor- 
ida Statutes (2000), requir[es] that all county returns be 
certified by 5 p.m. on the seventh day after an election.” 
Pet. App. 4a. Section 102.111 underscores the firmness 
and importance of this deadline by providing that “[i]f 
the county returns are not received by the Department of 
State by 5 p.m. of the seventh day following an election, 
all missing counties shall be ignored, and the results 
shown by the returns on file shall be certified.” Fla. 
Stat. § 102.111(1) (emphasis added). Another provision 
of the election code, Fla. Stat. § 102.112, reiterates the 
requirement that county “[r]eturns must be filed by 5 

p.m. on the 7th day following the . . . general election.” 
Fla. Stat. § 102.112(1) (emphasis added). Using differ- 
ent terminology, § 102.112 states: “If the returns are not 
received by the department [of State] by the time speci- 
fied, such returns may be ignored and the results on file 

5 

at that time may be certified by department.” Fla. Stat. 
§ 102.112(1) (emphasis added). 

Prior to the seven-day certification deadline, Florida 
law provides for recount of the votes in close races when 
the margin of victory is less than one-half of one per- 
cent. See Fla. Stat. § 102.141(4). In addition to this 
provision, the legislature has provided that disputes over 
election results may be raised by submitting a “protest” 
to the county canvassing boards, see Fla. Stat. 
§ 102.166(1)-(2), and/or a request for a manual recount, 
see Fla. Stat. § 102.166(4)-(10).1 A protest must be 
lodged prior to the time the county canvassing board 
certifies the results or within five days after midnight of 
the date of the election, whichever occurs later. A re- 
quest for a manual recount must be filed prior to the 
time the county canvassing board certifies the results or 
within 72 hours of midnight of the date of the election, 
whichever occurs later. 

As of November 7, 2000, no provision of Florida 
law exempted the manual recount process from the 
seven-day certification deadline imposed by §§ 102.111 
and 102.112. Thus, under the statutory scheme in effect 
on the date of the election, protest and recount proce- 
dures had to be completed before the seven-day deadline 
in order to be reflected in the county canvassing board’s 
election returns, and the statutes expressly declared that 
county returns not received by the Secretary of State 

1 County canvassing boards are authorized, but not re- 
quired, to grant requests for a manual recount. See Fla. Stat. 
§ 102.166(4)(a)-(c). If the canvassing board chooses to em- 
bark on a manual recount, the board “shall appoint as many 
counting teams of at least two electors as is necessary to 
manually recount the ballots,” Fla. Stat. § 102.166(7)(a), and 
“[i]f 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,” id. at 
(7)(b). 

6 

prior to the deadline (5:00 p.m. on November 14 in this 
case) “may be ignored.” Fla. Stat. §§ 102.112. 

After certification, candidates and voters may con- 
test the certification of an election by filing a complaint 
in Leon County Circuit Court. See Fla. Stat. §§ 102.168, 
102.1685. Such contests must be initiated within 10 
days of the certification, see Fla. Stat. § 102.168(2). The 
contest process involves extensive judicial proceedings, 
including formal pleadings, discovery, trial, and appeals. 
See Fla. Stat. § 102.168(3)-(8); Bolden v. Potter, 452 So. 
2d 564, 565-66 (Fla. 1984). 

B. The Presidential Election In Florida And 

The Tabulation Of Votes 

On November 8, 2000, the Florida Secretary of 
State announced that Governor Bush and Secretary Che- 
ney had received the most popular votes in the previous 
day’s election by a narrow margin. Those results were 
not certified, however, because the slim margin of vi c- 
tory triggered the recount provision of Florida law, and 
because of the need to receive and count overseas absen- 
tee ballots.2 

On November 14, the results of the recount were 
announced: Governor Bush and Secretary Cheney had 
received the most popular votes for President and Vice 
President in the Florida election. The Florida Secretary 
of State announced her intention to proceed with certifi- 
cation of the results of the election upon receipt and 
tabulation of the overseas ballots.3 On November 17, 

2 Under a federal consent decree, Florida must allow ten 
days from the date of the election for overseas absentee bal- 
lots to be received. See United States v. Florida, Civ. No. 
TCA-80-1055 (N.D. Fla. Apr. 2, 1982). 

3 The Florida legislature has assigned the task of certifying 
the results of presidential elections to the Department of 
State. See Fla. Stat. § 103.011. County canvassing boards 

7 

2000, however, before the overseas ballots could be 
tabulated and the election results certified, the Florida 
Supreme Court sua sponte issued a stay order enjoining 
the Secretary of State and the Elections Canvassing 
Commission from proceeding with certification. Pet. 
App. 39a-40a. 

In the interim, respondent Florida Democratic Party 
had filed protests in four counties: Broward, Miami- 
Dade, Palm Beach, and Volusia. Respondent requested 
that the ballots cast in those selected counties—each 
heavily Democratic—be recounted by hand under the 
manual recount provisions of the protest section of the 
Florida Election Code set forth in Fla. Stat. 
§ 102.166(4)-(10). 

The Florida statute governing manual recounts con- 
tains no standards describing how manual recounts will 
be conducted or guidelines concerning the means by 
which a voter’s intent will be ascertained. The four 
counties thus embarked upon various paths in attempting 
to divine the “voter’s intent.” Fla. Stat. § 102.166(7)(b). 
Counties adopted conflicting guidelines for reviewing 
ballots, and changed their own guidelines and standards 
repeatedly throughout the recounting process. The con- 
fusion, bordering on chaos, that developed during these 
selectively focused manual recounts has been well- 
publicized. The manual recounts followed two me- 
chanical counts of punch-card ballots in three of the 
counties and considerable hand examination of the 
physical ballots. Review of punch-card ballots pro- 
ceeded from analysis of the degree to which punch-card 

initially certify their local election results and forward them 
to the Department of State. The Elections Canvassing Com- 
mission, of which the Secretary of State is a member, is then 
charged with certifying the overall returns of the election and 
declaring who has been elected to office. See Fla. Stat. § 
102.111. 

8 

ballots had been perforated to examination for voter in- 
tent of indentations (“dimples”) on the ballots. 

II. The Litigation At Issue 

After the Secretary of State announced her decision 
to certify the election results on November 14, 2000 
without including the results of manual recounts submit- 
ted after the statutory deadline, Volusia County sued the 
Secretary and the Elections Canvassing Commission 
seeking to extend the November 14 limit on the time 
within which to submit county returns. Palm Beach 
County, the Florida Democratic Party, and Vice Presi- 
dent Gore intervened as plaintiffs; Governor Bush and 
others intervened as defendants. 

A. The Trial Court’s Decisions 

On November 14, 2000, the Circuit Court for Leon 
County held that the Secretary had discretion to ignore 
returns received after the statutory deadline. The court 
held that “the County Canvassing Boards must certify 
and file what election returns they have by the statutory 
deadline of 5:00 p.m. of November 14, 2000, with due 
notification to the Secretary of State of any pending 
manual recount, and may thereafter file supplemental or 
corrective returns,” and also held that “[t]he Secretary of 
State may ignore such late filed returns . . . by the proper 
exercise of discretion after consideration of all appropri- 
ate facts and circumstances.” Pet. App. 45a. The court 
reasoned that, under the language of Fla. Stat. 
§ 102.112, “[t]hat the Secretary may ignore late filed re- 
turns necessarily means that the Secretary does not have 
to ignore such returns. It is, as the Secretary acknowl- 
edges, within her discretion.” Id. at 48a. 

After the trial court’s order was announced, the Sec- 
retary of State asked counties interested in submitting 
returns after the deadline to provide her with written ex- 
planations of their reasons for doing so by 2:00 p.m. on 
Wednesday, November 15. J.A. 39. After receiving 

9 

submissions from four counties, the Secretary of State 
exercised her discretion and concluded that insufficient 
reasons had been given to justify extending the deadline 
to include the results of manual recounts not yet com- 
plete. J.A. 21-38. 

Vice President Gore and others then asked the trial 
court to issue an order directing the Secretary to waive 
the statutory deadline and allow late results from three 
counties—Broward, Miami-Dade, and Palm Beach—to 
be included in the final vote tally. (The Volusia County 
manual recount was completed and the results submitted 
prior to the deadline.) 

On November 17, 2000, the Circuit Court for Leon 
County issued its second decision, rejecting Vice Presi- 
dent Gore’s request to waive the statutory deadline. Pet. 
App. 42a-43a. The court held that the Secretary of State 
had not violated its November 14 order and explained 
that “the Secretary has exercised her reasoned judgment 
to determine what relevant factors and criteria should be 
considered, applied them to the facts and circumstances 
pertinent to the individual counties involved, and made 
her decision.” Pet. App. 43a. 

B. Proceedings In The Florida Supreme 

Court 

Vice President Gore and Broward and Palm Beach 
counties appealed from the Leon County Circuit Court’s 
decision that the Secretary of State had not abused her 
discretion in declining to include in the statewide tabula- 
tion results from manual recounts filed after the 5:00 

p.m. November 14 deadline. On Friday, November 17, 
2000, without the benefit of briefing or argument, the 
Florida Supreme Court sua sponte enjoined the Secre- 
tary of State and the Elections Canvassing Commission 
from certifying the November 7 presidential election re- 
sults for the State of Florida until further order of the 
court. Pet. App. 39a-40a. 

10 

The following day, November 18, 2000, the results 
of the absentee balloting were announced. Governor 
Bush and Secretary Cheney were once again found to 
have received more votes than their opponents. 

On the evening of November 21, 2000, the Florida 
Supreme Court issued its opinion reversing the orders of 
the trial court. Pet. App. 1a-38a.4 The Florida Supreme 
Court held that the trial court had “erred in holding that 
the Secretary [of State] acted within her discretion in 
prematurely rejecting any amended returns that would 
be the result of ongoing manual recounts.” Pet. App. 
34a. The court determined that the language of Fla. Stat. 
§§ 102.111 and 102.112, which provide that county can- 
vassing boards “must . . . file[]” their returns by 5:00 

p.m. on the seventh day following the election and that 
late-filed returns “may be ignored” or “shall be ignored” 
by the Elections Canvassing Commission did not con- 
trol. The Florida Supreme Court concluded that the 
question before it was “whether the Commission must 
accept a return after the seven-day deadline set forth in 
sections 102.111 and 102.112,” Pet. App. 14a (emphasis 
added), and answered this question in the affirmative. 

The Florida Supreme Court rejected “hyper- 
technical reliance upon statutory provisions” in resolv- 
ing the controversy. Pet. App. 8a; id. at 31a (“Technical 
statutory requirements must not be exalted over the sub- 
stance of [the] right [of suffrage].”); id. at 36a (“the will 
of the electors supersedes any technical statutory re- 
quirements”). The court concluded that while it har- 

4 The supreme court consolidated the appeal with an origi- 
nal action in which the court was asked to resolve the conflict 
between two executive branch opinions concerning the Palm 
Beach County Canvassing Board’s authority to conduct a 
manual recount. The court ultimately dismissed the original 
petition, but expressly stated in its opinion that the Palm 
Beach board had authority to conduct the county-wide man- 
ual recount. Pet. App. 2a n.1, 13a. 

11 

bored “reluctance to rewrite the Florida Electon Code, 
we conclude that we must invoke the equitable powers 
of this Court to fashion a remedy that will allow a fair 
and expeditious resolution of the questions presented 
here.” Id. at 37a-38a. On this basis, the court then an- 
nounced that the Secretary’s discretion to ignore un- 
timely election returns under Fla. Stat. §§ 102.111 and 
102.112, could only be exercised “if the returns are 
submitted so late that their inclusion will preclude a 
candidate from contesting the certification or preclude 
Florida’s voters from participating fully in the federal 
electoral process.” Pet. App. 35a. 

The Florida court thus announced that the Novem- 
ber 14 deadline for accepting county election returns 
was inoperative in this election and directed the Secre- 
tary of State and the Elections Canvassing Commission 
to accept manual recount returns through 5:00 p.m. on 
Sunday, November 26, 2000. Pet. App. 37a-38a. 
Moreover, the court maintained its injunction preventing 
the Elections Canvassing Commission from certifying 
any election results until that date, and directed the 
Commission to include in its certified election results all 
manual recount returns received by that date. Id. at 38a. 

III. Events Since The Petition Was Filed 

As noted above, the Florida Supreme Court’s deci- 
sion announced a new deadline of 5:00 p.m. on Nove m- 
ber 26, 2000, for all counties to submit amended returns, 
including the results of any manual recounts. Thereaf- 
ter, the Miami-Dade County Canvassing Board voted 
unanimously not to proceed with a manual recount. The 
manual recount was completed in Broward County. 
Palm Beach County did not complete its manual recount 
before Florida Supreme Court’s November 26, 2000 
5:00 p.m. deadline. 

On the evening of November 26, 2000, as directed 
by the court below, all counties with outstanding results 
submitted election returns to the Secretary of State. 

12 

Governor Bush and Secretary Cheney once again were 
determined to have received the most votes. That same 
evening, the Elections Canvassing Commission certified 
the results and formally declared Governor Bush the 
winner of Florida’s 25 Electoral College votes. Upon 
announcing the certified results, the Secretary of State 
explained why certification had been delayed: 

It was and it remains my opinion that the appro- 
priate deadlines for filing certified returns in this 
election are those mandated by the Legislature. 
And it remains my opinion that the proper re- 
turns in this election are the returns that were 
certified by those deadlines. The Florida Su- 
preme Court, however, disagrees. The court 
created a new schedule for filing certifications 
and conducting election contests rather than im- 
plementing the schedule enacted by the Legisla- 
ture. . . . 

Counting the Vote; Statements on the Certification of 
Florida’s Votes, N.Y. TIMES, Nov. 27, 2000, at A13. 

Vice President Gore has declared his intention to 
contest the election in circuit court by challenging the 
results certified by at least three Florida counties (Mi- 
ami-Dade, Nassau, and Palm Beach). That contest was 
filed on November 27, 2000. In that litigation, the Vice 
President seeks a further round of manual recounting, 
this time conducted by judges, and seeks to have the re- 
sults of those recounts included in the statewide returns. 

SUMMARY OF ARGUMENT 

1. The Florida Supreme Court’s decision, which 
announced a new framework and timetable for resolving 
controversies over the presidential election results in that 
State, should be vacated because it does not comply with 
3 U.S.C. § 5. 

a. Responding to a presidential election crisis much 
like that unfolding in Florida during the past three 

13 

weeks, Congress enacted a statutory scheme to imple- 
ment the constitutional mechanism of the Electoral Col- 
lege. 3 U.S.C. §§ 1-15. One of those statutes, § 5, pro- 
vides that state-court resolutions of controversies regard- 
ing the appointment of presidential electors shall be 
conclusive only if they are made pursuant to “laws en- 
acted prior to” election day. 

b. The court below rejected Florida statutes and 
deadlines for the appointment of electors and the resolu- 
tion of presidential election disputes as “hyper- 
technical.” Instead, it resorted to its “equitable powers” 
to prescribe new standards and deadlines, suspend man- 
datory enforcement mechanisms, and curtail the discre- 
tion conferred on the state executive by the legislature. 
The decision below constitutes a clear departure from 
the legal requirements established before election day, 
and announces new rules governing the resolution of 
election disputes. The Florida Supreme Court thus con- 
sciously and boldly overrode Florida’s “laws enacted 
prior to” election day and replaced them two weeks later 
with laws of its own invention. 

c. Title 3 U.S.C. §5 is designed to ensure that dis- 
putes relating to the appointment of presidential electors 
will be decided under laws made prior to the exigency 
under which they arose. It was enacted by Congress to 
discourage precisely what has happened in Florida this 
month, where the candidate who did not receive the 
most votes in the official tabulation is attempting to 
change the result by changing the rules. But the plain 
language of the statute provides that state courts must 
adhere to preexisting law if their resolution of election 
controve rsies is to be given binding effect. The court 
below failed to do so. 

d. The Florida Supreme Court’s decision should be 
vacated as a result of its failure to comply with 3 U.S.C. 
§ 5. The resulting consequences are two -fold. First, the 
executive officials in Florida would be able to discharge 
all of their duties, including their duties imposed by fed- 

14 

eral law, under the rules in place on election day. Sec- 
ond, Congress would be able to give conclusive effect to 
the official certification of the Elections Canvassing 
Commission regarding the appointment of Florida’s 
electors made pursuant to the carefully crafted scheme 
put in place before the election to apply equally to all 
voters and candidates. Vacating the decision below 
would thus allow the Electoral College process to reach 
a lawful, final, and conclusive resolution of the presi- 
dential election. 

2. The Florida Supreme Court, by arrogating to it- 
self the authority to make new rules applicable to this 
election contest, also violated Article II of the Constitu- 
tion, which invests the authority to regulate the manner 
of appointing presidential electors in state legislatures. 

a. The Constitution provides that “[e]ach State shall 
appoint [electors] in such Manner as the Legislature 
thereof may direct.” U.S. CONST. art. II, § 1, cl. 1. His- 
tory and precedent establish that this power granted to 
state legislatures is both plenary and exclusive. 

b. Article II establishes a federally mandated sepa- 
ration of powers between the state legislature and other 
branches of state government in the context of choosing 
presidential electors. The Framers deliberately chose to 
invest the power to determine the manner of choosing 
electors in this particular branch of state government, 
thereby excluding the exercise of such power by the 
other branches. Any delegation of this constitutional au- 
thority must be both clear and express. 

c. The Florida legislature has not granted to the 
state supreme court the authority to determine the man- 
ner of choosing electors. On the contrary, the legislature 
has established a complex and detailed framework for 
presidential elections, and has granted the executive 
branch the authority to exercise limited discretion and to 
certify the results of such elections in accordance with 
statutorily imposed deadlines. The state court reached 

15 

out and prohibited the executive branch officials from 
performing their duties, and announced new deadlines to 
supplant those enacted by the legislature. The court thus 
arrogated to itself the power to determine the manner in 
which Florida’s electors are appointed, authority that the 
Constitution reposes only in the state legislature. 

d. The proper remedy for the Florida Supreme 
Court’s violation of Article II is nullification of its at- 
tempt to interfere in the manner in which the State’s 
electors are appointed. The court below had no author- 
ity under the federal Constitution to announce new rules 
for this presidential election. Its attempt at judicial leg- 
islation was unconstitutional, and its actions patently ul- 
tra vires, and the court’s decision is thus void. As a re- 
sult, the state executive branch officials should be freed 
by this Court to carry out their duties without the uncon- 
stitutional interference of the state supreme court. 

ARGUMENT 

Presidential electors “exercise federal functions un- 
der,” and discharge duties pursuant to, “authority con- 
ferred by” the Constitution. Burroughs v. United States, 
290 U.S. 534, 545 (1934). The Constitution reposes in 
Congress authority to “determine the Time of chusing 
the Electors, and the Day on which they shall give their 
Votes.” U.S. CONST. art. II, § 1, cl. 4. Congressional 
authority over electors is, however, much broader. The 
President exercises the whole of the Nation’s executive 
power. U.S. CONST. art. II, § 1. “The importance of his 
election and the vital character of its relationship to and 
effect upon the welfare and safety of the whole people 
cannot be too strongly stated.” Burroughs, 290 U.S. at 
545. Among the powers vested in Congress is the power 
to “protect the election of the President and Vice Presi- 
dent from corruption.” Id. at 547. A fortiori, Congress 
also possesses ample authority to prevent chaos, turmoil, 
and violations of due process in presidential elections. 

16 

The Constitution allocates to each of the States the 
authority to “appoint, in such Manner as the Legislature 
thereof may direct, a Number of Electors,” U.S. CONST. 
art. II, § 1, cl. 2, and the electors are, in turn, empowered 
to meet and to vote by ballot for the election of the 
President. U.S. CONST. amend. XII. Article II, § 1 does 
not, however, shield state election laws from other con- 
stitutional requirements. See Williams v. Rhodes, 393 
U.S. 23, 29 (1968) (“Obviously we must reject the no- 
tion that Art. II, § 1, gives the States power to impose 
burdens on the right to vote, where such burdens are ex- 
pressly prohibited in other constitutional provisions.”). 
Indeed, state-imposed restraints on or impediments to 
the ability to cast an effective ballot in a presidential 
election “implicate a uniquely important national inter- 
est. For the President and the Vice President of the 
United States are the only elected officials who repre- 
sent all the voters in the Nation. Moreover, the impact 
of the votes cast in each State is affected by the votes 
cast for the various candidates in other States.” Ander- 
son v. Celebrezze, 460 U.S. 780, 794-95 (1983). 

Ballot requirements, “including filing deadlines, 
[have] an impact beyond . . . [the] borders” of a particu- 
lar state. Id. at 795 (emphasis added). “Similarly, the 
State has a less important interest in regulating Presiden- 
tial elections than statewide or local elections, because 
the outcome of the former will be largely determined by 
voters beyond the State’s boundaries.” Id. There is a 
“‘pervasive national interest’” in presidential elections 
that is “‘greater than any interest of an individual 
State.’” Id. (quoting Cousins v. Wigoda, 419 U.S. 477, 
490 (1975)). 

17 

I. The Judgment Of The Florida Supreme 
Court Should Be Vacated Because It Does 
Not Comply With 3 U.S.C. § 5 

A. State Court Determinations Regarding 

Controversies Over The Appointment Of 
Presidential Electors Lack Conclusive Ef- 
fect Unless They Implement Legal Rules 
Enacted Before The Election 

In keeping with the “broad congressional power to 
legislate in connection with the elections of the Presi- 
dent and Vice President,” Buckley v. Valeo, 424 U.S. 1, 
14 n.16 (1976), Congress has enacted statutes to imple- 
ment the constitutional framework governing the Elec- 
toral College. See, e.g., 3 U.S.C. §§ 1-15. Of particular 
relevance here, 3 U.S.C. § 5 sets forth the circumstances 
under which state court determinations relating to “any 
controversy or contest concerning the appointment of all 
or any of the electors” of the State will be given authori- 
tative effect. Under §5, such determinations shall be 
given “conclusive” effect and will “govern in the count- 
ing of the electoral votes,” but only if the controversy is 
resolved exclusively by reference to “laws enacted prior 
to” election day. 3 U.S.C. §5 (emphasis added); see 
also id. (providing that the determination of such “con- 
trovers[ies]” must be “made pursuant to” the prior en- 
acted law). Thus, any judicial determination of a con- 
troversy regarding electors based on a new, post-election 
rule of state law would fail to satisfy the requirements of 
§ 5 and would not receive the benefit Congress intended 
to confer on election results and the resolution of con- 
troversies concerning elections determined according to 
rules established and in place before an election. 

Section 5 was enacted in 1887 as a reaction to the 
contested Hayes-Tilden election of 1876, a contest 
marked by naked partisanship, post-election maneuver- 
ing and accusations of corruption. In adopting the statu- 
tory scheme that emphasizes certainty and clear, pre-set 

18 

rules to govern disputes, Congress was evidently deter- 
mined to avoid a similar episode. See 18 CONG. REC. 30 
(Dec. 7, 1886) (remarks of Rep. Caldwell) (bill is in- 
tended to prevent repeat of “the year of disgrace, 1876” 
in which a “cabal . . . had determined . . . to debauch[] 
the Electoral College”). The manifest purpose of this 
federal law is to ensure that attempts by state courts or 
other tribunals to influence or affect the determination of 
the State’s electors will not be effective when reached 
pursuant to rules, standards or criteria adopted after the 
voters have gone to the polls. As Representative Wil- 
liam Craig Cooper of Ohio explained in the congres- 
sional debate on this statute (Act of Feb. 3, 1887, ch. 90, 
§ 2, 24 Stat. 373), “these contests, these disputes be- 
tween rival electors, between persons claiming to have 
been appointed electors, should be settled under a law 
made prior to the day when such contests are to be de- 
cided.” 18 CONG. REC. 47 (Dec. 8, 1886) (remarks of 
Rep. Cooper); see also id. (“these contests should be de- 
cided under and by virtue of laws made prior to the exi- 
gency under which they arose”). 

Against this backdrop, any contention that the Flor- 
ida Legislature satisfied 3 U.S.C. § 5 merely by delegat- 
ing to the state courts the authority to resolve disputes 
concerning the appointment of electors is plainly unten- 
able. First and foremost, nothing in Florida’s election 
statutes authorizes the state supreme court to set aside 
carefully developed rules and thoughtfully balanced 
timetables for the conduct of election protests, recounts 
and contests. Even the supreme court expressed its “r e- 
luctance to rewrite the Florida Election Code.” Pet. 
App. 37a. And given the detailed and carefully wrought 
statutory deadlines and the authority assigned to Flor- 
ida’s election officials, there is no basis for inferring that 
the legislature intended courts to exercise equitable 
powers to change the rules in the midst of the State’s ef- 
forts to ascertain and pronounce election results. 

19 

Moreover, such an interpretation of the Judiciary’s 
authority would render §5 a virtual nullity, and would 
offer none of the protections that Congress sought to 
achieve in enacting the statute. If state legislatures 
could simply convey authority to a chosen tribunal to 
create new post-election rules to govern disputes over 
the appointment of electors, States could easily avoid the 
limitations imposed by 3 U.S.C. §5. Section 5 plainly 
does not admit of such an interpretation, because it pro- 
vides that the judicial or other determination at issue 
must have been made “pursuant to” preexisting law, not 
merely by a preexisting tribunal. As Representative 
Cooper cogently observed, “How could any court, how 
could any tribunal intelligently solve the claims of par- 
ties under a law which is made concurrent, to the very 
moment perhaps, with the trouble which they are to set- 
tle under the law?” 18 CONG. REC. 47 (Dec. 8, 1886). 

B. The Decision Below Announces New 

Rules Of Law And Timetables To Gov- 
ern Controversies And Contests Con- 
cerning Florida’s Appointment Of Presi- 
dential Electors 

A judicial decision that has the effect of adopting a 
new rule of law to govern election disputes cannot, con- 
sistent with § 5, be applied retroactively to affect the ap- 
pointment of presidential electors at an already- 
conducted election. Rather than confining its analysis 
and its remedy to the requirements set forth in Florida 
election statutes, the Florida Supreme Court invoked its 
inherent “equitable powers” to prescribe new deadlines, 
suspend mandatory fines, and eviscerate the Secretary's 
statutory discretion, all in favor of its own conception of 
what would constitute “a fair and expeditious resolution 
of the questions presented here.” Pet. App. 37a-38a. 
Under 3 U.S.C. § 5, however, this Court has an inde- 
pendent obligation to ensure that Florida resolves any 
controversies over the appointment of electors by refer- 
ence to the rules enacted by the legislature prior to the 

20 

election, not post hoc standards announced for the first 
time by courts some two weeks after the election. 

In cases arising under the Ex Post Facto Clause, 
which similarly forbids certain types of retroactive state 
rulemaking, this Court has held that the question 
whether state law has changed in a manner that violates 
the Clause is a question of federal, not state, law, even 
though resolution of that question requires a compara- 
tive analysis of state law. Lindsey v. Washington, 301 
U.S. 397, 400 (1937) (“[W]hether the [state-law] stan- 
dards of punishment set up before and after the commis- 
sion of an offense differ, and whether the later standard 
is more onerous than the earlier within the meaning of 
the constitutional prohibition, are federal questions 
which this Court will determine for itself.”); see Carmell 

v. Texas, 120 S. Ct. 1620, 1639 n.31 (2000) (“Whether a 
state law is properly characterized as falling under the 
Ex Post Facto Clause, however, is a federal question we 
determine for ourselves.”). By the same token, the ques- 
tion whether a State is attempting to resolve controve r- 
sies over the appointment of electors by reference to 
“laws enacted prior to the day fixed for the appoint- 
ment,” or is instead attempting to impose new rules of 
law retroactively in violation of 3 U.S.C. §5, is ulti- 
mately a question of federal law. 

This Court has not previously had occasion to set 
forth the appropriate test for determining whether a state 
court has adopted a new rule of law within the meaning 
of § 5. The Court has, however, frequently addressed 
virtually the same question in determining whether to 
give retroactive effect to newly decided cases in the ha- 
beas corpus context. In Teague v. Lane, 489 U.S. 288 
(1989), the Court explained that “[i]n general . . . a case 
announces a new rule when it breaks new ground .. . . 

To put it differently, a case announces a new rule if the 
result was not dictated by precedent existing at the time 

. . . .” 

Id. at 301 (opinion of O’Connor, J.). In determin- 
ing whether a rule of law announced by a court is in fact 

21 

new, this Court will “determine whether a .. . court . . . 
would have felt compelled by existing precedent to con- 
clude that the rule” was required. Caspari v. Bohlen, 
510 U.S. 383, 390 (1994) (internal quotation marks and 
citations omitted).5 

While Teague uses prior judicial precedents as its 
point of reference for determining whether a judicial de- 
cision establishes a “new rule,” the appropriate question 
under 3 U.S.C. § 5 is, of course, whether the Florida Su- 
preme Court adopted a “new rule” as measured against 
the existing statutory provisions “enacted” by the legis- 
lature to govern presidential elections. Under this un- 
derstanding, it is clear that the decision below announces 
a new rule for purposes of 3 U.S.C. § 5. Plainly, the de- 
cision below “breaks new ground” and announces a re- 
sult that was not “dictated by” statutes in effect at the 
time of the November 7 election. As even the Gore re- 
spondents acknowledge, the state supreme court failed 
to resolve the dispute at issue here according to laws 
“enacted prior to” election day. Instead, “[i]n light of 
the unique circumstances of the case, the court invoked 
its equitable powers to fashion a remedy . . . .” Gore 

Opp. 12 (emphasis added); see Pet. App. 37a. The invo- 
cation of a court’s equitable powers to fashion novel 
remedies, new rules, and ad hoc timetables plainly fails 

5 The Teague line of cases provides a useful metric for de- 
termining whether a court has announced a new rule, and 
Teague’s underlying concerns for finality and the enforce- 
ment of settled expectations parallel the interests served by 3 
U.S.C. § 5. 

Under any permissible definition, however, the 
Florida Supreme Court’s decision in this case imposed new 
rules. There is simply no law enacted prior to Election Day 
that set forth the deadline of November 26 announced in the 
decision below or the virtually non-existent range of discre- 
tion within which the Secretary of State was allowed to oper- 
ate. A legislative pronouncement that required (or author- 
ized) late returns to be ignored was inverted into a require- 
ment that late returns be accepted. 

22 

to comply with the congressional directive that disputes 
concerning the appointment of presidential electors must 
be resolved “pursuant to” the “laws enacted prior to” 
election day in order to be given effect. 3 U.S.C. § 5. 

Undeterred by—and seemingly indifferent to—the 
express federal statutory disapproval of the post hoc 
creation of new legal rules that could change the out- 
come of controversies over the appointment of presiden- 
tial electors, the Supreme Court of Florida has author- 
ized a 180-degree departure from the established legal 
requirements set forth by the Florida Legislature that 
were in place on November 7. Prior to election day 
2000, the Florida Legislature had enacted clear legisla- 
tive directives regarding the certification of votes cast in 
the presidential election. Section 102.112 of the Florida 
Statutes unequivocally required that election returns by 
county canvassing boards “must be filed by 5:00 p.m. on 
the 7th day following the . . . general election . . . .” The 

new rule of law announced by the decision below 
changes the effective deadline for submission of election 
returns from November 14 until November 26 (Pet. 
App. 38a), nearly tripling the statutory seven-day protest 
period and certification deadline mandated by the Flor- 
ida Legislature. 

Further, § 102.111 of the Florida Statutes provides 
that the Elections Canvassing Commission “shall . . . ig- 
nore[]” county returns filed after 5:00 p.m. on the sev- 
enth day following the election, and “shall . . . certif[y]” 
the election based on the results returned before the 
deadline. Section 102.112(1) confirms that late-filed re- 
turns “may be ignored” by the Elections Canvassing 
Commission. See Fla. Stat. §102.112.6 In the face of 

6 This statute, enacted in 1989, appears to have been 
passed in response to the Supreme Court of Florida’s deci- 
sion in Chappell v. Martinez, 536 So. 2d 1007, 1008-09 (Fla. 
1988), in which the court affirmed the Secretary of State’s 
exercise of discretion to accept late returns from a county that 

23 

this clear and preexisting legislative directive, the Su- 
preme Court of Florida has concluded retroactively that 
the Elections Canvassing Commission shall not and may 
not ignore late-filed returns, but must hold the results of 
a national election open for an additional extended pe- 
riod of time, and shall include late returns based on se- 
lective manual recounts in individual counties. Pet. 
App. 38a. 

Even if the Secretary of State might have been au- 
thorized to excuse a county board’s insubstantial non- 
compliance with the 5:00 p.m. November 14 deadline 
(see Fla. Stat. §102.112), nothing in Florida law as it 
existed before November 7, 2000, required that she do 
so, and certainly there was no preexisting requirement in 
Florida law that she accept returns filed 12 days after the 
statutory deadline, thus tripling the legislature’s protest 
period and concomitantly shortening the contest period. 
Indeed, without any support in Florida election statutes, 
the court below simply announced that “[t]he Secretary 
may ignore [late] returns only if their inclusion will 
compromise the integrity of the electoral process in ei- 
ther of two ways: (1) by precluding a candidate, elector, 
or taxpayer from contesting the certification of election 
pursuant to section 102.168; or (2) by precluding Florida 
voters from participating fully in the federal electoral 
process.” Pet. App. 37a. These explicit but sharply lim- 
ited, judicially crafted criteria wholly supplant the ex- 
plicit provisions of §§ 102.111 and 102.112, which (at 
most) leave the power to excuse compliance with the 
certification deadlines to the Secretary’s discretion. 

had substantially complied with the statutory deadline. In 
passing § 102.112, however, the state legislature did not 
amend or in any way alter § 102.111. In fact, the Florida 
House rejected an amendment that would have replaced 
“shall” in § 102.111 with “may.” 1989 Fla. Sen. J. 819. In 
any event, as discussed below, § 102.112 states that late re- 
sults may be ignored, not that such results may not be ig- 
nored, as the Florida Supreme Court’s novel ruling directed. 

24 

The Florida Legislature directly contemplated close 
elections when it enacted the controlling statutory provi- 
sions at issue. Florida election law not only authorizes 
machine and manual recounts, but sets explicit limits 
and short timeframes for the period during which they 
may be conducted. In passing §§ 102.111 and 102.112 
the legislature plainly determined that expedition and fi- 
nality were paramount considerations, and elevated 
those goals over the need for manual recounts that might 
threaten to drag on interminably. If requested, manual 
recounts are neither required nor are they conducted on a 
statewide basis. The statutory deadline, by contrast, is 
expressed in unambiguously mandatory terms and ap- 
plies uniformly throughout the state. No meaningful 
conflict can be discerned between the carefully confined 
time limits for the protest phase, including the manual 
recount provisions, and the statutory deadline provi- 
sions: manual recounts, under the law as it existed on 
November 7, must be completed within the deadline. 

The new, judicially established statutory deadline 
written in place of the one contained in §§ 102.111 and 
102.112 also creates a new rule of law in that it effec- 
tively modifies the legislative provisions provi ding for 
contests to election results. See Fla. Stat. § 102.168. 
That statute clearly anticipates that results will be certi- 
fied in a timely fashion, in order for the results to be 
contested in court. A contestant has ten days from the 
time the last county canvassing board certifies its returns 
to file his or her complaint. The defendant then has ten 
days to file an answer. By issuing a judicial decree that 
pushes back the deadline for certification from Nove m- 
ber 14 to November 26, the Florida Supreme Court has 
modified the preexisting rule of law discernible on the 
face of the legislature’s contest provisions. Indeed, be- 
cause any judicial or other proceedings regarding chal- 
lenges to the appointment of electors must be finally re- 

25 

solved by December 12,7 contestants, and particularly 
defendants, will not have the statutorily provided time in 
which to file their pleadings, conduct discovery, and 
participate in a trial and appeal as contemplated by the 
legislature. Plainly, the Florida Supreme Court created a 
new rule, one that had not been in existence before elec- 
tion day 2000, for resolving disputes concerning the ap- 
pointment of electors.8 

Because no preexisting rule of law required the Sec- 
retary of State to waive the time limit on the facts pre- 
sented, the Florida Supreme Court’s attempt to enforce 
its newly announced rule retroactively plainly fails to 
satisfy 3 U.S.C. § 5. 

That is particularly true in this 
case, given the court’s acknowledgement that it was not 
interpreting Florida law, but was relying on principles of 
“equit[y]” to justify its decision. E.g., Pet. App. 37a. 
Significantly, the requirements of 3 U.S.C. § 5 are satis- 
fied only if the state court determination at issue is made 
pursuant to laws that were “enacted” prior to election 
day. In imposing this requirement, Congress faithfully 
adhered to the constitutional mandate that state legisla- 
tures are to direct the manner in which presidential elec- 
tors are appointed. U.S. CONST. art. II, § 1, cl. 2. 

7 Section 5 of Title 3 provides that any controversy or con- 
test concerning the appointment of presidential electors shall 
be resolved “at least six days prior to” the day fixed for the 
meeting of electors. 3 U.S.C. § 5. The day fixed for the 
meeting of presidential electors this year is December 18, 
2000. See 3 U.S.C. § 7. 

8 Similarly, the constantly changing and county-to-county 
variations in the recount protocols and standards, including 
consideration by some counties during the manual recount of 
simple indentations known as “dimples” as legally cast votes, 
clearly marks a departure from prior practice as of November 
7, and thus reflects another post-election change in proce- 
dures that is inconsistent with § 5. 

26 

By choosing the term “enacted,” Congress made 
clear that the laws to be followed in resolving disputes 
are state legislative acts, not the post-election equitable 
decrees fashioned by state courts to promulgate new 
rules. This understanding comports with accepted legal 
usage of the term “e nacted” and with decisions from this 
Court. See BLACK’S LAW DICTIONARY 890, 1606 (7th 
ed. 1999) (s.v. “law”) (defining “enacted law” as “[l]aw 
that has its source in legislation; WRITTEN LAW”; defin- 
ing “written law” as “[s]tatutory law, together with con- 
stitutions and treaties, as opposed to judge-made law”) 
(emphasis added); United States v. Brown, 381 U.S. 437, 
443 (1965) (distinguishing “legislative enactment” from 
“judicial application” and “executive implementation”); 
United States v. Harris, 106 U.S. 629, 639 (1883) (refer- 
ring to “the laws of the State, as enacted by its legisla- 
tive, and construed by its judicial, and administered by 
its executive departments”). The decision below, by re- 
jecting the “technical” requirements actually “enacted” 
by the Florida Legislature in favor of the court’s own 
notions of “equity,” clearly fails to satisfy § 5’s re- 
quirement that election law disputes be resolved pursu- 
ant to preexisting “e nact[ments].” 

Thus, the decision below was not dictated by preex- 
isting law and, in fact, the statutory provisions applica- 
ble to resolving disputes over the appointment of elec- 
tors were expressly overridden. Although the state su- 
preme court’s decision discusses Florida laws that ex- 
isted prior to election day, it does not identify any source 
of preexisting law that set forth the substance of the 
rules set forth in the judgment below. The Florida Su- 
preme Court itself fully acknowledged throughout its 
opinion that it was not following the legislature’s ex- 
press directives. Indeed, it dismissed such provisions as 
inconvenient “[t]echnical statutory requirements.” Pet. 
App. 31a. The Florida Supreme Court’s decision thus 
consciously and unapologetically fails to adhere to the 
“laws enacted prior to” election day. Nothing in Florida 
law prior to November 7 revealed that the seven-day pe- 

27 

riod for certification of election results was in reality a 
nineteen-day period, or that the Secretary of State’s 
broad power to enforce the statutory deadline and reject 
untimely election returns was wholly displaced by extra- 
statutory criteria. Far from being compelled by preexist- 
ing legislative enactments, the state supreme court’s de- 
cision clearly changed Florida election law and an- 
nounced a “new rule.” 

Tellingly, even the Gore respondents do not dispute 
that a change in the law took place. They simply claim 
that the Florida Supreme Court’s decision does not 
“‘change the rules’ in any way that implicates federal 
law.” Gore Opp. 17 (emphasis added). Under 3 U.S.C. 
§ 5, however, any post-election change in the rules gov- 
erning the appointment of presidential electors (much 
less the extensive revisions introduced by the Florida 
Supreme Court in this case) not only implicates federal 
law, it squarely ignores and overrides the federal re- 
quirements and standards enunciated in § 5. 

C. The Florida Supreme Court’s Decision 

Also Upsets The Policy Choice Made By 
Congress In 3 U.S.C. § 5 

As noted above, the legislative history and purpose 
of 3 U.S.C. §5 confirm that the new rule announced by 
the Florida Supreme Court is inconsistent with the re- 
quirements of §5. The intent of §5 is to ensure that 
disputes relating to the appointment of presidential elec- 
tors will be “decided under and by virtue of laws made 
prior to the exigency under which they arose.” 18 
CONG. REC. 47 (Dec. 8, 1886) (remarks of Rep. Coo- 
per). In other words, the rule of law means the applica- 
tion of rules properly enacted and generally understood 
before the contest—not rules made up afterwards to suit 
the needs of one or the other of the protagonists. 

The federal rule enunciated by Congress in 3 U.S.C. 
§ 5 serves obvious and important public policy interests 
by discouraging precisely what is happening in Florida 

28 

today, where the candidate who did not receive the most 
votes and his subordinates seek to ove rturn the results of 
the presidential election by appealing for the enactment 
of new rules after the election has been held. That was 
done repeatedly during the recounts, ending with the ef- 
fort to force adoption of the “dimpled” ballot concept, 
and it was done when the time limit for conducting 
manual recounts was changed from seven to nineteen 
days. Section 5’s rejection of such retroactive rulemak- 
ing in the election context provides a statutory corollary 
to the principle of federal constitutional law recognized 
by the Eleventh Circuit in Roe v. Alabama, 43 F.3d 574 
(11th Cir. 1995). As the court of appeals held in that 
case, constitutional principles of due process and fun- 
damental fairness preclude the States from adopting “a 
post-election departure from previous practice” and ap- 
plying that post-election rule retroactively to determine 
the outcome of an election. Id. at 581. Here, as in Roe, 
“had the candidates . . . known” that the state supreme 
court would retroactively extend the deadline for sub- 
mission of election returns notwithstanding the plain 
language of the governing statutes, or that recount stan- 
dards would be changed from day to day according to 
the whims of the officials in charge of the process in 
each county, “campaign strategies would have taken this 
into account .. . .” Id. at 582. Indeed, the candidates’ 

decisions whether to seek a manual recount in specific 
additional counties might well have been affected had 
petitioner and other candidates known that the Florida 
Supreme Court would subsequently extend the statutory 
deadline nearly threefold and that local officials could 
adopt recount rules that favored their preferred candi- 
dates. Considerations of due process and fundamental 
fairness plainly preclude such retroactive rulemaking 
here. 

* * * * * 

The application of 3 U.S.C. § 5 in these circum- 
stances is straightforward. Perhaps because no candi- 

29 

date has previously resisted so strenuously and resource- 
fully the certification of election results as has Vice 
President Gore, this Court has not previously been called 
upon to decide whether or not the state courts, in order 
to satisfy §5, must adhere to preexisting law in resolv- 
ing election disputes. But the plain language of the fed- 
eral statute indicates that they must do so if their deci- 
sions are to be given binding effect, and it is equally 
plain that the Florida Supreme Court failed to do so 
here. 

D. Because The Judgment Below Does Not 

Comply With 3 U.S.C. § 5, It Is Not Bind- 
ing On Congress Or The Elections Can- 
vassing Commission 

The additional question posed by this Court asks 
“What would be the consequences of this Court’s find- 
ing that the decision of the Supreme Court of Florida 
does not comply with 3 U.S.C. § 5?” 

The appropriate remedy to follow from such a find- 
ing seems obvious: This Court should vacate the Florida 
Supreme Court’s judgment, thereby reinstating the Elec- 
tions Canvassing Commission’s statutory authority to 
act in accordance with the clear and specific deadlines 
prescribed by Florida election law as of November 7, 
2000. The same relief would flow, of course, from this 
Court’s determination that the decision below violates 
Article II. 

Such a result would permit Florida’s executive offi- 
cials to perform their duties under the law as it existed 
on November 7, 2000. As explained above, Title 3 sets 
forth a carefully crafted federal scheme, in which the 
States play a crucial role. Florida, in particular, has 
through its legislature designated certain state executive 
branch officials, including the Secretary of State and the 
Elections Canvassing Commission, as the state officials 
responsible for performing Florida’s obligations under 
the federal scheme and exercising appropriate discretion. 

30 

Title 3 U.S.C. § 15, which directly implements 
Congress’s authority under the Twelfth Amendment to 
count electoral votes, sets forth, inter alia, the proce- 
dures by which Members of Congress may object to the 
votes cast by certain electors, and how Congress will re- 
solve those objections. It provides that “no electoral 
vote or votes from any State which shall have been regu- 
larly given by electors whose appointment has been law- 
fully certified to according to section 6 of this title from 
which but one return has been received shall be rejected 

. . . .” 3 U.S.C. § 15. Section 6, in turn, states that “if 

there shall have been any final determination in a State 
in the manner provided for by law of a controversy or 
contest concerning the appointment of all or any of the 
electors of such State, it shall be the duty of the execu- 
tive of such State, as soon as practicable after such de- 
termination, to communicate under the Seal of the State 
to the Archivist of the United States a certificate of such 
determination in form and manner as the same shall 
have been made.” 3 U.S.C. §6. Thus, this Court’s de- 
termination that the judgment below does not comply 
with § 5 would also ensure that Congress, in performing 
its functions under 3 U.S.C. § 15, would be bound to 
give “conclusive” effect to the official certification of 
the Elections Canvassing Commission concerning the 
appointment of Florida’s electors made according to the 
unmodified Florida election law. 3 U.S.C. § 5. 

Congress has enacted a statutory framework that is 
dependent to a significant degree on certifications and 
other actions by state executive officials, which Con- 
gress has deemed necessary to fulfill its constitutional 
responsibilities related to counting the vo tes of the elec- 
toral college. It would frustrate Congress’s carefully or- 
chestrated procedures for carrying out these important 
constitutional duties if state courts, acting in a manner 
manifestly inconsistent with 3 U.S.C. §5, could none- 
theless issue injunctions and other binding orders to 
state executive officials that prevent them from perform- 

31 

ing their duties in accordance with pre-existing Florida 
statutes and, thus, with 3 U.S.C. § 5.9 

This conflict is heightened by the fact that in certain 
circumstances, where the provisions of 3 U.S.C. § 5 
have not been complied with, federal law gives conclu- 
sive effect to the determinations of the responsible state 
executive officials. Under 3 U.S.C. § 15, for example, if 
Congress receives multiple electoral vote returns from a 
State, none of which complies with 3 U.S.C. § 5, and the 
two Houses of Congress are unable to agree on which 
return to count, “then, and in that case, the votes of the 
electors whose appointments shall have been certified by 
the executive of the State, under the seal thereof, shall 
be counted.” 3 U.S.C. § 15. Plainly, because a clear 
goal of § 5 is to avoid any possibility that Congress 
would be bound by state determinations that do not 
comply with §5, it cannot be the case that a state court 
determination that is inconsistent with §5 can compel 
state executive officials to certify election results in such 
a way as to bind Congress. 

The Florida Supreme Court’s decision thus stands as 
an obstacle to state executive officials’ performance of 
their federal statutory duties. A finding by this Court 
that the Florida decision was inconsistent with the re- 
quirements of 3 U.S.C. § 5 would accordingly require a 
declaration that the judgment below—as a matter of fed- 
eral law—is a nullity, to the extent it purports to bind 
state executive officials with federally assigned respon- 
sibilities relating to the November 7 election and the 

9 Petitioner emphasizes that he is not asking this Court to 
declare the “correct” rule of Florida law. Rather, petitioner is 
simply seeking to ensure that Florida officials are able to per- 
form their federal duties with respect to this election without 
being restrained by the newly fashioned equitable decree, 
standards and timetable announced by the Florida Supreme 
Court to supplant the rules for this election. 

32 

choice of presidential electors.10 As a result, the Elec- 
tions Canvassing Commission would be free to re- 
certify petitioner, once again, as the winner of the elec- 
tion context in Florida, with a corrected vote total re- 
flecting the vote tabulated in compliance with the statu- 
tory deadline of November 14.11 

While it is true that petitioner was also certified the 
winner under the judicially-created deadline of Nove m- 
ber 26, the votes certified under that judicially-imposed 
procedure are substantially different from those that 
would have been certified as of the statutory deadline of 
November 14. Those differences may have significant 
consequences for the election contest challenge cur- 
rently being mounted by Vice President Gore. 

Under Florida law, there is a “presumption that re- 
turns certified by election officials are presumed to be 
correct.” Boardman v. Esteva, 323 So. 2d 259, 268 (Fla. 
1975). Specifically, certified election returns are “r e- 
garded by the courts as presumptively correct and if ra- 
tional and not clearly outside legal requirements should 
be upheld.” Id. at 268-69 n.5 (quotation omitted). Con- 

10 There is nothing surprising about that principle of law. 
For example, in the context of the Extradition Clause, U.S. 
CONST. art. IV, §2, cl. 2, and the federal statute that imple- 
ments it, 18 U.S.C. § 3182, this Court has overturned state 
court decisions that interfere with state executive officials’ 
attempts to perform their duties imposed by federal law. 
New Mexico ex rel. Ortiz v. Read, 524 U.S. 151, 154-55 
(1998); California v. Superior Court, 482 U.S. 400 (1987). 

11 Nothing in the foregoing analysis, of course, affects the 
validity of the Elections Canvassing Commission’s Novem- 
ber 26 certification that petitioner received the most votes in 
Florida’s presidential election. The same presidential elec- 
tors would have been elected under a standard that complied 
with the statutory deadline, because petitioner and Secretary 
Cheney received the most votes each time the votes were 
tabulated. 

33 

sequently, to overcome this strong presumption, an elec- 
tion challenger must show, as a threshold matter, that 
there has been “substantial noncompliance with the elec- 
tion statutes.” Beckstrom v. Volusia County Canvassing 
Bd., 707 So. 2d 720, 725 (Fla. 1998). 

The proper application of this strong presumption to 
the results that would have been certified by the Elec- 
tions Canvassing Commission but for the Florida Su- 
preme Court’s sua sponte November 17 order and No- 
vember 21 opinion and order would be significant to pe- 
titioner. First, the vote margin for petitioner is signifi- 
cantly smaller under the November 26 certification than 
it would have been under the certification required by 
the statute. Perhaps more importantly, the content of the 
votes certified on November 26—and thus entitled to the 
presumption of correctness—is significantly different 
than it would have been under the statutory deadline. 
For example, the November 26 certification includes 
“dimpled” ballots manually recounted in Broward 
County, a process that produced 567 additional votes for 
the Vice President. If this Court finds that the Florida 
Supreme Court’s amendment of the statutory deadline to 
November 26 is inconsistent with § 5, those 567 votes 
will not be clothed with the presumption of correctness 
afforded certified election returns. Instead, the vote tally 
produced by the normal, machine assisted, recount and 
submitted by Broward County on November 14 will be 
entitled to that presumption. Which votes are viewed as 
the properly certified election results could have signifi- 
cant consequences for the election contest.12 

12 Moreover, if this Court rules that election standards— 
including the standards for assessing valid ballots—promul- 
gated after November 7 are not “conclusive” under § 5, the 
Florida courts in the election challenge will not accept Vice 
President Gore's newly developed “dimpled” ballot standard 
as a permissible basis for determining proper certification of 
presidential electors. 

34 

Vice President Gore also claims in his election con- 
test that the Elections Canvassing Commission should 
have included the tabulation of ballot changes manually 
recounted in Palm Beach County by 5:00 p.m. on No- 
vember 26 (or, alternatively, should have extended the 
deadline still further). Similarly, the Vice President ar- 
gues that Miami-Dade County Canvassing Board abused 
its discretion by not conducting a partial recount of votes 
for the November 26 deadline. Both these claims will 
be rendered invalid if the state election officials are free 
to enforce, as the proper deadline under federal law, the 
statutory deadline previously established by the Florida 
legislature. 

Perhaps the most significant consequence of the 
Court’s ruling for petitioner would be to clarify the gov- 
erning federal law standards and thereby forestall an im- 
pending constitutional crisis. As it currently stands, an 
election contest is proceeding, and the matter is before 
the Florida courts. If this Court holds, under 3 U.S.C. 
§ 5, that an exercise of “equitable powers” to alter exist- 
ing statutory standards is an impermissible change in the 
law, and that judicial amendment of statutory standards 
enacted by the legislature is contrary to Article II, § 1’s 
grant of plenary authority to state legislatures, the pros- 
pect of subsequent judicial amendment—and of dualing 
slates of electors mandated by dualing branches of Flor- 
ida’s government—is substantially diminished. 

Nor does the fact that Congress and the Florida Leg- 
islature have other means of remedying state judicial 
violations of U.S. Const. art. II, §1, cl. 2, and 3 U.S.C. 
§ 5 preclude this Court from prescribing the proper rem- 
edy.13 To be sure, what the Florida Supreme Court did 

13 Under 3 U.S.C. § 2, the Florida Legislature has the au- 
thority to direct the “manner” of appointing electors when the 
State “has failed to make a choice on the day prescribed by 
law.” When there is a controversy over the appointment of 
electors and the State fails to make a “final determination” of 

35 

in this case was to usurp the prerogatives of the Florida 
legislature, and the legislature is constitutionally and 
statutorily empowered to respond by appointing electors 
or otherwise legislating with regard to the manner of ap- 
pointment. U.S. CONST. art. II, § 1, cl. 2; 3 U.S.C. § 2. 
By acting now to reject the Florida Supreme Court’s 
unwarranted intrusion into the regulation of the manner 
of appointing electors, this Court will eliminate the po- 
tential for a constitutional crisis arising out of an un- 
seemly conflict among Florida’s legislative and judicial 
branches regarding the appointment of electors. 

In McPherson v. Blacker, 146 U.S. 1 (1892), more- 
over, the Court entertained a challenge to a Michigan 
statute authorizing the appointment of electors through 
district, rather than statewide, elections. Michigan’s 
Secretary of State argued that given the role of Con- 
gress, as well as certain state executive officers, in de- 
termining election results, disputes regarding the ap- 
pointment of electors were not subject to judicial review 
and remedies. Id. at 23. The Court squarely rejected 
that argument, concluding that the validity of Michi- 

its electors pursuant to 3 U.S.C. § 5, the legislature plainly 
possesses the authority to resolve that dilemma under § 2. 
Thus, § 2 and § 5 are complementary parts of Title 3’s 
framework for regulating the appointment of electors. Sec- 
tion 5 gives the State an opportunity to resolve any “contro- 
versy” or “contest” over electors if it does so in accordance 
with statutes enacted prior to the election, provided that a fi- 
nal determination pursuant to such statutes is reached “at 
least six days before the time fixed for the meeting of the 
electors.” 3 U.S.C. § 5. In contrast, § 2 contemplates that, if 
necessary, the legislature will prescribe the “manner” of ap- 
pointing electors following the election. Accordingly, § 2 
recognizes the state legislature’s power to protect its constitu- 
tional prerogatives over the appointment of electors in the 
event that, inter alia, its pre-election statutory scheme is sub- 
verted or otherwise fails to produce a conclusive choice un- 
der § 5. 

36 

gan’s method of appointment raised “a judicial ques- 
tion,” subject to judicial orders. Id. at 24. 

Similarly, in Foster v. Love, 522 U.S. 67 (1997), the 
Court enforced a private right of action against Louisi- 
ana’s primary election system under 2 U.S.C. § 7, which 
prescribes a uniform day for the election of Senators and 
Representatives. Although the question apparently was 
not raised in that case, it is important to note that Article 
I, Section 5 provides that “[e]ach House shall be the 
Judge of the Elections, Returns, and Qualifications of its 
own Members.” U.S. CONST. art. I, § 5, cl. 1. Thus, if 
Louisiana’s election scheme violated federal require- 
ments for the election of Senators and Representatives, 
each House presumably could have enforced that re- 
quirement in the context of judging “the Elections” of its 
members. That fact, however, did not prevent this Court 
from fashioning an appropriate judicial remedy. 

Congress enacted 3 U.S.C. § 5 to protect the strong 
national interest in having disputes over electors re- 
solved through pre-established rules, thereby ensuring 
finality and fairness to the resolution of such inherently 
political contests and to avoid the kind of contentious, 
chaotic and standardless process that has characterized 
the Florida situation during the three weeks since No- 
vember 7. That Congress retains the right to count the 
returns of the electoral college to resolve such disputes 
where necessary does not protect the same important 
federal rights and interests that Congress sought to pro- 
tect through § 5. Cf. Clinton v. City of New York, 524 
U.S. 417, 430 (1998). 

II. The Florida Supreme Court’s Decision Vi o- 
lates Ar ticle II Of The Constitution Of The 
United States 

In addition to being irreconcilable with the require- 
ments of 3 U.S.C. §5, the Florida Supreme Court’s de- 
cision violates Article II of the Constitution, which ex- 
pressly invests state legislatures with the power to de- 

37 

termine the manner in which presidential electors are 
appointed. As this Court has recognized, the Constitu- 
tion “leaves it to the legislature exclusively to define the 
method of effecting the object” of appointing electors. 
McPherson v. Blacker, 146 U.S. 1, 27 (1892) (emphasis 
added). In the absence of clear and express delegation 
of that power by the state legislature to a coordinate 
branch of state government, the Constitution forbids the 
exercise of such power by any branch other than the leg- 
islature. In Florida, the legislature manifestly did not 
grant the authority to adjust deadlines for election re- 
turns to organs of the Florida judiciary. Rather, it set 
forth a precise statutory scheme to govern the appoint- 
ment of presidential electors. The Florida Supreme 
Court’s extensive and unauthorized revision of that 
scheme was unconstitutional. 

A. The Framers Vested The Authority To 

Determine The Manner For The Ap- 
pointment Of Presidential Electors In 
The State Legislatures 

In constructing the new national government, the 
Framers were confronted with the problem of how its of- 
ficials would be chosen. They settled on three separate 
schemes. The Members of the House of Representatives 
would be elected “by the People of the several States.” 
U.S. CONST. art. I, §2, cl. 1. The Senators would be 
“chosen by the Legislature” of each State. U.S. CONST. 
art. I, §3, cl. 1.14 As for the President and Vice Presi- 
dent, the Framers devised a new system of indirect elec- 
tion that has become known as the Electoral College. 
See U.S. CONST. art. II, § 1 & amend. XII. 

The Electoral College was the product of consider- 
able debate and compromise at the Convention. The 

14 This mode of selection was later changed to provide for 
direct popular election of Senators. U.S. CONST. amend. 

XVII. 

38 

Framers ultimately settled on a system of electors, who 
would be appointed from each State and who, in turn, 
would vote for the President and Vice President. See 
The Federalist No. 68 (Hamilton). This approach was 
adopted to minimize “the danger of intrigue & faction.” 
2 The Records of the Federal Convention of 1787 500 
(Max Farrand, ed. 1966) (“Farrand”) (floor remarks of 
Gouverneur Morris). 

The most significant issue to be resolved was how 
the electors themselves would be chosen. Some of the 
delegates argued for popular election, while others 
sought to vest the authority to appoint electors in either 
the executive or the legislative branches of the several 
States. In light of the length and passion of the debates 
over the mode of selecting the President, it is notable 
that not a single delegate to the Convention suggested 
that the power to determine the manner of appointing 
electors be vested in the state courts. As James Madison 
said on the floor, “[t]he State Judiciarys had not & he 
presumed wd. not be proposed as a proper source of ap- 
pointment.” 2 Farrand 110. 

In the end, the Convention resolved to instill the 
state legislatures with the power to determine the man- 
ner of appointing electors. As ratified, the Constitution 
provided that “[e]ach State shall appoint [electors] in 
such Manner as the Legislature thereof may direct.” 
U.S. CONST. art. II, § 1, cl. 2 (emphasis added). As this 
Court has recognized, “[t]he final result seems to have 
reconciled contrariety of views by leaving it to the state 
legislatures to appoint directly by joint ballot or concur- 
rent separate action, or through popular election by dis- 
tricts or by general ticket, or as otherwise might be di- 
rected.” McPherson, 146 U.S. at 28; see also Ray v. 
Blair, 343 U.S. 214, 224 n.11 (1952) (“Discussion in the 
Constitutional Conve ntion as to the manner of election 
of the President resulted in the arrangement by which 

39 

presidential electors were chosen by the state as its legis- 
lature might direct”).15 

In the early days of the Republic, several state legis- 
latures chose electors directly, without conducting a vote 
of the citizenry. The constitutionality of this practice 
was quickly settled: 

When a bill to regulate presidential elections 
was before the First Congress, Representative 
Giles argued that by prescribing that electors 
should be chosen “in such Manner as the Legis- 
lature .. . may direct” the Constitution implied 
that the legislatures were not permitted to make 
the choice themselves; electors were to be cho- 
sen by the people. Giles was immediately cor- 
rected from both ends of the political spectrum. 
The power was “left discretionary with the state 
Legislatures,” said Jackson of Georgia—as 
Goodhue of Massachusetts added, “by the ex- 
press words of the Constitution.” 

Currie, The Constitution in Congress 138 n.60 (citations 
omitted). “The states took advantage of the latitude thus 
afforded them to employ a wide variety of methods for 
choosing electors.” Ibid.; see generally McPherson, 146 
U.S. at 28-35 (cataloguing various methods by which 
States have chosen electors).16 

15 Alexander Hamilton explained that the Electoral College 
was designed “to afford as little opportunity as possible to 
tumult and disorder.” THE FEDERALIST No. 68, at 411 (Alex- 
ander Hamilton) (Clinton Rossiter ed., 1961). The goal was 
to ensure that the President be elected in the absence of 
“heats and ferments,” “sinister bias,” or “corruption.” Id. at 
412. 

16 The wide variety of procedures that have been employed 
by state legislatures over time demonstrates that the Article II 
structure is fully consistent with principles of federalism. At 
the same time, however, “the provisions governing elections 

40 

B. In The Absence Of Express Legislative 

Direction, The State Executive And Judi- 
cial Branches Are Constitutionally Pro- 
hibited From Engrafting Material 
Changes Onto The Manner Of Appoint- 
ing Presidential Electors 

The words “in such Manner as the Legislature .. . 
may direct” in Article II establish a federally mandated 
separation of powers between the state legislature and 
other branches of state government in the context of 
choosing presidential electors. “[T]he insertion of those 
words,” this Court has explained, “operate[d] as a limi- 
tation upon the State in respect of any attempt to cir- 
cumscribe the legislative power.” McPherson, 146 U.S. 
at 25. The Florida legislature has thus been granted, by 
the Constitution itself, plenary authority to regulate the 
manner of appointment of presidential electors: “The 
appointment of these electors is thus placed absolutely 
and wholly with the legislatures of the several States.” 
Id. at 34-35 (quoting Senate Rep. 1st Sess. 43 Cong. No. 
395 (Sen. Morton)); see also State ex rel. Beeson v. 
Marsh, 34 N.W.2d 279, 285 (Neb. 1948) (“Article II, 
section 1, of the Constitution of the United States .. . 
leaves to the Legislature of the state the manner of de- 
termining how ‘Each State’ shall appoint its presidential 
electors. It is a matter within the control of the state 
Legislature.”); McClendon v. Slater, 554 P.2d 774, 777 
(Okla. 1976) (“the Legislature has the duty to direct the 
manner of choosing presidential electors”). 

reveal the Framers’ understanding that powers over the elec- 
tion of federal officers had to be delegated to, rather than re- 
served by, the States.” U.S. Term Limits, Inc. v. Thornton, 
514 U.S. 779, 805 (1995). 

The States have been given a role 
in this most national of elections, but that role is not (as re- 
spondents have suggested) exclusive of any federal interest. 
To the contrary, as shown above, the federal interests in 
presidential elections are paramount and pervasive. 

41 

The reason that the Framers committed the manner 
of appointing electors to the legislatures of the several 
States was that the legislative branch of government, 
unlike the executive or the judicial, is representative of 
the will of the people. This Court has explained that 
legislature “was not a term of uncertain meaning when 
incorporated into the Constitution. What it meant when 
adopted it still means for the purpose of interpretation. 
A Legislature was then the representative body which 
made the laws of the people.” Hawke v. Smith, 253 U.S. 
221, 227 (1920); see also McPherson, 146 U.S. at 27 
(Article II “recognizes that the people act through their 
representatives in the legislature, and leaves it to the leg- 
islature exclusively to define the method of effecting the 
object”). The Framers expected that choices regarding 
the manner of appointing presidential electors wo uld be 
made by such a representative body. 

It is significant that the Framers specifically identi- 
fied the state legislatures as the repositories of the power 
to determine the manner of appointing presidential elec- 
tors. Several provisions of the Constitution assign fed- 
eral authority or responsibility to the several States. 
Such authority is sometimes vested in the States qua 
States.17 A number of other constitutional provisions 
identify with precision the state institution that is 
charged with exercising particular duties integral to the 
functioning of the federal government. For example, 
various constitutional provisions specify that the state 

17 See, e.g., U.S. CONST. art. I, § 8, cl. 16 (“reserving to the 
States respectively, the Appointment of the Officers, and the 
Authority of training the Militia according to the discipline 
prescribed by Congress”); id. art. I, § 10, cl. 2 (“No State 
shall, without the Consent of the Congress, lay any Imposts 
or Duties on Imports or Exports, except what may be abso- 
lutely necessary for executing its inspection Laws . . . .”). 

42 

executive is to perform duties.18 
Many single out state 

legislatures as the appropriate agents for exercising fed- 
eral power, often subject to explicit qualifications or res- 
ervations of power in Congress.19 At least one provi- 
sion, the Supremacy Clause, singles out state judges for 
the assignment of federal responsibilities.20 The Consti- 
tution’s reliance on particular state institutions under 
such provisions is so carefully crafted that at least one 
provision, the Guarantee Clause, specifies that the 
United States can intervene to protect States “against 
domestic Violence” “on Application of the Legislature, 
or of the Executive (when the Legislature cannot be con- 
vened).” U.S. CONST. art. IV, § 4. 

In light of the Constitution’s precise distinctions 
among state legislative, executive, and judicial powers, 
the Founders’ decision to vest specific authority in state 
legislatures must be understood to be exclusive of state 

18 See, e.g., U.S. CONST. art. I, § 2, cl. 4 (“When vacancies 
happen in the Representation from any State, the Executive 
Authority thereof shall issue Writs of Election to fill such 
Vacancies.”); id. art. IV, § 2, cl. 2 (requiring States to extra- 
dite persons charged with treason “on Demand of the execu- 
tive Authority of the State from which he fled”). 

19 See, e.g., U.S. CONST. art. I, § 4, cl. 1 (“The Times, 
Places, and Manner of holding Elections for Senators and 
Representatives, shall be prescribed in each State by the Leg- 
islature thereof; but Congress may at any time by Law make 
or alter such Regulations . . . .”); id. art. V (amendment may 

be proposed “on the Application of the Legislatures of two 
thirds of the several States”); id. (constitutional amendments 
become effective when ratified “by the Legislatures of three 
fourths of the several States, or by Conventions in three 
fourths thereof, as the one or the other Mode of Ratification 
may be proposed by Congress”). 

20 See U.S. CONST. art. VI, cl. 2 (“[T]he Judges in every 
State shall be bound [by the Constitution, laws and treaties of 
the United States], any Thing in the Constitution or Laws of 
any State to the Contrary notwithstanding.”). 

43 

executive or judicial power to prescribe the “Manner” of 
appointing electors. See, e.g., Russello v. United States, 
464 U.S. 16, 23 (1983); McPherson, 146 U.S. at 27. 
Thus, while the Constitution does not generally require 
States to observe the separation of powers principles that 
inhere in our federal constitutional structure, States must 
provide for the manner of appointment of electors 
through the legislative process rather than by resort to 
the executive or judicial branches of their respective 
governments. Cf. Thornton, 514 U.S. at 804 (“the con- 
text of federal elections provides one of the few areas in 
which the Constitution expressly requires action by the 
States”). 

The Florida legislature could have delegated to state 
courts some authority over the manner appointing elec- 
tors. See McPherson, 146 U.S. at 34-35 (“it is, no 
doubt, competent for the legislature to authorize the 
governor, or the Supreme Court of the State, or any 
other agent of its will, to appoint these electors”) (em- 
phasis added). But any such delegation must be both 
clear and explicit. Because the power to determine the 
manner of appointing electors is vested by the Constitu- 
tion itself in the state legislature—and only in the state 
legislature—it cannot be presumed to have been dele- 
gated sub silentio, nor can another branch arrogate it to 
itself without the legislature’s express approval. 

C. The Florida Supreme Court Has Not 

Been Granted Authority To Determine 
The Manner Of Appointing Presidential 
Electors 

In Florida, the legislature has directed that the 
State’s presidential electors be appointed in accordance 
with the results of a popular election. See Fla. Stat. § 
103.011. The Florida legislature has expressly assigned 
the task of certifying the results of that election to the 
Department of State, see id., and the duty to make and 
sign the certificates of election for presidential electors 

44 

to the Elections Canvassing Commission. See Fla. Stat. 
§ 102.121. Moreover, Florida law makes clear that 
counties must certify election results by 5:00 p.m. on 
November 14. See Fla. Stat. §§ 102.111(1), 102.112(1). 
The members of the Elections Canvassing Commis- 
sion—the executive branch entity the legislature has 
charged with the obligation (or discretion) to certify the 
results “as soon as the official results are compiled from 
all counties,” § 102.111—have repeatedly expressed 
their intention to comply with the statutory deadline of 
November 14 and to appoint electors based on the elec- 
tion returns submitted by that date. That decision would 
be consistent with the “manner” the Florida legislature 
has directed for the appointment of electors. 

The state supreme court, however, enjoined the 
Elections Canvassing Commission from certifying the 
results under the statutory schedule, and has invented an 
entirely new deadline that has no basis in any statute or 
other legislative enactment. Because the Constitution 
specifically assigns to state legislatures the power to di- 
rect the manner of appointing presidential electors, how- 
ever, the court was constrained to follow the statutory 
scheme established by the Florida legislature. It mani- 
festly failed to do so.21 

The Florida Supreme Court made clear that it felt no 
obligation to adhere to the statutes applicable to the elec- 

21 These issues involve, to a certain extent, the examination 
of Florida state statutes. Because this inquiry is inextricably 
bound with the federal question of whether the Florida Su- 
preme Court’s order was unconstitutional under Article II, 
this Court may conduct an independent review of the state- 
law bases asserted in defense of the court’s action. See, e.g., 
Martin v. Hunter’s Lessee, 14 U.S. 304, 357-58 (1816) (re- 
versing state court’s title determination under state law, 
where necessary to proper construction and application of 
treaty); St. Martin Evangelical Lutheran Church v. South 
Dakota, 451 U.S. 772, 780 n.9 (1981). 

45 

tion of presidential electors. See, e.g., Pet. App. 8a (re- 
jecting “a hyper-technical reliance upon statutory provi- 
sions”); id. at 31a (“Technical statutory requirements 
must not be exalted over the substance of this right [of 
the citizens to vote]”); id. at 36a (“the will of the elec- 
tors supersedes any technical statutory requirements”). 
Whether or not that approach was correct as a matter of 
Florida law, the importance of the court’s dismissive at- 
titude toward the pronouncements of the legislature is 
that it demonstrates the court’s failure to appreciate the 
restrictions imposed by Article II and the exclusivity of 
legislative power in regard to the manner of appointing 
presidential electors. 

In light of the court’s manifest willingness to depart 
from and reorder the statutory scheme in order to fulfill 
its vision of “the will of the people” (Pet. App. 8a), it is 
unsurprising that the court’s decision turns the govern- 
ing statutes on their head. With respect to the deadline 
for certifying election returns, for example, Florida law 
unambiguously provides that county returns “must be 
filed by 5 p.m. on the 7th day following the . . . general 
election.” Fla. Stat. § 102.112(1). Even the court below 
acknowledged that “the deadline set forth in section 
102.111(1), Florida Statutes (2000), requir[es] that all 
county returns be certified by 5:00 p.m. on the seventh 
day after an election.” Pet. App. 4a. The court con- 
cluded, however, that it would “[a]llo[w] the manual re- 
counts to proceed in an expeditious manner, rather than 
impos[e] an arbitrary seven-day deadline.” Id. at 32a 
(emphasis added). Of course, it was not the court that 
would have been “impos[ing]” the deadline; that dead- 
line was established by preexisting statutory law as an 
integral part of a carefully balanced legislative program 
and timetable for counting ballots and resolving dis- 
putes. Regardless of the wisdom of the court’s decision 
to rewrite the statutory deadline, it is plain that the court 
substituted its judgment for that of the legislature. Al- 
though the Constitution may permit state courts to take 
such action as applied to the elections of state officials, 

46 

Article II precludes such judicial lawmaking in the con- 
text of appointing presidential electors. 

Lest there be any doubt as to the legislative nature 
of the decision below, the court also adopted an entirely 
new, and utterly arbitrary, deadline for the submission of 
election returns. The court acknowledged that it was not 
basing this decision on any statutory provision. Pet. 
App. 37a-38a (“we must invoke the equitable powers of 
this Court to fashion a remedy that will allow a fair and 
expeditious resolution of the questions presented here”). 
Eschewing the “arbitrary” November 14 deadline estab- 
lished in advance by the legislature, the court imposed 
its own deadline of November 26 for the submission of 
county returns—a date vastly more arbitrary than the 
statutory deadline because the legislature’s deadline was 
part of a carefully crafted system and timetable for pro- 
tests, recounts, contests and certification. The court 
plucked out one date and changed it without any appar- 
ent regard for the effect of its decision on the balance of 
the carefully wrought legislative plan. Whether such an 
order is within the equitable powers of a Florida court in 
the ordinary course has no bearing on this case. Rather, 
it is clear that the court below reached out to affect the 
“manner” of appointing presidential electors by chang- 
ing the deadline for the submission of vote tallies, and 
thereby arrogated to itself a power that the Constitution 
has instilled only in the state legislature. 

The deadline for certifying election results indis- 
putably is encompassed within the “manner” of appoint- 
ing electors vested by the Constitution in the state legis- 
latures. See Parsons v. Ryan, 60 P.2d 910, 912 (Kan. 
1936); McClendon v. Slater, 554 P.2d 774, 776-77 
(Okla. 1976). Each State—and, often, the political sub- 
divisions within the States—conduct elections in differ- 
ent ways. Regardless of the voting mechanism, how- 
ever, the need for finality dictates that a deadline be set 
for certifying the returns. The Florida legislature has es- 
tablished precisely such a deadline: 5:00 p.m. on the 7th 

47 

day following the election. As noted above, that dead- 
line is tied to other procedures and deadlines and ulti- 
mately to the certification and appointment of the elec- 
tors. 

The Florida Supreme Court did not even attempt to 
rest its exercise of judicial power over the manner of ap- 
pointing electors on any statute or other delegation of 
such power to it by the legislature. Instead, the court re- 
peatedly invoked the Florida constitution as “[t]he abid- 
ing principle governing all election law in Florida.” Pet. 
App. 14a; see also, e.g., id. at 30a. While that might 
well be an acceptable source of law for an election of a 
state official, it cannot suffice with respect to the ap- 
pointment of presidential electors. As this Court has ex- 
plained, “[t]his power [to determine the manner of ap- 
pointing electors] is conferred upon the legislatures of 
the States by the Constitution of the United States, and 
cannot be taken from them or modified by their State 
constitutions.” McPherson, 146 U.S. at 35 (emphasis 
added). The Florida Supreme Court’s decision, which 
disregards this principle, cannot be reconciled with the 
framework imposed on the States by Article II. 

The particular provisions of the state constitution on 
which the Florida Supreme Court relied highlight the 
federal constitutional error in its analysis. The court 
stressed that “[t]he right of suffrage is the preeminent 
right contained in the [state] Declaration of Rights,” and 
asserted that “[t]o the extent that the Legislature may 
enact laws regulating the electoral process, those laws 
are valid only if they impose no ‘unreasonable or unnec- 
essary’ restraints on the right of suffrage.” Pet. App. 
29a-30a. In light of this construction, the court held that 
the Elections Canvassing Commission could not reject 
untimely returns. Id. at 31a-32a. But, as the early prac- 
tice demonstrates (and this Court’s decision in McPher- 
son confirms), there is no “right of suffrage” under the 
federal Constitution in the context of selecting presiden- 
tial electors. The state legislatures may make such ap- 

48 

pointments themselves, without conducting any election 
whatsoever. Indeed, Florida itself did so in 1868. 

It thus makes no difference to the constitutional 
analysis whether the Florida Supreme Court’s decision 
to preclude the Secretary of State from certifying the 
election on November 14, or to establish a new certifica- 
tion deadline of November 26, was mandated or inspired 
by the state constitution. In the absence of an express 
delegation from the legislature, the court was precluded 
from issuing any directive not founded in preexisting 
law that could affect the manner of appointing presiden- 
tial electors. The court’s order in this case clearly had 
that effect. It is, therefore, unconstitutional.22 

D. As A Result Of Its Unconstitutional 

Arrogation Of Power, The Florida 
Supreme Court’s Decision Is A Nullity 

This Court has never before confronted the situation 
in which a state court exerted authority expressly with- 
held from it by Article II of our Constitution, and thus 
has not had the opportunity to consider the correct rem- 
edy for such an act. Two related lines of precedent indi- 
cate, however, that the proper remedy for the Florida 
Supreme Court’s violation of Article II is nullification of 
its attempt to interfere in the manner in which Florida’s 
electors are appointed. 

22 Contrary to the Gore respondents’ suggestion, enforcing 
Article II in this case would not lead to the “federalization” 
of all state-court decisions in the election context. See Gore 
Opp. 17. In some cases, there might be legitimate questions 
of state law arising from the implementation of a legislatively 
authorized scheme of appointing electors. This case, how- 
ever, does not even present a close call. The court below 
strayed so far from the framework established by the Florida 
legislature that its unconstitutional exercise of authority over 
the electoral process is patent. 

49 

First, the Court has long held that “the Constitution 
and constitutional laws of the [United States are] the su- 
preme law of the land; and, when they conflict with the 
laws of the States, they are of paramount authority and 
obligation.” Ex Parte Siebold, 100 U.S. 371, 399 
(1879); see also Milliken v. Bradley, 418 U.S. 717, 744 
(1974). A state law that conflicts with the Constitution 
is void. E.g., Gunn v. Barry, 82 U.S. 610, 623-24 
(1872). As discussed above, the Florida Supreme 
Court’s decision to waive the statutory deadlines for cer- 
tifying the election results, and to impose a deadline of 
its own invention, amounts to new rules of law. The 
court was without constitutional authority to announce 
such rules, however, because Article II vests exclusive 
authority over such matters in the Florida legislature. 
As a result, the Florida Supreme Court’s efforts at judi- 
cial legislation are void. “An unconstitutional law is 
void, and is as no law.” Siebold, 100 U.S. at 376; see 
also Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 
759-60 (1995) (Scalia, J., concurring). 

Second, it is well-established that an act by a state 
official in violation of duties or obligations imposed by 
the Constitution is ultra vires and, thus, void. See Ex 
Parte Young, 209 U.S. 123, 159-60 (1908). “The Con- 
stitution and laws of the United States are the supreme 
law of the land, and to these every citizen of every State 
owes obedience, whether in his individual or official ca- 
pacity.” Siebold, 100 U.S. at 392. Because the Consti- 
tution vests exclusive authority over the manner of ap- 
pointing electors in the legislature, and because that au- 
thority has not been delegated by the Florida legislature 
to the judiciary, the state supreme court’s intrusion into 
the electoral process was ultra vires. Cf. Steel Co. v. 
Citizens for a Better Environment, 523 U.S. 83, 101-02 
(1998) (“For a court to pronounce upon the meaning or 
the constitutionality of a state or federal law when it has 
no jurisdiction to do so is, by very definition, for a court 
to act ultra vires”). The supreme court’s decision, there- 
fore, should be vacated and given no force or effect. 

50 

See, e.g., California v. Superior Court, 482 U.S. 400, 
412 (1987) (reversing without remand California Su- 
preme Court decision in contrave ntion of the Extradition 
Act, which implements the Extradition Clause of Article 

IV). 

Vacatur of the decision below would confirm that 
the Secretary of State and the Elections Canvassing 
Commission have the authority—expressly delegated to 
them by the legislature—to certify the results of the 
election based on returns received by the statutory dead- 
line of November 14. And, because the state supreme 
court’s injunction precluding the responsible executive 
branch officials from doing so vi olated the Constitution 
and is, therefore, a legal nullity, those officers may exer- 
cise their discretion to certify the election nunc pro tunc 
to that date. If this Court vacates the judgment below 
and the Elections Canvassing Commission takes such 
action, some of the recently filed election challenges to 
the election results may be mooted.23 In any event, en- 
forcing the constitutional structure in this case will im- 
bue this election with the finality that the carefully 
wrought federal system was meant to secure. 

CONCLUSION 

The judgment of the Supreme Court of Florida 
should be vacated. 

Respectfully submitted. 

23 For example, the Vice President has complained that the 
Miami-Dade County Canvassing Board improperly stopped 
its manual recount after the state supreme court announced 
its November 26 certification deadline. But the Miami-Dade 
recount had not even begun until after the statutory deadline 
had expired on November 14, and the Supreme Court of 
Florida opened the door to such a recount on November 17. 

MICHAEL A. CARVIN 
COOPER, CARVIN & 

ROSENTHAL, P.L.L.C. 
1500 K Street, N.W. 
Suite 200 
Washington, D.C. 20005 
(202) 220-9600 

BARRY RICHARD 
GREENBERG TRAURIG, P.A. 
101 East College Avenue 
Post Office Drawer 1838 
Tallahassee, FL 32302 
(850) 222-6891 

GEORGE J. TERWILLIGER III 
TIMOTHY E. FLANIGAN 
MARCOS D. JIMÉNEZ 
WHITE & CASE LLP 
First Union Financial Center 
200 South Biscayne Blvd. 
Miami, Florida 33131 
(305) 371-2700 
THEODORE B. OLSON 

Counsel of Record 
TERENCE P. ROSS 
DOUGLAS R. COX 
THOMAS G. HUNGAR 
MARK A. PERRY 
GIBSON, DUNN & CRUTCHER LLP 
1050 Connecticut Avenue, N.W. 
Washington, D.C. 20036 
(202) 955-8500 

BENJAMIN L. GINSBERG 
PATTON BOGGS LLP 
2550 M Street, N.W. 
Washington, D.C. 20037 
(202) 457-6000 

JOHN F. MANNING 
435 W. 116th Street 
New York, N.Y. 10027 

WILLIAM K. KELLEY 
Notre Dame Law School 
Notre Dame, Indiana 46556 

BRADFORD R. CLARK 
2000 H Street, N.W. 
Washington, D.C. 20052 

Counsel for Petitioner 

November 28, 2000 

2 

70150759_16.DOC