No. 00-836 

IN THE 

Supreme Court of the United States 
Supreme Court of the United States 

_______________________________ 

ON WRIT OF CERTIORARI 

TO THE FLORIDA SUPREME COURT 

Counsel Press LLC 

(800) 274-3321 • (800) 359-6859 

GEORGE W. BUSH, 

Petitioner, 

v. 

PALM BEACH COUNTY CANVASSING BOARD, et al., 

Respondents. 

THE AMERICAN CIVIL RIGHTS UNION 
FOR LEAVE TO FILE AMICUS CURIAE BRIEF 
AND BRIEF OF AMICUS CURIAE IN SUPPORT 
OF THE PETITIONER 

JOHN C. ARMOR 

Counsel of Record 
“KettleRock” 
Box 243, Highlands, NC 28741 
(828) 526-5770 or 526-3149 

Of Counsel: 

PETER FERRARA 

Executive Director, ACRU 
1232 Pine Hill Road 
McLean, VA 22101 
(703) 917-4247 

Attorneys for Amicus Curiae 

163735 

ii 

Cited Authorities 

Page 

TABLE OF CITED AUTHORITIES 

Cases: 

Anderson v. Celebrezze, 
. . . . . . . . . . . . . . . . . . . 9, 10, 11 

Hawke v. Smith, 253 U.S. 221 (1920) 
. . . . . . . . . . 2, 3, 5 

Kimble v. Swackhamer, 439 U.S. 1385 (1978) . . . . . 
5, 6 

Leser . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

United States Constitution: 

Article II, Section 1 
. . . . . . . . . . . . . . . . . . . . . . . . passim 

First Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

10 

Eighteenth Amendment 
. . . . . . . . . . . . . . . . . . . . . . . 

2 

Law Review Article: 

American Bar Association Journal, August, 1977, 
page 1108, “The Bloodless Revolution of 1976.” 
by John C. Armor and Phillip Marcus . . . . . . . . . . 10 

iii 

Cited Authorities 

Page 

Texts: 

Thomas Jefferson, Collected Writings, collection 
maintained by the University of Virginia on the 
Internet: http://etext.virginia.edu/jefferson/ 
quotations/ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
7, 8 

The Federalist, by James Madison, Alexander 

Hamilton and John Jay, 1787, No. 68 . . . . . . . . . . 
9 

Other Authority: 

Florida Supreme Court . . . . . . . . . . . . . . . . . . . . . . . 11 

MOTION FOR LEAVE TO FILE AMICUS CURIAE 
BRIEF ON BEHALF OF THE AMERICAN CIVIL 
RIGHTS UNION 

The American Civil Rights Union respectfully moves 
the Court pursuant to Rule 42 of the Rules of the United 
States Supreme Court, for leave to file the annexed amicus 
curiae brief. In support whereof, it states: 

1. The American Civil Rights Union was established in 
1998 as a § 501(c)(3) as an educational and legal charity 
dedicated to basic constitutional issues. Its purpose is as 
stated on its Internet webpage is “Civil rights are the 
fundamental liberties that all Americans should enjoy as a 
matter of basic morality, as well as constitutional protection.” 

2. The Policy Board of the ACRU consists of The Hon, 
Robert Bork, The Hon. Robert B. Carleson, The Hon. Linda 
Chavez, The Hon. Edwin Meese, III, Mr. Joseph Perkins, 
The Hon. William Bradford Reynolds, The Hon. Kenneth 
W. Tomlinson, Professor James Q. Wilson, Ambassador 
Curtin Winsor, Jr., all of whom in one capacity or another 
have been active throughout their careers in constitutional 
issues. 

3. The interest of the ACRU in this case is the Court’s 
first impression consideration of the authority of the Florida 
legislature (and any other state legislature in any future 
election) under the Constitution, Article II, Section 1, 
paragraph 2, to adopt and control the process of choosing its 
Electors for President and Vice President. 

4. Counsel for the Amicus has contacted the counsel 
for the Parties in this case and understands, that while this is 
being typeset, all Parties are entering into a Consent Order 
for the acceptance of all Amici briefs, making this Motion 
unnecessary. 

Respectfully submitted, 

JOHN C. ARMOR 
Attorney for Amicus Curiae 
“KettleRock” 
Box 243, Highlands, NC 28741 
(828) 526-5770 or 526-3149 

1 

INTEREST OF AMICUS1 

The interest of the Amicus, American Civil Rights 
Union, in the central issues of this case is as described in 
paragraphs 1-3 of the Motion for Leave to File Amicus Curiae 
Brief, supra. These statements are incorporated here by 
reference. 

SUMMARY OF ARGUMENT 

This case concerns a decision of the Supreme Court of 
Florida that changed substantive provisions of the Florida 
election law concerning the presidential election. The precise 
questions posed by this Court both address whether the 
actions of the Florida Supreme Court are in accord with the 
federal election statutes codified in Title 3, beginning in 1877 
in response to the contentious Hayes-Tilden Election of 1876. 

These statutes have a specific constitutional basis in 
Article II, Section 1. Respect for that basis, that the state 
election laws are committed to the “legislature,” not to the 
courts, nor to referenda, not to any other entity than the 
elected representatives within each state. The Congressional 
statutes depend on that authority. 

Based on both the theory of American government and 
a prior decision of this Court on the meaning of the word 
“legislature,” the ACRU believes that the Florida Supreme 
Court has not only violated those statutes, but has also 
violated the plain language of the Constitution itself. 

1. This amicus curiae brief filed in support of the Petitioner 
was funded solely by the ACRU and authored entirely by counsel 
for the ACRU. 

2 

This is a highly volatile election, and there could be 
either a resolution of the outcome or even a concession by 
one of the candidates. But, even in that case, the Amicus 
believes that this Court should resolve the issue for the 
purpose of proper conduct of presidential elections, as it has 
in the past. 

As this brief is written, the Certification of Election has 
just been signed in Florida, awarding the 25 Electoral College 
votes in that state to George Bush. The Amicus understands 
that Electoral College results in two other states’ results are 
undergoing an automatic recount under state laws, but would 
not affect the national result, regardless of their outcomes. 
Litigation on several Florida issues will apparently will be 
filed Monday morning, so the ultimate outcome is unknown. 

ARGUMENT 

I. According to a Prior Decision of this Court, the Word 
“Legislature” as Used in the Constitution Means the 
State Legislature, and No Other Entity 

While the question of the constitutional basis of the state 
part of federal presidential elections has never been before 
this Court, the question of what the Constitution means by 
the word “legislature” has been decided by this Court. 

Hawke v. Smith, 253 U.S. 221 (1920), presented the 
Court with the question whether the State of Ohio could 
conduct a binding referendum, under its own Constitution 
and laws, concerning the ratification by that state of 
the Eighteenth Amendment which created Prohibition. 
The legislature of Ohio had already acted to ratify that 
Amendment, but that action was petitioned to referendum, 
which would have reversed that ratification if it passed. 

3 

The decision of this Court was that the Framers of the 
Constitution well understood the leaning of the word 
“legislature” in Article V. As this Court then said in Hawke, 
supra, at 227, 

The framers of the Constitution might have 
adopted a different method. Ratification might 
have been left to a vote of the people, or to some 
authority of government other than that selected. 
The language of the article is plain, and admits of 
no doubt in its interpretation. It is not the function 
of courts or legislative bodies, national or state, 
to alter the method which the Constitution has 
fixed. 

Later in the opinion, this Court was even more clear in 
the meaning of the word “legislature.” It said, 

What did the framers of the Constitution mean in 
requiring ratification by “legislatures”? That 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, at 227. 

The Court concluded, therefore, that the only action 
directed and permitted by any state in ratifying a 
constitutional amendment was the action of the state 
legislature itself, and no other action including any 
referendum by the people. 

4 

In the instant case, Article II, Section 1, commits to the 
“legislature” of each state the writing of the laws for the 
choosing of the Electoral College. The freedom of the 
legislatures to act within that grant of power from the 
United States Constitution is demonstrated by the fact that 
Maine and Nebraska have chosen to have their two Electors 
who match their Representatives elected by congressional 
district, rather than statewide, winner-take-all contests. 
(If all states had selected district election of Electors, odds 
are the 2000 Election would have been over, early on the 
morning of 8 November, and all the uncertainty and litigation 
that has occurred would have been eliminated. But that is a 
consideration for the future, not for this case.) 

There is no reason to believe that the Framers were any 
less aware that the word “legislature” was “plain, and admits 
of no doubt in its interpretation” when they wrote 
the Electoral College provisions, than when they wrote 
Article V. Until and unless Article II, Section 1, of the 
Constitution is amended in such manner as the people, 
through Congress and their state legislatures shall decide, 
any action of any entity, in the courts or in the executive in 
any state which rewrites provisions of the provisions of its 
presidential election process, should not stand. 

Other parties to this case will fully discuss the statutes 
Congress has passed pursuant to Article II, Section 1. This 
Amicus will not address those statutes except to say that the 
grant of power to Congress to adopt them, and the mandate 
of this Court to apply them, both rest on the express language 
of Article II, Section 1. 

5 

A. The Only Action the Florida Supreme Court Could 

Have Taken under Article II, Section 1, of the 
Constitution Would Have Been an Advisory Opinion. 

A decision made by then-Justice Rehnquist, sitting as a 
Circuit Justice, leads to this conclusion. In Kimble v. 
Swackhamer, 439 U.S. 1385 (1978), the question presented 
was whether an advisory referendum could be conducted 
in Nevada concerning the legislature’s possible ratification 
of the Equal Rights Amendment to the United States 
Constitution. 

The appellants in Swackhamer relied on Hawke, supra, 
for the conclusion that a referendum could play no part in 
the ratification process, and therefore they were entitled to 
emergency relief to prevent that referendum from taking 
place. Relief on that basis was denied in the lower courts, 
and the request for emergency relief came before then-Justice 
Rehnquist as Circuit Justice. 

Because the referendum was “non-binding,” and the 
Nevada legislature was free to carry out its sole and 
constitutional duty of ratifying the proposed amendment, this 
Court concluded that the referendum did not violate the 
Article V definition of “legislature.” 

The conclusion was, 

Under the Nevada statute in question, ratification 
will still depend on the vote of the Nevada 
Legislature, as provided by Congress and by Art. 

V. I would be most disinclined to read either 
Hawke, supra, or Leser, supra, or Art. V as ruling 
out communication between the members of the 

6 

legislature and their constituents. If each member 
of the Nevada Legislature is free to obtain the 
views of constituents in the legislative district 
which he represents, I can see no constitutional 
obstacle to a nonbinding, advisory referendum of 
this sort, 

Swackhamer, 1377, 1378. 

There are statutes which allow courts to issue advisory 
opinions under specialized circumstances. Given the 
importance and urgency of this particular matter, the Florida 
Supreme Court might even have used its general equity 
powers to issue an advisory opinion to the parties in this 
matter. By analogy to the present case, Swackhamer suggests 
to this Court that an advisory opinion by the Florida Supreme 
Court would have been entirely appropriate. 

What made that Court’s action inappropriate was not its 
opinions about the operation of Florida law, which could 
have been considered by both Secretary Harris and the 
Florida legislature, but the binding nature of its orders, which 
struck down statutory requirements established by that 
legislature and binding on that public official, under Article 
II, Section 1. 

A word must be said about deadlines. All deadlines 
are “arbitrary” to some extent, whether they are set by 
legislatures, courts, or anyone else. Even the calendar by 
which all deadlines are measured is itself arbitrary, if one 
goes back to Pope Gregory in 1582 when he established it 
by papal fiat and removed ten days from the year. Neither 
this election, nor modern life in general, would be possible 
if the standard was “do things whenever you get around to 
it” 

7 

The question is not whether the deadline for certification 
by Secretary Harris was “arbitrary.” The question is who 
has the responsibility for setting that deadline. The 
constitutional answer is, that power belongs solely to the 
“legislature.” 

B. American Political Theory also Supports the 

Decisions of the Framers to Give Control of the 
Election of Presidents to Elected Officials, Both State 
and Federal. 

In the view of the American Civil Rights Union, the text 
of the Constitution resolves the questions presented in this 
case. However, there are philosophical reasons well grounded 
in American political theory why the process of electing 
Presidents of the United States should be in the hands initially 
of the legislatures that write the election laws, and in the 
hands of Congress thereafter. 

Thomas Jefferson wrote to a friend about the essential 
difference between courts and legislators as deciders of 
public policy. The Amicus hopes that the Court will consider 
Jefferson’s words without offense. 

Contrary to all correct example, [the Federal 
judiciary] are in the habit of going out of the 
question before them, to throw an anchor ahead 
and grapple further hold for future advances of 
power. They are then in fact the corps of sappers 
and miners, steadily working to undermine the 
independent rights of the States and to consolidate 
all power in the hands of that government in which 
they have so important a freehold estate. 

Thomas Jefferson: Autobiography, 1821. ME 1:121. 

8 

Of legislators, however, Jefferson wrote, “It is not from 
[the Legislative] branch of government we have most to fear. 
Taxes and short elections will keep them right.” — Thomas 
Jefferson to Thomas Ritchie, 1820. ME 15:297 

Jefferson, of course, understood as well as anyone the 
need for independence of judges in order to make judicial 
decisions free of political interference. However, the opposite 
conclusion also follows, that political decisions must be made 
by political bodies. This is what the Framers did in crafting 
Article II, Section 1, at issue in this case. 

In short, Jefferson’s observation deals with the remedies 
available if the decision-makers reach conclusions that the 
American people, in their ultimate sovereignty, conclude is 
wrong. Legislatures, both state and federal, face regular, 
partisan, contested elections. If in the judgment of the people 
of Florida, or the people of the United States, that such 
actions in the 2000 Election were wrong, those elected 
officials will be removed from their positions, The remedy 
for political mistakes will be political. 

If, on the other hand, courts make such decisions, there 
is no remedy. State judges in Florida face “retention” 
elections every six years,. Federal justices and judges, by 
deliberate decision of the Constitution, face no elections 
whatsoever. This is immensely important for the 
independence of the judiciary from political pressures. 

But, it is precisely this independence from the political 
process which supports Jefferson’s conclusion that political 
questions should not be decided by judges. And the 
uber-political question in the United States is the election 
of its President. 

9 

To the same effect is the discussion of the “mode of 
appointment of the Chief Magistrate of the United States” 
in The Federalist, No. 68, written by Alexander Hamilton. 
The hopes of the authors of The Federalist, that the Electoral 
College “affords a moral certainty that the office of President 
will never fall to the lot of any man who is not in eminent 
degree endowed with the requisite qualifications,” have fallen 
short of the mark in some instances. “Talents for low intrigue 
and the little arts of popularity” have led to some less than 
eminent administrations. 

Still, the theory of the election of the President, there 
presented, still holds. Both the members of the Electoral 
College, and the Members of the House of Representatives 
who would act if the College failed to produce a majority, 
were subject to direct election by the people. The central 
decisions were all political, and to be made in the political 
process. This is in accord with Title 3. This is not in accord 
with the rewriting of the terms of this election in Florida by 
the Florida Supreme Court. 

C. The Application of Anderson v. Celebrezze, 460 U.S. 
780 (1983), to the Instant Case Does Not Support the 
Action of the Florida Supreme Court in this Matter, 
but Does Support This Court’s Continuation to a 
Decision Even if the 2000 Election is Concluded 
before the Hearing on This Matter 

On an accelerated schedule such as this case, it is 
impossible for any Amicus to see the legal positions of the 
parties outlined in detailed Petitions for Certiorari. However, 
on information and belief from following news accounts, 
including public interviews with leading counsel for all sides 
in this matter, the American Civil Rights Organization 

10 

believes that those who support the actions of the Florida 
Supreme Court will advance this Court’s decision in 
Anderson v. Celebrezze, supra, as a basis for the Florida 
Supreme Court to act in this matter, and therefore for this 
Court to allow its decision to stand. 

The author of this brief was the legal architect of both 
Eugene McCarthy’s litigation in 1976 and John Anderson’s 
in 1980, to obtain ballot access in the several states as 
independent candidates for President. The history of the 
McCarthy litigation, which struck down the election laws of 
26 states, is in the American Bar Association Journal, 
August, 1977, at p. 1108. The history of the Anderson 
litigation, which struck down election laws in ten states, is 
reviewed in the Anderson case, itself. 

All of these cases, in all years and at all levels, concerned 
only the right to compete, the chance to be on the ballot 
without First Amendment discrimination based on the 
political beliefs of the candidate. None of these cases had 
anything to do with Article II, Section 1. These cases would 
have been exactly the same if the Electoral College had been 
abolished before those elections, in favor of direct, popular 
election of the President. 

None of the supporters of Eugene McCarthy in 1976, 
and few of the supporters of John Anderson in 1980, were 
under any delusion that either could win the Presidency. All 
of those supporters were firmly convinced, however, that 
these were responsible voices that should not be silenced 
under the First Amendment. Neither Article II, Section 1, 
nor the Electoral College was ever mentioned in any of those 
cases. 

11 

So, this entire line of cases fails to support a conclusion 
that the Florida Supreme Court was correct to act as it did in 
the instant case. 

The present case, on the other hand, deals with who 
could, should, and would be elected President of the United 
States. It deals directly and unavoidably with specific grants 
of power by the Constitution to the legislatures of the several 
states and to the Congress, concerning the Electoral College. 

The only application of the Anderson case to the present 
one, is this: This Court should exercise its jurisdiction in 
defense of the constitutional provisions — which it has begun 
by granting certiorari. Then, it should use that jurisdiction 
to eliminate the interference in that constitutional system by 
the Florida Supreme Court. And further, even if this election 
should be decided before this Court rules on this case, this 
Court should still decide the case. Just as the Anderson case 
was worthy of decision in 1983, three years after the election 
in question, the same consideration applies here. 

12 

CONCLUSION 

Because of the “plain” language of the Constitution that 
“admits of no doubt in interpretation” in giving control of 
the presidential election laws in Florida to the Florida 
“legislature,” the Amicus submits that this Court should rule 
that the Florida Supreme Court acted outside the bounds of 
the Constitution and strike down its revisions of Florida law. 
This conclusion is supported by prior decisions of this Court, 
and by the American philosophy of political responsibility 
for political decisions. 

Then, having struck down the unconstitutional actions 
of the Florida Supreme Court, this Court should recognize 
that its own jurisdiction is then exhausted, and conclude the 
matter with no other action. 

Respectfully submitted, 

JOHN C. ARMOR 
Attorney for Amicus Curiae 
“KettleRock” 
Box 243, Highlands, NC 28741 
(828) 526-5770 or 526-3149 

Of Counsel: 

PETER FERRARA 
Executive Director, ACRU 
1232 Pine Hill Road 
McLean, VA 22101 
(703) 917-4247