No. 00-836 

In the 

SUPREME COURT OF THE UNITED STATES 

——————— ——————— 

GEORGE W. BUSH, 

Petitioner, 

v. 

PALM BEACH COUNTY CANVASSING BOARD, ET AL. 

——————— ——————— 

On Writ of Certiorari to the 
Supreme Court of Florida 

——————— ——————— 

BRIEF FOR THE STATE OF ALABAMA, 
THE ATTORNEY GENERAL OF ALABAMA, AND 
THE SECRETARY OF STATE OF ALABAMA, 
AS AMICI CURIAE, SUPPORTING REVERSAL 

——————— ——————— 

Counsel for Amici Curiae 

OFFICE OF THE 

ATTORNEY GENERAL 
State of Alabama 
11 South Union Street 
Montgomery, Alabama 
36130-0152 
(334) 242-7300 

BILL PRYOR 

Attorney General of Alabama 
Counsel of Record 
MARGARET L. FLEMING 
JOHN J. PARK, JR. 
CHARLES B. CAMPBELL 
SCOTT L. ROUSE 
A. VERNON BARNETT IV 
RICHARD E. TREWHELLA, JR. 

Assistant Attorneys General 

i 

QUESTION PRESENTED 

In this Brief, amici curiae address the following 
question: 

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 controversies 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. 

ii 

TABLE OF CONTENTS 

Page 

Question Presented ............................................................. i 

Table of Contents ...............................................................ii 

Table of Authorities........................................................... iv 

Interest of Amici Curiae..................................................... 1 

Summary of Argument....................................................... 3 

Argument............................................................................ 4 

I. Material Post-Election Changes In State 
Canvassing Procedures Violate Due Process. .............. 4 

A. Roe v. Alabama....................................................... 5 

B. The Costs and Consequences of Roe v. 

Alabama................................................................ 10 

C. Other Cases Invalidating Post Hoc Changes 
in Election Procedure............................................ 11 

II. The Judgment of the Supreme Court of Florida 
Violates Due Process by Retroactively 
Changing Florida Election Procedures. ..................... 13 

A. The Judgment of the Supreme Court of 

Florida Retroactively Changed Florida 
Election Procedures. ............................................. 14 

B. The Judgment of the Supreme Court of 

Florida Gives Greater Weight to Votes in 
Counties Where a Protest Is Filed by 
Delaying Election Contests Statewide. ................ 16 

iii 

TABLE OF CONTENTS — Continued 

Page 

C. By Changing the Statutory Protest and 

Contest Periods, the Supreme Court of 
Florida Gave an Unfair Advantage to a 
Campaign That Chose to “Front-Load” its 
Challenges Into the Protest Period. ..................... 17 

D. Counting Improperly Marked Ballots That 

Were Not Counted in the Past Dilutes the 
Votes of Those Who Properly Marked Their 
Ballots. .................................................................. 18 

E. By Changing the Statutory Protest and 

Contest Periods, the Supreme Court of 
Florida Deprived Voters of the Right to 
Prosecute an Effective Election Contest. ............. 20 

F. Counting Partially Punched Ballots 

Without Clear Standards Attributes 
Political Speech to Voters Without Their 
Consent and Dilutes Proper Votes by 
“Stuffing the Ballot Box.” ..................................... 21 

III. Both Roe v. Alabama and This Case Illustrate 
the Imperative of Legislative, Not Judicial, 
Supremacy in Establishing Election Rules to 
Ensure Fundamental Fairness. ................................. 25 

Conclusion ........................................................................ 28 

iv 

TABLE OF AUTHORITIES 

Page(s) 

Cases: 

Baker v. Carr, 
369 U.S. 186 (1962)......................................... 18, 21, 24 

Briscoe v. Kusper, 
435 F.2d 1046 (7th Cir. 1970) ..................................... 11 

Brown v. O’Brien, 
469 U.S. 563 (D.C. Cir.), stay granted, 409 
U.S. 1 (per curiam), vacated as moot, 409 U.S. 
816 (1972) ............................................................. 12, 18 

Curry v. Baker, 
802 F.2d 1302, 1315 (11th Cir.), 
cert. denied, 479 U.S. 1023 (1986)................................ 5 

Davis v. Alabama, 
516 U.S. 908 (1995)....................................................... 8 

Duncan v. Poythress, 
657 F.2d 691 (5th Cir. Unit B. Sept. 1981), 
cert. dismissed, 459 U.S. 1012 (1982)..................... 5, 12 

Ex Parte Siebold, 
100 U.S. 371 (1879)............................................... 21, 24 

Gray v. Sanders, 
372 U.S. 368 (1963)............................................... 23, 24 

Griffin v. Burns, 
570 F.2d 1065 (1st Cir. 1978) ............................... 12, 13 

Hellums v. Alabama, 
516 U.S. 938 (1995)................................................... 1, 9 

v 

TABLE OF AUTHORITIES — Continued 

Page(s) 

Longshore v. City of Homewood, 
277 Ala. 444, 171 So. 2d 453 (1965) ........................... 27 

Partido Nuevo Progresista v. Barreto Perez, 
639 F.2d 825 (1st Cir. 1980), 
cert. denied, 451 U.S. 985 (1981).................................. 7 

Reynolds v. Sims, 
377 U.S. 533 (1964)........................................... 4, 16–17 

Roe v. Alabama, 
43 F.3d 574 (11th Cir. 1995) (“Roe I”) ................ passim 

Roe v. Alabama, 
52 F.3d 300 (11th Cir. 1995) (“Roe II”), 
cert. denied, 516 U.S. 908 (1995)........................ passim 

Roe v. Alabama, 
68 F.3d 404 (11th Cir.) (“Roe III”), 
stay denied, 516 U.S. 938 (1995) ........................ passim 

Roe v. Mobile County Appointment Bd., 
676 So. 2d 1206 (Ala. 1995) .......................................... 8 

Roe v. Mobile County Appointing Bd., 
904 F. Supp. 1315 (S.D. Ala.), aff’d sub nom. 
Roe v. Alabama, 68 F.3d 404 (11th Cir.), stay 
denied, 516 U.S. 938 (1995)...................................... 1–2 

United States v. Saylor, 
322 U.S. 385 (1944)............................................... 21, 24 

Welch v. McKenzie, 
765 F.2d 1311 (5th Cir. 1985)................................... 4–5 

West Virginia v. Barnette, 
319 U.S. 624 (1943)..................................................... 23 

vi 

TABLE OF AUTHORITIES — Continued 

Page(s) 

Williams v. Rhodes, 
393 U.S. 23 (1968) .................................................. 4, 22 

Wooley v. Maynard, 
430 U.S. 705 (1977)............................................... 22, 23 

Yick Wo v. Hopkins, 
118 U.S. 356 (1886)....................................................... 4 

Constitutional Provisions and Statutes: 

U.S. Const. art. II, § 1 ...................................................... 27 

U.S. Const. amend. I ................................................ passim 

U.S. Const. amend. XIV ........................................... passim 

3 U.S.C. § 2 (1994)............................................................ 28 

3 U.S.C. § 5 (1994)............................................... i, 3, 14, 27 

42 U.S.C. § 1983 (1994) ...................................................... 6 

Ala. Code § 17-10-10 (Supp. 2000) ..................................... 2 

Ala. Code § 17-15-6 (1995)...................................... 7, 25–26 

Ala. Code §§ 17-15-50 to 17-15-63 (1995)......................... 26 

Ala. Code § 17-15-52 (1995).......................................... 7 

Fla. Stat. § 102.111 (2000) ......................................... 14, 15 

Fla. Stat. § 102.112 (2000) ................................... 14, 17, 20 

Fla. Stat. § 102.166 (2000) ......................................... 14, 16 

Fla. Stat. § 102.168 (2000) ......................................... 14, 16 

vii 

TABLE OF AUTHORITIES — Continued 

Page(s) 

Court Rules: 

Sup. Ct. R. 37.4................................................................... 1 

Other Authorities: 

18 Cong. Rec. 47 (Dec. 8, 1886) ........................................ 28 

Ala. Rptr., 656–659 So. 2d................................................ 10 

The Federalist No. 45 (James Madison) (Clinton 

Rossiter ed., 1961) ...................................................... 28 

Opinion to the Hon. Leland Avery, Hale County 

Probate Judge, Ala. A.G. Op. No. 2000-180 
(June 26, 2000) <http://www.ago.state.al.us/ 
pdfopinions/2000-180.pdf> .......................................... 2 

Opinion to the Hon. Jim Bennett, Secretary of 

State, Ala. A.G. Op. No. 99-00227 (May 31, 
1996) <http://www.ago.state.al.us/pdfopinions/ 
99-00227.pdf> ............................................................... 2 

1 

INTEREST OF AMICI CURIAE 

The State of Alabama, the Attorney General of 
Alabama, Bill Pryor, and the Secretary of State of 
Alabama, Jim Bennett, respectfully submit this Brief as 
amici curiae pursuant to Sup. Ct. R. 37.4. Amici submit 
this Brief because of the striking similarities between this 
case and an Alabama case decided by the United States 
Court of Appeals for the Eleventh Circuit five years ago, 
Roe v. Alabama, involving the counting of unwitnessed 
absentee ballots in the 1994 election for Chief Justice of 
the Supreme Court of Alabama. That case resulted in a 
series of decisions from the Eleventh Circuit holding that 
a post-election change in the procedures for counting 
absentee ballots violated the First and Fourteenth 
Amendments, which require state election procedures to 
be fundamentally fair. See Roe v. Alabama, 43 F.3d 574 
(11th Cir.) (“Roe I”) (certifying question to Supreme Court 
of Alabama), remanded to district court for evidentiary 
hearing after certified question answered, 52 F.3d 300 
(11th Cir.) (“Roe II”), cert. denied, 516 U.S. 908, appeal 
after remand to district court, 68 F.3d 404 (11th Cir.) 
(“Roe III”), stay denied sub nom. Hellums v. Alabama, 516 
U.S. 938 (1995). The Petitioner in this case expressly 
relied upon these decisions of the Eleventh Circuit in 
requesting review by this Court. See Pet. for Cert. at 17– 
18; 22–26; Pet. App. at 63a–64a. The State of Alabama, 
by and through its Attorney General, and the Secretary of 
State of Alabama were defendants in Roe v. Alabama. 
See Roe I, 43 F.3d at 574; Roe II, 52 F.3d at 300; Roe III, 
68 F.3d at 404. The current Attorney General of 
Alabama, then a deputy attorney general, personally 
represented the State and the current Secretary of State 
in that litigation. See Roe II, 52 F.3d at 300; Roe III, 68 
F.3d at 404; see also Roe v. Mobile County Appointing Bd., 
904 F. Supp 1316, 1317 (S.D. Ala.), aff’d sub nom. Roe v. 

2 

Alabama, 68 F.3d 404 (11th Cir.), stay denied, 516 U.S. 
938 (1995). 

Relying on the constitutional principles applied in Roe 

v. Alabama, the State of Alabama reformed its election 
laws to ensure that Alabama courts cannot change the 
rules for counting absentee ballots after an election. See 
Ala. Code § 17-10-10 (Supp. 2000) (“No court or other 
election tribunal shall allow the counting of an absentee 
ballot with respect to which the voter’s affidavit signature 
(or mark) is not witnessed by the signatures of two 
witnesses 18 years of age or older or a notary public (or 
other officer authorized to acknowledge oaths) . . . .”). The 

Attorney General and Secretary of State have relied on 
Roe v. Alabama in enforcing the election laws of Alabama, 
advising election officials, and ensuring that election 
procedures in Alabama are and remain fundamentally 
fair. See, e.g., Opinion to the Hon. Leland Avery, Hale 
County Probate Judge, Ala. A.G. Op. No. 2000-180, at 4 
(June 26, 2000) <http://www.ago.state.al.us/pdfopinions/ 
2000-180.pdf> (“[T]he United States Court of Appeals for 
the Eleventh Circuit has held that a systematic counting 
of unwitnessed and unnotarized absentee ballots violates 
the voting rights of those voters who complied with the 
statutory mandates.”); Opinion to the Hon. Jim Bennett, 
Secretary of State, Ala. A.G. Op. No. 99-00227, at 3 (May 
31, 1996) <http://www.ago.state.al.us/pdfopinions/99- 
00227.pdf> (“In this circumstance, under the Roe decision, 
the state election officials cannot count unwitnessed 
absentee ballots without violating the [F]ourteenth 
[A]mendment.”). 

Having now relied on the principles of due process 
applied in Roe v. Alabama for several years, amici have a 
profound interest in seeing those principles upheld and 
consistently enforced, especially in the unique context of 

3 

the election of the President and Vice President of the 
United States, in which all States have a profound 
interest. Accordingly, amici curiae file this Brief to 
address the due-process component of the first question in 
this case. In so doing, amici argue that the judgment of 
the Supreme Court of Florida must be reversed because 
that court changed the rules governing the duties of the 
Secretary of State of Florida, as well as the rules 
governing election protests and contests in Florida, in 
violation of due process and 3 U.S.C. § 5 (1994). Amici 
urge this Court to uphold the First and Fourteenth 
Amendment guarantees of fundamentally fair election 
procedures so that States may not, after an election, 
retroactively change their canvassing, certification, and 
contest procedures to alter the outcome of an election. 

——————— ——————— 

SUMMARY OF ARGUMENT 

Because the right to vote is a fundamental right, the 
constitutionality of state election procedures rests on 
whether the procedures are fundamentally fair. 
Fundamental fairness requires election officials to refrain 
from changing the rules for counting ballots after an 
election to alter the outcome. Fundamental fairness also 
requires each State to establish — before an election — 
objective and meaningful standards for counting ballots 
and adhere to those standards after the election to protect 
the First and Fourteenth Amendment rights of both 
voters and candidates. Adherence to these guarantees of 
fundamental fairness requires special deference to the 
authority of legislatures to establish rules for counting 
votes before an election rather than allowing court to 
create retroactively rules for resolving post-election 
disputes. Because the decision of the Supreme Court of 
Florida violated these requirements of due process and 

4 

fundamental fairness in the election of the President and 
Vice President of the United States, this Court should 
reverse that decision. 

ARGUMENT 

I. MATERIAL POST-ELECTION CHANGES IN 
STATE CANVASSING PROCEDURES VIOLATE 
DUE PROCESS. 

This Court has long held that voting is “a fundamental 
political right, because preservative of all rights.” Yick 
Wo v. Hopkins, 118 U.S. 356, 370 (1886). It is well 
established that “the right of qualified voters, regardless 
of their political persuasion, to cast their votes effectively 

. . . rank[s] among our most precious freedoms. . . . Other 

rights, even the most basic, are illusory if the right to vote 
is undermined.” Williams v. Rhodes, 393 U.S. 23, 30–31 
(1968). Because the right to vote is so fundamental, “any 
alleged infringement of the right of citizens to vote must 
be carefully and meticulously scrutinized.” Reynolds v. 
Sims, 377 U.S. 533, 562 (1964). In this context, “the right 
of suffrage can be denied by a debasement or dilution of 
the weight of a citizen’s vote just as effectively as by 
wholly prohibiting the free exercise of the franchise.” Id. 
at 554. 

In 1995, the United States Court of Appeals for the 
Eleventh Circuit was called upon to apply these principles 
in Roe v. Alabama, a case involving a state circuit court’s 
order to count absentee ballots that had not been properly 
witnessed or notarized in accordance with state law. The 
Eleventh Circuit correctly observed in Roe I that “federal 
courts do not involve themselves in garden variety 
election disputes. If, however, the election process itself 
reaches the point of fundamental unfairness, a violation 
of the due process clause may be indicated and relief 

5 

under § 1983 therefore in order.” 43 F.3d at 580 (citations 
and internal quotation marks omitted) (quoting Curry v. 
Baker, 802 F.2d 1302, 1315 (11th Cir.), cert. denied, 479 
U.S. 1023 (1986), in turn quoting Welch v. McKenzie, 765 
F.2d 1311, 1317 (5th Cir. 1985), and Duncan v. Poythress, 
657 F.2d 691, 703 (5th Cir. Unit B Sept. 1981), cert. 
denied, 459 U.S. 1012 (1982)). Like the case now before 
this Court, however, Roe was no “garden variety” election 
dispute. Like this case, the post-election change in 
election procedures by the state courts raised serious 
questions about the fundamental fairness of the election 
process. Because the situation in Roe v. Alabama was so 
similar to the present case, Roe provides an excellent 
analytical framework for examining the due process 
principles at stake in this case. 

A. Roe v. Alabama 

Before the November 1994 general election, it was a 
uniform statewide practice in Alabama to disregard 
absentee ballots that had not been properly notarized or 
witnessed. Roe I, 43 F.3d at 578; Roe III, 68 F.3d at 406– 
07 (stating that the district court’s findings, which were 
“supported overwhelmingly by the evidence,” showed 
there had been no prior practice, in 66 of Alabama’s 67 
counties, of counting improperly executed absentee 
ballots). A state circuit court nonetheless ordered 
unwitnessed absentee ballots to be counted after the 1994 
general election. Because the candidates for Chief Justice 
were separated by a mere 200 to 300 votes before the 
court entered its order, the order placed the outcome of 
the race for Chief Justice in doubt. Roe I, 43 F.3d at 578. 
As the Court is no doubt aware, the 200 to 300 vote 
spread in Roe was similar to the narrow margin 
separating presidential candidates George W. Bush and 
Albert Gore, Jr., in the election in Florida. 

6 

The Alabama court’s order was challenged in a 42 
U.S.C. § 1983 (1994) action brought in the United States 
District Court for the Southern District of Alabama. The 
district court promptly granted a preliminary injunction 
halting the counting of unwitnessed absentee ballots. In 
its order, the district court specifically found that it was 
an established practice in Alabama not to count 
unwitnessed absentee ballots. Moreover, the district 
court held that adhering to the state court order and 
changing the practice of not counting unwitnessed 
absentee ballots would violate the First and Fourteenth 
Amendments. Roe I, 43 F.3d at 579. 

On appeal to the Eleventh Circuit, the Roe plaintiffs 
argued that enforcement of the state court order 

would constitute a retroactive validation of a 
potentially controlling number of votes in the 
elections for Chief Justice and Treasurer that 
would result in fundamental unfairness and would 
violate plaintiffs’ right to due process of law in 
violation of the Fourteenth Amendment, and that 
this violation of the plaintiffs’ rights to vote and 

. . . have their votes properly and honestly counted 
constitutes a violation of the First and Fourteenth 
Amendments. 

Id. at 580 (internal quotation marks omitted). The Roe 
plaintiffs further argued “that the [state] circuit court’s 
order requiring the state’s election officials to perform the 
ministerial act of counting the contested absentee ballots, 
if permitted to stand, will constitute a retroactive change 
in the election laws that will effectively ‘stuff the ballot 
box,’ implicating fundamental fairness issues.” Id. at 581 
(footnotes omitted). The Eleventh Circuit agreed with the 
Roe plaintiffs and determined that departing from 
Alabama’s longstanding policy of not counting 

7 

unwitnessed absentee ballots would indeed violate the 
First and Fourteenth Amendments. 

In deciding Roe I, the Eleventh Circuit held that 
departing from Alabama’s previous practice of not 
counting unwitnessed absentee ballots “would have two 
effects that implicate fundamental fairness.” Id. “First, 
counting ballots that were not previously counted would 
dilute the votes of those voters who met the [statutory] 
requirements . . . . Second, the change in the rules after 

the election would have the effect of disenfranchising 
those who would have voted but for the inconvenience 
imposed by the [statutory requirements].” Id. The court 
also stated that “had the candidates and citizens of 
Alabama known that something less than the signature of 
two witnesses or a notary attesting to the signature of 
absentee voters would suffice, campaign strategies would 
have taken this into account and [those] who did not vote 
would have voted absentee.” Id. at 582 (distinguishing 
Partido Nuevo Progresista v. Barreto Perez, 639 F.2d 825 
(1st Cir. 1980), cert. denied, 451 U.S. 985 (1981)). On 
these grounds — that retroactively counting improperly 
executed absentee ballots would disenfranchise or dilute 
the votes of others and that altering election rules post 
hoc would upset the legitimate expectations of the voters 
and candidates — the Eleventh Circuit ruled that 
complying with the state court’s post hoc change in 
election procedures would violate the First and 
Fourteenth Amendments. 

The Eleventh Circuit refused to require the Roe 
plaintiffs to pursue their claims in state court. Id. at 582. 
The court noted that, under Ala. Code § 17-15-6 (1995), 
Alabama courts are jurisdictionally barred from deciding 
statewide election contests. The court concluded that the 
state legislature, which has exclusive authority to decide 

8 

an election contest involving the office of Chief Justice, see 
Ala. Code § 17-15-52 (1995), was an “not an adequate or 
proper forum for the resolution of the federal 
constitutional issues presented.” Roe I, 43 F.3d at 582. 

The Court of Appeals did, however, abstain from 
finally adjudicating the plaintiffs’ claims to certify a 
question to the Alabama Supreme Court asking whether 
absentee ballots that were not properly notarized or 
witnessed could nonetheless be counted under Alabama 
law. Id. at 583. The Supreme Court of Alabama, in 
answering the certified question, affirmed the order of the 
state circuit court and held that unwitnessed absentee 
ballots in “substantial compliance” with state law should 
be counted. Roe v. Mobile County Appointment Bd., 676 
So. 2d 1206, 1221–22 (Ala. 1995). 

Within a month of the Alabama Supreme Court’s 
decision, the Eleventh Circuit remanded the case to the 
district court for trial. Roe II, 52 F.3d at 301. The 
Eleventh Circuit directed the district court specifically to 
address seventeen factual issues. Chief among these was 
the question of whether there was an established practice 
of including or excluding improperly executed absentee 
ballots in previous elections in Alabama. Id. at 302–03. 
Following Roe II, the defendant class of voters who sought 
to have their unwitnessed absentee ballots counted 
petitioned this Court for a writ of certiorari. That petition 
was denied. Davis v. Alabama, 516 U.S. 908 (1995). 

Following a three-day trial, the district court found 
that “the practice in Alabama prior to the November 8, 
1994 election had been uniformly to exclude [improperly 
executed absentee] ballots.” Roe III, 68 F.3d at 406–07. 
Accordingly, the district court concluded the Roe plaintiffs 
were entitled to relief and entered an order directing the 
Alabama Secretary of State to certify the results of the 

9 

Chief Justice and State Treasurer elections without 
counting unwitnessed absentee ballots. Id. at 407. The 
defendant class of voters that had cast improperly 
executed absentee ballots then appealed to the Eleventh 
Circuit. Id. 

In Roe III, the Eleventh Circuit concluded that the 
district court’s findings of fact were “supported 
overwhelmingly by the evidence.” Id. The appeals court 
also reaffirmed its holdings in Roe I and Roe II. Id. at 
408. The court again rejected the appellants’ plea to 
abstain and allow the state courts to decide the contested 
elections for Chief Justice and State Treasurer. The 
appellants argued, in essence, that state courts should 
have been given the opportunity to apply the Alabama 
Supreme Court’s opinion in Roe v. Mobile County 
Appointment Board and grant them relief by ordering 
their improperly executed absentee votes to be counted. 
The Eleventh Circuit, however, rejected this argument, 
again noting that it was “highly doubtful” that the state 
courts had jurisdiction to grant such relief given the 
jurisdictional bar in Ala. Code § 17-15-6. Id. The court 
determined that the Roe plaintiffs had no adequate state 
forum for the vindication of their federal constitutional 
claims and promptly affirmed the district court’s order. 
Because time was of the essence, the Court of Appeals 
directed its clerk to issue the court’s mandate instanter. 

The defendant class of voters who wanted their 
improperly executed absentee ballots counted 
immediately applied for a stay from this Court, and 
Justice Kennedy granted a temporary stay on October 14, 
1995, while this Court considered the matter. The Court 
then denied the stay application on October 19, 1995. 
Hellums v. Alabama, 516 U.S. 938 (1995). Chief Justice 

10 

Perry O. Hooper, Sr., was certified as the winner of the 
1994 election and sworn into office the next day. 

B. The Costs and Consequences of Roe v. 

Alabama 

Roe v. Alabama ended with a reaffirmation of the 
guarantees of the First and Fourteenth Amendments, as 
interpreted by this Court, that state election procedures 
must be fundamentally fair. Unfortunately, however, 
complete justice was not done because the harm caused 
by the state circuit court order could not be undone. 
Because of the state circuit court’s order, Chief Justice 
Hooper was not certified as the winner of the November 
1994 election until October 20, 1995. See Ala. Rptr., 656– 
659 So. 2d, at IX n.2. He was sworn in later the same 
day, more than nine months after he should have taken 
office on January 16, 1995. Id. n.1. As a result of the 
circuit court’s attempt to change the rules for counting 
ballots after the election, the people of Alabama were 
deprived of their choice for Chief Justice for more than 
nine months — one-eighth of his total term of office. The 
Eleventh Circuit’s decision in Roe v. Alabama could not 
give those nine months back to the people of Alabama. 

What is more, the incumbent Chief Justice, who lost 
the November 1994 election, “continued in office” during 
the nine months after his term expired until Chief Justice 
Hooper was sworn in. Id. The State then had to pay 
salaries to both men for that nine-month period. The 
litigation itself also cost the State of Alabama hundreds of 
thousands of dollars. 

The process now unfolding in Florida as a result of the 
change in state law by the Supreme Court of Florida 
portends different, but perhaps more frightening ills. The 
process now underway in Florida is undermining public 

11 

confidence in the presidency and the Republic itself as 
voters across the country watch canvassing boards stare 
at tiny pieces of cardboard to divine whether a voter’s 
“dimpled chad” means the voter wanted to vote for a 
candidate or decided not to vote at the last minute. If 
post-election changes to election procedures in Florida are 
approved by this Court, other states will be flooded with 
similar post-election litigation. Any disgruntled 
candidate who loses by a narrow margin will have an 
incentive to file a protest, argue for a new set of rules, and 
then keep counting until the votes are “found.” Such 
untoward results are avoided when federal courts uphold 
the due process requirement that the rules for counting 
ballots not be changed after the election to alter the 
outcome. 

C. Other Cases Invalidating Post Hoc Changes 
in Election Procedure 

Roe represents an extreme example of what can 
happen when election procedures are changed after an 
election. The situation in Roe was not unique, however. 
Other circuits have intervened in the name of due process 
to halt similar, fundamentally unfair post hoc changes in 
election procedures. 

In Briscoe v. Kusper, 435 F.2d 1046 (7th Cir. 1970), for 
example, the Seventh Circuit addressed a change in the 
petition requirements for candidates for alderman in the 
City of Chicago. The City Board of Election 
Commissioners applied a new “anti-duplication” rule to 
disallow voters’ signatures on more than one candidate’s 
petition to run for alderman; the Board also disallowed 
any signatures without a middle initial. Id. at 1055. The 
Seventh Circuit held that the Board’s failure to forewarn 
candidates of these new, rigorous requirements violated 
due process. Id. 

12 

In Griffin v. Burns, 570 F.2d 1065 (1st Cir. 1978), the 
First Circuit ordered a new election after state election 
officials handed out absentee ballots that were later 
voided by the state supreme court after the election. Id. 
at 1078–80. The court observed that federal courts have 
intervened in state elections where 

the attack was, broadly, upon the fairness of the 
official terms and procedures under which the 
election was conducted. The federal courts were 
not asked to count and validate ballots and enter 
into the details of the administration of the 
election. Rather they were confronted with an 
officially-sponsored election procedure which, in its 
basic aspect, was flawed. 

Id. at 1078. 

In Brown v. O’Brien, 469 F.2d 563 (D.C. Cir.), stay 
granted, 409 U.S. 1 (per curiam), vacated as moot, 409 
U.S. 816 (1972), the District of Columbia Circuit 
concluded that a political party’s retroactive application of 
a new and unannounced ban on winner-take-all 
presidential primaries violated due process. Id. at 570. 
The court noted that, if the party had announced its rule 
change prior to the primaries, candidates might have 
campaigned differently, voters might have voted 
differently, and the State of California might have altered 
its delegate selection scheme. Id. at 569–70. The court 
observed that “there can be no dispute that the very 
integrity of the process rests on the assumption that clear 
rules will be established and that, once established, they 
will be enforced fairly, consistently, and without 
discrimination so long as they remain in force.” Id. 

Finally, in Duncan v. Poythress, 657 F.2d 691 (5th Cir. 
Unit B. Sept. 1981), cert. dismissed, 459 U.S. 1012 (1982), 

13 

the former Fifth Circuit held that state officials’ refusal to 
hold a special election to fill a vacancy on the state 
supreme court in accordance with state law violated due 
process. Id. at 708. The court observed that it could 
“imagine no claim more deserving of constitutional 
protection than the allegation that state officials have 
purposely abrogated the right to vote, a right that is 
fundamental to our society and preservative of all 
individual rights.” Id. at 704. 

These cases underscore that the right to vote, at 
bottom, is a federal right. See Griffin v. Burns, 570 F.2d 
at 1077. If a state election procedure is so flawed as to be 
fundamentally unfair, that process violates due process. 
Where, as in Roe and in this case, a state supreme court 
materially changes state election procedure after an 
election has occurred and while votes are still being 
counted, that change is fundamentally unfair and violates 
the due process rights of the voters and the candidates. 

——————— ——————— 

II. THE JUDGMENT OF THE SUPREME COURT 
OF FLORIDA VIOLATES DUE PROCESS BY 
RETROACTIVELY CHANGING FLORIDA 
ELECTION PROCEDURES. 

As was the case in Roe v. Alabama, the judgment of 
the Supreme Court of Florida in this case substantially 
changed Florida election procedures after the election and 
applied those changes retroactively. A comparison of 
Florida law prior to the election and the changes imposed 
by the Supreme Court of Florida illustrates the 
unfairness of this result. By changing Florida law after 
the election, the Supreme Court of Florida violated the 
First and Fourteenth Amendment rights of the Florida 
voters and the candidates. 

14 

A. The Judgment of the Supreme Court of 

Florida Retroactively Changed Florida 
Election Procedures. 

At the close of an election in Florida, any candidate or 
voter may file a protest contending that the election 
returns are erroneous. Fla. Stat. § 102.166(1) (2000). 
During the protest period, the individual voters may not 
petition for a manual recount; only a candidate, political 
committee, or political party may request a manual 
recount at this time. Fla. Stat. § 102.166(4)(a). Under the 
original statutory scheme, the protest period ended after 
seven days, at which time the election was to be certified. 
Fla. Stat. § 102.111(1) (2000). After the results are 
certified, an election contest may be filed. Fla. Stat. 
§ 102.168(1) (2000). Any unsuccessful candidate and any 
voter or taxpayer may file an election contest. Fla. Stat. 
§ 102.112(1). Although an election contest in Florida has 
no express time constraint, in the instant case, the 
contest would have to be complete by the December 12 
deadline for selecting presidential electors. See 3 U.S.C. § 

5. Unlike an election protest, an election contest in 
Florida provides for full factual pleading of all complaints 
including misconduct on the part of election officials, 
receipt of illegal votes, and improper rejection of legal 
votes. Fla. Stat. § 102.112(3). 

By ordering the Secretary of State to accept untimely 
manual recount returns through Sunday, November 26, 
at 5:00 p.m.,1 and to include these returns in the certified 

—————— 

1 The Florida Supreme Court designated Monday, November 27, at 
9:00 a.m., as an alternative time should the Secretary of State’s office 
not be open on Sunday. Pet. App. at 38a. 

15 

election results, the court fundamentally altered the 
nature of election protest and contest procedures under 
Florida law. Pet. App. at 38a. The holding of the 
Supreme Court of Florida, that “the Secretary [of State] 
may reject a Board’s amended returns only 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 
election process,” also fundamentally altered the 
discretion granted to the Secretary of State by the Florida 
legislature. Id. at 37a. 

These material changes in Florida election law, which 
the Supreme Court of Florida applied retroactively, create 
a fundamentally unfair result. First, the requirement 
that election results be tabulated within seven days of the 
election, Fla. Stat. § 102.111, has been eviscerated. The 
court instead created a new judicial timetable for 
protesting and contesting election results: It enlarged the 
statutory protest period from seven days to 19 days and 
shortened the contest period from 29 days to 16 days. Pet. 
App. at 38a. Second, where there was no statutory 
provision for the filing of amended returns, much less late 
ones, there is now a judicial mandate that the Secretary 
of State accept such amended returns unless they are so 
late as to “preclude a candidate, elector, or taxpayer from 
contesting the certification of the election . . . or . . . by 
precluding Florida voters from participating fully in the 
federal electoral process.” Id. at 37a. Third, by 
narrowing the time frame within which a contest may be 
filed, the Florida Supreme Court restricted the ability of 
unsuccessful candidates and individual voters to 
challenge the outcome of the election in an election 
contest based on allegations of misconduct or illegality. 

16 

B. The Judgment of the Florida Supreme Court 

Gives Greater Weight to Votes In Counties 
Where a Protest Is Filed by Delaying Election 
Contests Statewide. 

By enlarging the statutory protest period from seven 
days to 19 days and shortening the contest period from 29 
days to 16 days, the Supreme Court of Florida arbitrarily 
(and retroactively) gave greater weight to votes cast in 
the counties where protests had been filed by delaying 
election contests statewide. Under the judicially enlarged 
protest period, the attendant manual recounts have the 
effect of placing the votes of the four affected counties 
under close scrutiny while at the same time denying this 
scrutiny in the remaining 63 counties where voters must 
wait for this period to end before they can request that 
their votes be manually counted as part of an election 
contest. Only a party or candidate can demand a manual 
recount in the protest period, Fla. Stat. § 102.166(4)(a), 
but any voter or tax payer can request manual recounts 
as part of an election contest to be conducted at the 
discretion of the circuit judge. See Fla. Stat. § 102.168(8). 

The votes in the four protest counties were 
painstakingly examined for 19 days, while those in the 
remainder of the state will only have the possibility of 
review for a maximum of 16 days. Thus, the holding of 
the Supreme Court of Florida has impermissibly given 
greater weight to votes in the four protest counties than 
to the votes cast in the rest of the state. “Overweighting 
and overvaluation of the votes of those living [in a 
particular area] has the certain effect of dilution and 
undervaluation of the votes of those living [elsewhere]. . . . 

Weighting the votes of citizens differently, by any method 
or means, merely because of where they happen to reside, 

17 

hardly seems justifiable.” Reynolds v. Sims, 377 U.S. at 
563. The judgment of the Supreme Court of Florida 
favored the counties where protests were filed and diluted 
the votes from the remainder of Florida in violation of the 
Due Process Clause of the Fourteenth Amendment. 

C. By Changing the Statutory Protest and 

Contest Periods, the Florida Supreme Court 
Gave an Unfair Advantage to a Campaign 
That Chose to “Front-Load” Its Challenges 
Into the Protest Period. 

Under Florida law as it existed at the time of the 
election, a candidate could reasonably forego requesting a 
manual recount as part of an election protest because the 
protest period was so short. The candidate could 
reasonably choose to save his request for a manual 
recount until an election contest, where there would be 
more time. This was particularly true where the contest 
period was originally over four times longer than the 
protest period and, in addition to the manual recount, 
afforded the candidate the opportunity to create a full 
evidentiary record of all alleged election improprieties or 
illegality. Fla. Stat. § 102.112(3). As is evident from the 
events of the past few weeks, a manual recount can be an 
arduous and time-consuming process taking longer than a 
week — especially in large counties. A candidate who 
desired such recounts would likely know this and could 
reasonably decide to wait and request the manual 
recounts as part of an election contest where there would 
be more time. 

By enlarging the statutory protest period from seven 
days to 19 days and shortening the contest period from 29 
days to 16 days, the Florida Supreme Court thwarted the 
reasonable expectations of the candidates and gave a 
fundamentally unfair advantage to a campaign that chose 

18 

to “front-load” its challenges into the protest period. This 
post-election change benefited the “front-loading” 
campaign by giving it the majority of the available time 
for its challenges while reducing the time available to the 
other campaign to respond in a contest. Had the 
candidates known that the protest period would have 
been lengthened, campaign strategies would have taken 
this into account. See Roe I, 43 F.3d at 582; Brown v. 
O’Brien, 469 F.3d at 569–70. By retroactively changing 
the election rules, however, the Supreme Court of Florida 
deprived the candidates of this opportunity. 

D. Counting Improperly Marked Ballots That 

Were Not Counted in the Past Dilutes The 
Votes of Those Who Properly Marked Their 
Ballots. 

“A citizen’s right to a vote free of arbitrary 
impairment by state action has been judicially recognized 
as a right secured by the Constitution . . . .” 

Baker v. 
Carr, 369 U.S. 186, 208 (1962). During this election, the 
overwhelming majority of Floridians who cast their votes 
using punch-card ballots did so in accordance with the 
instructions for properly casting ballots, and those votes 
were accurately tabulated in keeping with the principles 
of due process. As noted by the Secretary of State: 

In the weeks before the November 7, 2000, 
general election, each registered voter in Florida 
was provided with a sample ballot and detailed 
instructions on how to vote according to the 
method used in his or her precinct. Additionally, a 
copy of the instructions was placed prominently in 
each voting booth. See Fla. Stat. § 101.46. In 
those districts using punch cards, the instructions 
explained how a voter was to select and punch out 

19 

the appropriate chad on the ballot. App. at 14a. 
The instructions included this specific direction: 

AFTER VOTING, CHECK YOUR 
BALLOT CARD TO BE SURE YOUR 
VOTING SELECTIONS ARE CLEARLY 
AND CLEANLY PUNCHED AND 
THERE ARE NO CHIPS LEFT 
HANGING ON THE BACK OF THE 
CARD. 

Id. When voters followed the instructions, 
including the removal of any loose chips left 
attached to their ballots, the automatic tabulation 
accurately tabulated the ballots. There is no 
contention otherwise. Only the ballots of those 
voters who, by their own actions, failed to clearly 
indicate their elective choices, as directed, would 
be affected by the manual recount at issue. 

Harris Resp. to Pet. for Cert. at 15 n.12. Thus, the 
requirements for casting a correct vote were well 
established, had been made available to every voter prior 
to election day, and were followed by the overwhelming 
majority of voters. 

Changing the rules for counting partially punched 
ballots in the protest counties after the election would be 
fundamentally unfair. Allowing certain counties to count 
so-called “dimpled chads” and stray marks as votes 
constitutes an arbitrary deviation from election rules and 
dilutes the weight given to votes that were properly 
punched and counted. A post-election change in manual 
recount procedures in one county in Florida similarly 
dilutes the votes of those who submitted partially 
punched ballots in counties that did not conduct manual 
recounts. 

20 

Changing the rules for counting partially punched 
ballots only in the protest counties also dilutes the votes 
of those whose partially punched ballots are left 
uncounted in their county’s manual recount because their 
county adheres to its pre-election rules. By ordering the 
Secretary of State to accept arbitrary, untimely recounts 
and include them in the certified election results, the 
Florida Supreme Court sanctioned fundamentally unfair 
practices and violated due process. 

E. By Changing the Statutory Protest and 

Contest Periods, the Florida Supreme Court 
Deprived Voters of the Right to Prosecute an 
Effective Election Contest. 

Under Florida law, a voter may file an election contest 
— but only after the election has been certified at the end 
of the protest period. Fla. Stat. § 102.112(1). By 
extending the protest period at the expense of the contest 
period, the Florida Supreme Court has frustrated 
individual voters’ due process rights to an effective 
election contest by leaving an inadequate length of time 
for such a challenge. 

The contest period was originally over four times 
longer than the protest period and, in addition to the 
manual recount, afforded the complaining voter or 
candidate an opportunity to create a full evidentiary 
record of all alleged election improprieties or illegality. 
Fla. Stat. § 102.112(3). As is evident from the events of 
the past few weeks, a manual recount is an arduous and 
time-consuming process. Under the original election 
rules, voters who contested the election would have had 
29 days in which to challenge the election and request a 
manual recount. Under the holding of the Florida 
Supreme Court, the voters are afforded a mere 16 days, 

21 

three days less than the new protest period, and 13 days 
less than they were entitled to have under Florida law. 

Not only has this new judicial timetable prejudiced 
the rights of voters by greatly restricting the time in 
which they can pursue a contest, it has also prejudiced 
any such contest by means of the delay. During the court- 
ordered delay for election protests, ballots in the protest 
counties have been repeatedly handled, compromising the 
physical integrity of the individual ballots. Pet. for Cert. 
at 5. Thus, evidence material to a contest has been 
damaged and lost. The Florida Supreme Court’s new 
timetable has, therefore, so prejudiced the voters’ due 
process rights to an effective contest as to constitute a 
fundamentally unfair result. 

F. Counting Partially Punched Ballots Without 

Clear Standards Attributes Political Speech 
to Voters Without Their Consent and Dilutes 
Proper Votes by “Stuffing the Ballot Box.” 

In Baker v. Carr, this Court noted that “[a] citizen’s 
right to a vote free of arbitrary impairment by state 
action has been judicially recognized as a right secured by 
the Constitution, when such impairment resulted from 
dilution by . . . a stuffing of the ballot box.” 369 U.S. at 
208 (citing Ex parte Siebold, 100 U.S. 371 (1879), and 
United States v. Saylor, 322 U.S. 385 (1944)). Depending 
on the location, election officials in Florida are currently 
divining the will of individual voters based on either a 
discretionary majority vote of local officials or the 
individual subjective views of the persons handling the 
ballots. By requiring the Secretary of State to accept the 
untimely manual recounts and include them in the 
certified election results, the Florida Supreme Court 
ordered the acceptance of this standardless procedure and 
“stuffed the ballot box” in violation of voters’ First 

22 

Amendment right to freedom of expression and 
Fourteenth Amendment right to due process. 

It is well established that “the right of qualified 
voters, regardless of their political persuasion, to cast 
their votes effectively . . . rank[s] among our most 
precious freedoms. . . . Other rights, even the most basic, 

are illusory if the right to vote is undermined.” Williams 

v. Rhodes, 393 U.S. 23, 30–31 (1968). The First 
Amendment protects the right of our nation’s citizens not 
only to entertain their individual political beliefs, but also 
to express them. Id. at 30; see also Wooley v. Maynard, 
430 U.S. 705, 714 (1977) (“The right to speak and the 
right to refrain from speaking are complementary 
components of the broader concept of individual freedom 
of mind.”) When a citizen casts a vote, it is the ultimate 
expression of individual political speech and constitutes 
the culmination of the individual right to choose the 
representative governing body. 

Where there is no clear standard by which to evaluate 
inadequately marked ballots, election officials, left to 
their individual discretion, will inevitably place political 
speech in the mouths of those voters unwilling to vote for 
either candidate. For example, voters may enter the 
voting booth and have second thoughts about their 
decisions and change their minds mid-vote, leaving a 
“dimpled chad.” If election officials count those 
indentations as votes, they are “stuffing the ballot box” by 
putting words into the voters’ mouths.2 The government 
cannot compel voters to speak when they have chosen to 

—————— 

2 See, e.g., United States v. Saylor, 322 U.S. at 388 (holding that 
electors have the right to have their vote honestly counted and not 
diluted by stuffing the ballot box). 

23 

remain silent. West Virginia v. Barnette, 319 U.S. 624, 
631–41 (1943). 

Under the Due Process Clause of the Fourteenth 
Amendment, voters have the right to have their 
individual ballots correctly counted and reported. Gray v. 
Sanders, 372 U.S. 368, 380 (1963). In this race, numerous 
ballots were correctly punched for the bulk of the races, 
leaving the choice for President and Vice President 
unselected. This indicates that, had these voters wanted 
to vote for any given presidential candidate, they not only 
knew how to do so,3 they had demonstrated their ability 
to do so. There was no option on these ballots for “NONE 

OF THE ABOVE.” By correctly selecting candidates in other 
races and leaving only a “dimpled chad” or entirely 
unmarked portion for the presidential race, these voters 
exercised their right to refrain from speaking under the 
First Amendment. See Wooley, 430 U.S. at 714. Election 
officials should not be allowed to speak where voters have 
remained silent; for, with that silence, these citizens have 
voiced their views on the presidential race. See Barnette, 
319 U.S. at 641 (“We set up government by consent of the 
governed, and the Bill of Rights denies those in power any 
legal opportunity to coerce that consent. Authority here is 
to be controlled by public opinion, not public opinion by 
authority.”) 

In the absence of a clear standard, the divination of 
these improperly marked ballots ultimately says more 
about the intent of the election officials than the intent of 
the voters. To affirm this arbitrary conduct, this Court 
would be “required to say that a Bill of Rights which 
guards the individual’s right to speak his own mind, left it 
—————— 

3 As previously noted, each voter was informed of the correct 
means of casting a ballot prior to the election. 

24 

open to public authorities to compel him to utter what is 
not in his mind.” Id. at 634. By impermissibly 
attributing this political speech to citizens who elected not 
to vote in a particular race, election officials effectively 
“stuff the ballot box” and dilute the weight of the votes of 
those citizens who actually voted in this race. Cf. Ex parte 
Siebold, 100 U.S. 371; United States v. Saylor, 322 U.S. 
385. 

This action has violated the due process rights of those 
citizens who elected not to vote in this race and expected 
that their silence would be interpreted as it was intended 
— as a vote for “NONE OF THE ABOVE.” See Baker v. Carr, 
369 U.S. at 208; United States v. Saylor, 322 U.S. at 388 
(“This case affirms that the elector’s right intended to be 
protected is not only that to cast his ballot but that to 
have it honestly counted.”); Gray v. Sanders, 372 U.S. at 
380 (“The [United States Supreme] Court has consistently 
recognized that all qualified voters have a constitutionally 
protected right ‘to cast their ballots and have them . . . 
correctly counted and reported.’ ”)(citations omitted). 
Voters who had second thoughts and left only a “dimpled 
chad” could reasonably expect, after reading the voting 
instructions, that their “dimpled chad” would not be 
counted. Thus, by ordering the Secretary of State to 
accept the untimely manual recounts and include them in 
the certified election results, the Florida Supreme Court 
violated the due process rights of both the voters who 
clearly selected a presidential candidate and the voters 
who chose to abstain from casting a vote in the 
presidential election. 

——————— ——————— 

25 

III.BOTH ROE V. ALABAMA AND THIS CASE 
ILLUSTRATE THE IMPERATIVE OF 
LEGISLATIVE, NOT JUDICIAL, SUPREMACY 
IN ESTABLISHING ELECTION RULES TO 
ENSURE FUNDAMENTAL FAIRNESS. 

Another similarity between the Roe litigation and the 
decision of the Florida Supreme Court is the special need 
for deferring to the exclusive, constitutional authority of 
legislative bodies to establish rules for voting before an 
election rather than allowing courts to create rules for 
voting to apply retroactively in post-election disputes. In 
both the Roe litigation and this case, the state courts 
failed to defer to the supremacy of the legislatures with 
disastrous results. In each case, the legislature also had 
sought to prevent the judicial chicanery that later 
occurred. Federal relief then became necessary to fulfill 
the guarantees of the First and Fourteenth Amendments 
that state courts not change legislative rules retroactively 
to alter the outcome of an election. 

In the Roe litigation, the State’s pre-election rules 
plainly prohibited post-election intervention by the 
Alabama courts. Indeed, the Alabama Legislature had 
prohibited judicial intervention in elections in the 
following extraordinary terms: 

No jurisdiction exists in or shall be exercised by 
any judge, court or officer exercising chancery 
powers to entertain any proceeding for 
ascertaining the legality, conduct or results of any 
election, except so far as authority to do so shall be 
specially and specifically enumerated and set down 
by statute; and any injunction, process or order 
from any judge, court or officer in the exercise of 

26 

chancery powers, whereby the results of any 
election are sought to be inquired into, questioned 
or affected, or whereby any certificate of election is 
sought to be inquired into or questioned, save as 
may be specially and specifically enumerated and 
set down by statute, shall be null and void and 
shall not be enforced by any officer or obeyed by 
any person; and should any judge or other officer 
hereafter undertake to fine or in any wise deal 
with any person for disobeying any such prohibited 
injunction, process or order, such attempt shall be 
null and void, and an appeal shall lie forthwith 
therefrom to the supreme court then sitting, or 
next to sit, without bond, and such proceeding 
shall be suspended by force of such appeal; and the 
notice to be given of such appeal shall be 14 days. 

Ala. Code § 17-15-6 (1995) (discussed in Roe I, 43 F.3d at 
577–78 & n.4; Roe III, 68 F.3d at 408–09 & n.7). In the 
Roe context of the election of the Chief Justice, Alabama 
law also provided that only the state legislature could 
hear and decide an election contest. Ala. Code §§ 17-15- 
50 to 17-15-63 (1995) (discussed in Roe I, 43 F.3d at 577). 

The Eleventh Circuit found these provisions 
“especially significant in light of the common law of 
Alabama.” Id. at 578 n.4. The Roe court recognized that 
Alabama law required strict adherence to legislative rules 
in an election contest: 

[E]lection contests exist only by virtue of statutory 
enactment and such statutes are to be strictly 
construed. [Groom v. Taylor, 235 Ala. 247, 178 So. 
33 (1938)]. “The right to contest an election is not 
a common-law right (Cosby v. Moore, 259 Ala. 41, 
65 So.2d 178 [(1953)]). Elections belong to the 
political branch of the government, and, in the 

27 

absence of special constitutional or statutory 
provisions, are beyond the control of judicial 
power.” 29 C.J.S. Elections § 246. Further at § 
247 the rule is stated that statutes providing for 
election contests “should be strictly construed or 
observed as to those provisions for inaugurating 
the contest and which are necessary to jurisdiction 
[citing Walker v. Junior, 247 Ala. 342, 24 So. 2d 
431 (1945); Groom, 235 Ala. 247, 178 So. 33] . . . . 

An election contest being purely statutory, the 
courts are limited in their investigation to such 
subjects as are specified in the statutes. The 
remedy is not to be extended to include cases not 
within the language of the statute; and the right of 
contest is not to be inferred from doubtful 
provisions.” 

Roe I, 43 F.3d at 578 n.4 (quoting Longshore v. City of 
Homewood, 277 Ala. 444, 446, 171 So. 2d 453, 455 (1965)). 

Similarly, this case presents important issues of 
legislative supremacy in election matters that call into 
question the fundamental fairness of the decision of the 
Florida Supreme Court. The ultimate source of that 
legislative supremacy, of course, is the Constitution, 
which provides “Each State shall appoint, in such manner 
as the Legislature thereof may direct, a Number of 
Electors . . . .” U.S. Const. art. II, § 1 (emphasis added). 

The Constitution does not refer this matter to the entire 
State government but to the State Legislature alone. 
Likewise, the National Legislature required, more than a 
century ago, that any post-election controversy regarding 
the appointment of presidential electors be resolved “by 
laws enacted prior to the day fixed for the appointment of 
the electors.” 3 U.S.C. § 5. Representative William Craig 
Cooper of Ohio explained, in the congressional debate on 

28 

this law, that Congress should prevent state judicial 
mischief in the appointment of presidential electors: 
“How could any court, how could any tribunal 
intelligently solve the claims of parties under a law which 
is made concurrent, to the very moment perhaps, with the 
trouble which they are to settle under the law?” 18 Cong. 
Rec. 47 (Dec. 8, 1886). 

Congress also provided that in 
the event of any failure to appoint electors “on the day 
prescribed by law, the electors may be appointed on a 
subsequent day in such a manner as the legislature of 
such state may direct.” 3 U.S.C. § 2 (1994) (emphasis 
added). 

Both the Framers and Congress contemplated that the 
appointment of presidential electors was to be the 
exclusive province of state legislatures. “Without the 
intervention of the State legislatures, the President of the 
United States cannot be elected at all. They must in all 
cases have a great share in his appointment, and will 
perhaps, in most cases, of themselves determine it.” The 
Federalist No. 45, at 291 (James Madison) (Clinton 
Rossiter ed., 1961). As in Roe, the judicial usurpation of 
this state legislative authority by the Supreme Court of 
Florida violated the Constitution, and its fundamental 
unfairness must be redressed by the federal judiciary. 

——————— ——————— 

CONCLUSION 

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

Respectfully submitted, 

BILL PRYOR 

Attorney General of Alabama 
Counsel of Record 

29 

MARGARET L. FLEMING 
CHARLES B. CAMPBELL 
SCOTT L. ROUSE 
A. VERNON BARNETT IV 
RICHARD E. TREWHELLA, JR. 

Assistant Attorneys General 

OFFICE OF THE ATTORNEY GENERAL 
State of Alabama 
11 South Union Street 
Montgomery, Alabama 36130-0152 
(334) 242-7300