TABLE OF CONTENTS* 

Page 

TABLE OF AUTHORITIES ..................... iii 

STATEMENT OF INTEREST OF AMICI ........... 1 

SUMMARY OF ARGUMENT .................... 1 

ARGUMENT.................................. 1 

I. THIS COURT HAS JURISDICTION TO VINDICATE 
PETITIONER’S AND AMICI’S FEDERAL RIGHTS 
TO HAVE FLORIDA’S ELECTORS APPOINTED 
PURSUANT TO THE RULES ESTABLISHED BY 
THE FLORIDA LEGISLATURE ................ 3 

II. THE COURT BELOW DEPRIVED PETITIONER 
AND AMICI OF THEIR FEDERAL RIGHT TO 
HAVE FLORIDA’S ELECTORS APPOINTED 
ACCORDING TO THE RULES AND DEADLINES 
ESTABLISHED BY FLORIDA’S LEGISLATURE . . 9 
A. The Constitutional Text, History, and 
Subsequent Judicial Decisions All Give the 
Florida Legislature, not the Florida Courts, 
Authority over the Appointment of Electors ..... 9 

B. The Decision Below Violated Article II, Section 
1, Clause 2 By Usurping the Florida Legislature’s 
Authority................................ 18 

III. SECTION FIVE OF TITLE THREE PREVENTS 
THE FLORIDA SUPREME COURT FROM 
REWRITING THE LAWS GOVERNING THE 
APPOINTMENT OF ELECTORS AFTER 
ELECTION DAY ......................... 23 

* This brief is filed with the consent of the parties. Counsel 
for the parties have filed blanket letters of consent with the 
Office of the Clerk. 

(i) 

TABLE OF CONTENTS–cont’d 

Page 

A. The Florida Supreme Court Impermissibly 

Rewrote the Law Governing the Appointment 
of Electors After Election Day .............. 24 

B. In Light of Art. II, § 1, cl. 2 and 3 U.S.C. § 5, It 

Makes No Sense to Allow the Florida Supreme 
Court To Rewrite the Law Governing the 
Appointment of Electors After Election Day ..... 28 

CONCLUSION ............................... 30 

ADDENDUM ................................. 1a 

(ii) 

TABLE OF AUTHORITIES 

Page(s) 

Cases 
Burdick v. Takushi, 504 U.S. 428 (1992) ............ 25 

Burroughs v. United States, 290 U.S. 534 (1934) ..... 4, 6 

Case of Electoral College, 8 F. Cas. 427 
(C.C.D.S.C. 1876) ................... 8, 16, 17, 23 

Crescent City Live-Stock Landing & Slaughter-House v. 
Butchers’ Union Slaughter House & Live-Stock 
Landing Co., 120 U.S. 141 (1887) ................ 6 

Diamond Nat’l Corp. v. State Bd. of Equalization, 
425 U.S. 268 (1976) ........................... 7 

Dupasseur v. Rochereau, 88 U.S. 130 (1874) 

......... 6 
Ex parte Yarbrough, 110 U.S. 651 (1884) .......... 4, 6 

Hancock Nat’l Bank v. Farnum, 
176 U.S. 640 (1900) ........................... 6 

Hawke v. Smith, 253 U.S. 221 (1920) ........ 3, 5, 13, 14 

In re Opinions of Justices, 45 N.H. 595, 
1864 WL 1585 (N.H. July 19, 1864) .......... 15, 16 

In re Opinion of the Justices, 
113 A. 293 (N.H. 1921) 
...................... 16 

McPherson v. Blacker, 146 U.S. 1 (1892) ...... 8, 10-13 

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

.................. 6 
Roe v. Alabama, 43 F.3d 574 (11 

th Cir. 1995) ........ 25 

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

.......................................... 15 

Storer v. Brown, 415 U.S. 724 (1974) 

.............. 25 
U.S. Term Limits, Inc. v. Thornton, 
514 U.S. 779 (1995) ........................... 9 

West Side Belt R.R. Co. v. Pittsburgh Constr. Co., 
219 U.S. 92 (1911) .......................... 6, 7 

Williams v. Rhodes, 393 U.S. 23 (1968) ........ 8, 12, 18 

WMCA, Inc. v. Lomenzo, 377 U.S. 633 (1964) ........ 18 

(iii) 

TABLE OF AUTHORITIES–cont’d 

Page(s) 

Constitution and Statutes 

U.S. Const.: 

Art. II, § 1, cl. 2 ......................... passim 

Art. V .................................... 13 

3 U.S.C. § 1 .................................. 25 

3 U.S.C. § 2 .................................. 23 

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

3 U.S.C. § 7 ............................ 23, 24, 27 

28 U.S.C. § 1257 

....................... 1, 3, 4, 6, 8 
Fla. Stat. § 102.111 .......................... 19-22 

Fla. Stat. § 102.112 .......................... 19-21 

Fla. Stat. § 103.111 ............................. 25 

Fla. Stat. § 102.166 ............................. 27 

Fla. Stat. § 102.168 ............................. 27 

Other Materials 

1 Dec. 1803, Annals 13:129 (reprinted in 5 Founders’ 

Const. 453) ................................. 26 

10 Annals of Cong. 131-146 (1800) ................ 16 

Josephson, W., & Ross, B., Repairing the Electoral 

College, 22 J. Legis. 145, 185 (1996) 

............ 17 

Madison, July 25, 1787 (reprinted in 5 Elliot’s Debates on 
the Federal Constitution at 563) ................. 11 

S. Rep. No. 395, 43d Cong., 1 

st Sess. (1874) ......... 13 

Story, J., Commentaries on the Constitution § 1466 (1833) 

.......................................... 11 

(iv) 

STATEMENT OF INTEREST OF AMICI 

The Amici, who are identified by name in the Addendum to 
this Brief, are registered Florida voters who did, in fact, cast 
their ballots in the November 7, 2000, presidential election. By 
operation of the United States Constitution and Florida statutes, 
Amici were entitled to participate in that election and have 
Florida’s electors appointed in the manner directed by the 
Florida legislature before the election, by which means the 
Florida legislature has provided for the appointment of its 
presidential electors. The right of these voters to participate in 
that electoral process was compromised by the intervening 
Florida Supreme Court’s decision. That decision changed the 
statutory procedures for the election after the election day and 
before the results were certified, i.e., in the midst of the election 
process.1 

SUMMARY OF ARGUMENT 

The Constitution expressly delegates to state legislatures 
the authority to determine the manner for the appointment of 
electors. See Art. II, § 1, cl. 2. The Florida Legislature 
provided a detailed statutory mechanism for the appointment 
of electors only to have its statutes rewritten after the fact by 
the Florida Supreme Court in the decision below. That 
decision deprives Petitioner and Amici of their federal rights 
to have Florida appoint its electors in the manner directed by 
the Florida Legislature before Amici cast their votes. See Art. 
II, § 1, cl. 2; 3 U.S.C. § 5. This Court has jurisdiction to 
review the Florida Supreme Court’s denial of federal rights 
specifically claimed by Petitioner. See 28 U.S.C. § 1257. 

The text and history of Art. II, § 1, cl. 2, as well as 

1 No counsel representing a party in this case authored this brief in whole 
or in part, and no person or entity, other than amici curiae and their counsel, 
made a monetary contribution to the preparation and submission of this 
brief. 

2 

subsequent judicial decisions, all make clear that state 
legislatures enjoy virtually plenary and exclusive authority 
over the appointment of electors. As a result, state-court 
decisions that ignore or override statutory provisions 
governing the appointment of electors raise issues of 
constitutional magnitude. Such decisions cannot stand as the 
final word in light of the Constitution’s express direction that 
state legislatures, not state courts, have the preeminent 
authority to appoint electors. However, the decision below 
features precisely the kind of judicial overreaching that Article 
II forbids. The decision below reverses the import of key 
statutory terms and rewrites statutory deadlines. 

To makes matters worse, the Florida Supreme Court 
applied this new legislation retroactively in contravention of 
3 U.S.C. § 5. Article II grants state legislatures the 
preeminent role in the appointment of electors, and 3 U.S.C. 
§ 5 imposes a limitation on retroactive lawmaking. The 
Florida Supreme Court’s judicial lawmaking violated both 
these provisions simultaneously. This Court should vindicate 
Petitioner’s and Amici’s rights under Art. II, § 1, cl. 2 and 3 
U.S.C. § 5. 

ARGUMENT 

The Florida Legislature enacted, pursuant to Art. II, § 1, cl. 
2, a thorough and straightforward legislative scheme 
governing the appointment of electors. The Florida Supreme 
Court did not merely interpret this statutory scheme, it wrote 
it anew. The Florida Supreme Court set forth its own 
legislation, disregarding the judgments of the Florida 
Legislature and substituting its own. 

If this statutory scheme that addressed a matter of only 
local concern, such judicial lawmaking could not justify this 

3 

Court’s intervention. But this case involves a matter of 
surpassing national importance. Art. II, § 1, cl. 2 prevents this 
judicial arrogation and reserves the manner of selecting 
electors to the legislatures of the several states. As this Court 
has explained in Hawke v. Smith, 253 U.S. 221, 227 (1920), 
“that was not a term of uncertain meaning when incorporated 
into the constitution. What it meant when adopted it still 
means for the purposes of interpretation. A legislature was 
then the representative body which made the laws of the 
people.” 

The Florida Supreme Court is not a “representative body.” 
For this reason, the framers rejected any direct role for the 
state judiciaries in the appointment of electors. See infra. 
Here, however, the Florida Supreme Court enacted new 
“legislation” out of thin air. It adopted new deadlines guided 
not by the popular will, but by nothing more than its 
“equitable” discretion. 

In the end, this post hoc judicial lawmaking solved 
nothing, but instead lengthened the window for political 
instability and unrest. This Court should vindicate the 
wisdom of the Framers and reaffirm the preeminent authority 
of the Florida Legislature. 

I. THIS COURT HAS JURISDICTION TO VINDICATE 
PETITIONER’S AND AMICI’S FEDERAL RIGHTS 
TO HAVE FLORIDA’S ELECTORS APPOINTED 
PURSUANT TO THE RULES ESTABLISHED BY 
THE FLORIDA LEGISLATURE 
This Court clearly possesses jurisdiction over this case 
because the Florida Supreme Court rejected a “right, 
privilege, or immunity . . . claimed under the Constitution . . . 
or statutes of . . . the United States.” 28 U.S.C. § 1257. 

4 

Petitioner argued below that the Florida Supreme Court could 
not reject the rules and deadlines imposed by the Florida 
Legislature and substitute its own deadlines without violating, 
inter alia, Art. II, § 1, cl. 2, and 3 U.S.C. § 5. The Florida 
Supreme Court implicitly rejected those arguments and 
infringed on Petitioner’s federal rights. 

The Florida Supreme Court likewise denied Amici’s rights 
under Art. II, § 1, cl. 2, and 3 U.S.C. § 5 to have the electors 
from their State appointed “in such Manner as the Legislature 
thereof may direct.” Art. II, § 1, cl. 2. As explained infra, 
Art. II, § 1, cl. 2, grants both Petitioner and Amici a federal 
constitutional right to have Florida electors in the electoral 
college appointed in accordance with the laws enacted by the 
Florida Legislature. By misinterpreting the relevant Florida 
statutes, ignoring deadlines clearly imposed by the Florida 
Legislature, and creating new deadlines out of whole cloth, 
the decision below deprives Petitioner and Amici of federal 
rights. 28 U.S.C. § 1257 vests this Court with jurisdiction to 
correct that denial of federally-protected rights. 

It is no answer for Respondent to insist that the 
Constitution leaves election matters to the States. This Court 
repeatedly has emphasized that all federal elections, especially 
presidential elections, implicate important federal interests. 
See, e.g., Burroughs v. United States, 290 U.S. 534, 547 
(1934) (acknowledging the “clear” federal interest in 
“protect[ing] the election of [the] President and Vice President 
from corruption”); Ex parte Yarbrough, 110 U.S. 651, 666, 
662 (1884) (noting the federal government’s “essential” 
interest in ensuring “that the votes by which its members of 
congress and its president are elected shall be the free votes of 
the electors, and the officers thus chosen the free and 

5 

uncorrupted choice of those who have the right to take part in 
that choice”). 

The more fundamental problem with Respondents’ 
suggestion is that Art. II, § 1, cl. 2, grants authority over the 
appointment of electors not to the State as an undifferentiated 
sovereign, but specifically to “the Legislature thereof.”2 
Indeed, the gist of Petitioner’s complaint is that the decision 
below deprived Petitioner of his federal right to have electors 
appointed as directed by the Florida Legislature, as opposed 
to the Florida Supreme Court. 

Under these circumstances, it makes no sense to suggest 
that this Court lacks jurisdiction because the Constitution 
leaves the matter to the States. Art. II, § 1, cl. 2, not only 
specifies that state legislatures shall adopt the rules for the 
appointment of electors, but further disqualifies any “Senator 
or Representative, or person holding an office of trust or profit 
under the United States” from service as an elector. It seems 
clear that this Court would have jurisdiction to review a state 
court decision authorizing a Senator to serve as an elector. 
The Court possesses the identical jurisdiction to review the 
Florida Supreme Court’s decision authorizing a mechanism 
and schedule for the appointment of electors at variance from 

2 Respondents suggest that this Court does not impose separation of powers 
requirements on the States and generally allows the States to allocate power 
internally as they see fit. See Opp. Cert. at 18 n.5. This observation may 
hold true in the many instances where the Constitution makes general 
reference to the States. However, the Court has rejected this principle in the 
relatively few instances in which the Constitution imposes rights and 
obligations on specific institutions of state government, such as state 
legislatures. See Hawke v. Smith, supra (rejecting Ohio’s efforts to transfer 
the constitutional role of the state legislature in the amendment ratification 
process to the people in a referendum). 

6 

that specified by the Florida Legislature. 

As developed infra, Petitioner and Amici possess a federal 
right to have Florida’s electors appointed pursuant to the 
process established by the Florida Legislature. Although 
federal electors and voters in federal elections are not federal 
officers, they do perform a federal function. See, e.g., Ray v. 
Blair, 343 U.S. 214, 224 (1952); Burroughs, 290 U.S. at 545; 
Yarbrough, 110 U.S. at 662. If state laws allegedly interfere 
with the right to perform that federal function as permitted 
under federal law, this Court has jurisdiction to vindicate the 
federal right. In Ray, for example, a potential presidential 
elector asserted a federal right not to be bound by a state law 
requirement that electors pledge to support the candidate 
nominated by the party’s national convention. Although the 
Court ultimately rejected the asserted federal right, it asserted 
jurisdiction “based on this federal right specifically claimed 
by respondent.” Ray, 343 U.S. at 216 (citing 28 U.S.C. § 
1257(3)). Here, Petitioner and Amici claim the federal right 
to have the Florida electors appointed according to the process 
established by the Legislature. That claimed federal right 
vests this Court with jurisdiction. 

Respondents suggest that this Court lacks jurisdiction to 
review what is essentially an issue of state law. However, in 
a variety of contexts, this Court will wade into state-law 
disputes when necessary to vindicate federal rights. For 
example, on numerous occasions, this Court has intervened to 
vindicate a litigant’s federal right to have state courts give a 
prior state or federal-court judgment full faith and credit. See, 

e.g., West Side Belt R.R. Co. v. Pittsburgh Constr. Co., 219 
U.S. 92, 99 (1911); Hancock Nat’l Bank v. Farnum, 176 U.S. 
640, 641 (1900) (noting that for the Court to have jurisdiction 

7 

there must be “some alleged denial of a right or immunity 
secured by [the] Constitution”); Crescent City Live-Stock 
Landing & Slaughter-House v. Butchers’ Union Slaughter 
House & Live-Stock Landing Co., 120 U.S. 141, 146 (1887); 
Dupasseur v. Rochereau, 88 U.S. 130, 134-35 (1874). In 
such cases, this Court reviews the asserted deprivation of a 
federal right, even though it generally requires the Court to 
undertake an extensive analysis of the state law of judgments. 
In West Side Belt Railroad, for example, this Court affirmed 
its jurisdiction to determine whether the Pennsylvania state 
courts had given a prior federal-court judgment full faith and 
credit even though the Court acknowledged “that the effect of 
the [Pennsylvania Legislature’s] act of May 23 constitutes 
‘the real and only issue in the case.’” 219 U.S. at 102 
(citation omitted). The Court’s observation applies to this 
case: “When a party asserts that due faith and credit have not 
been given to [there, a judgment; here, the procedures 
specified by the Florida Legislature], he asserts a right under 
the Constitution of the United States, and necessarily this 
raises a Federal question.” Id. at 99. 

This Court also exercises jurisdiction to ensure that a state- 
law interpretation of a state tax provision does not deny a 
federal entity’s immunity from state taxation. In Diamond 
Nat’l Corp. v. State Bd. of Equalization, 425 U.S. 268 (1976) 
(per curiam), this Court held a national bank immune from 
state and local sales taxes, despite the state supreme court’s 
state-law determination that the incidence of the tax fell on a 
non-federal party. As the dissent acknowledged, “[s]ince the 
case involves a federal claim of immunity from state taxation, 
we are not bound by the California court’s determination.” Id. 
at 269 (Stevens, J., dissenting). 

8 

This Court has not hesitated to intervene when States set 
the rules for federal elections in a manner that allegedly 
violated federal law.3 See, e.g., Williams v. Rhodes, 393 U.S. 
23, 28 (1968) (noting that suggestion that dispute over Ohio’s 
limitations on access to the presidential ballot was non- 
justiciable “requires very little discussion” because it “has 
been rejected in cases of this kind numerous times”); 
McPherson v. Blacker, 146 U.S. 1, 23-24 (1892) (rejecting the 
argument that dispute concerning Michigan’s procedure for 
appointing electors was a non-justiciable political question). 
In Williams, for example, the Court emphasized that although 
the States enjoyed “extensive power . . . to pass laws 
regulating the selection of electors,” such “powers are always 
subject to the limitation that they may not be exercised in a 
way that violates other specific provisions of the 
Constitution.” 393 U.S. at 29. 

In short, there is nothing objectionable or anomalous about 
this Court reviewing a state-law determination to ensure that 
the court below did not interpret state law in a manner that 
infringed on rights, privileges, or immunities claimed under 
the Constitution or statutes of the United States. 28 U.S.C. § 
1257 clearly grants this Court jurisdiction over such cases, 
and this Court has exercised that jurisdiction in cases raising 
issues of far less importance to the federal government and 
federal Constitution. 

3 Indeed, at least one court has gone so far as to treat laws enacted by state 
legislatures pursuant to their authority under Art. II, § 1, cl. 2, as federal 
laws. See Case of Electoral College, 8 F. Cas. 427, 432-34 (C.C.D.S.C. 
1876) (partially unpaginated). That view of the laws in dispute would 
remove any doubt as to this Court’s authority to engage in plenary review 
to ensure that the decision below correctly interpreted the provisions 
adopted by the Florida Legislature to govern the appointment of electors. 

9 

II. THE COURT BELOW DEPRIVED PETITIONER 
AND AMICI OF THEIR FEDERAL RIGHT TO 
HAVE FLORIDA’S ELECTORS APPOINTED 
ACCORDING TO THE RULES AND DEADLINES 
ESTABLISHED BY FLORIDA’S LEGISLATURE 
A. The Constitutional Text, History, and 
Subsequent Judicial Decisions All Give the 
Florida Legislature, not the Florida Courts, 
Authority over the Appointment of Electors. 
The text of Art. II, § 1, cl. 2, the history of that provision’s 
framing, and subsequent decisions of this Court and other 
state and federal courts all confirm that each State’s 
Legislature possesses plenary and exclusive authority to 
determine the manner in which electors are appointed. When 
a state Legislature enacts laws to govern the appointment of 
electors, it exercises authority under Art. II, § 1, cl. 2. See, 

e.g., U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 804-05 
(1995). If a state court fails to respect the Legislature’s 
enactments and rewrites them in the service of its own view 
of the proper method for appointing electors, the court 
reverses the allocation of authority expressly provided by Art. 
II, § 1, cl. 2. Accordingly, state-court judicial legislation 
concerning the appointment of electors is not merely an 
unfortunate instance of judicial activism – it violates the 
federal Constitution. 

Art. II, § 1, cl. 2, provides that “[e]ach State shall appoint, 
in such Manner as the Legislature thereof may direct, a 
Number of Electors, equal to the whole Number of Senators 
and Representatives to which the State may be entitled in the 
Congress.” This provision lodges authority not simply in the 
States but uniquely in the state legislatures. The Constitution 

10 

does not leave the States free to decide how to allocate 
authority over appointment of electors among their various 
branches of government. By resolving this question for each 
State, the Constitution pre-empts any state-law separation of 
powers questions. Whatever may be the division and balance 
of power among a State’s branches of government on other 
matters, Art. II, § 1, cl. 2 guarantees that the appointment of 
electors remains under the control of the state legislature. 

The history of the framing of Art. II, § 1, cl. 2 confirms 
what its text makes clear. Although the Framers disagreed as 
to the optimal method for selecting electors, they all agreed 
that the selection of electors was not a proper business for the 
state courts. The record of the framing and subsequent 
judicial decisions all confirm that the state legislature enjoys 
the primary authority over the appointment of electors, and in 
a dispute between the state legislature and the state courts, the 
legislature must prevail. 

The Framers’ express delegation to the state legislatures 
represented a deliberate and thoughtful accommodation 
between the views of those who favored direct popular 
election, those who favored election by the state legislatures, 
and those who preferred election by Congress. See 
McPherson, 146 U.S. at 28. The delegation also avoided 
subsidiary disagreements over whether States should 
apportion electoral votes by district or on a winner-take-all 
basis. See id. As this Court summarized in McPherson: “The 
final result seems to have reconciled contrariety of views by 
leaving it to the state legislatures to appoint directly by joint 
ballot or concurrent separate action, or through popular 
election by districts or by general ticket, or as otherwise might 
be directed.” Id. While the Framers disagreed about the best 

11 

method for choosing a President, they were of one mind that 
lodging such authority in the judiciary “was out of the 
question.” Madison, July 25, 1787 (reprinted in 5 Elliot’s 
Debates on the Federal Constitution 563). Madison 
acknowledged that “[t]here are objections against every mode 
that has been, or perhaps can be, proposed,” and addressed at 
length the advantages and disadvantages of various methods 
such as relying upon Congress, state legislatures, state 
executives, electors, and the people directly. Id. The 
impropriety of a judicial role, in contrast, was so clear to the 
Framers that it did not merit serious discussion. “The state 
judiciaries had not been, and he presumed would not be, 
proposed as a proper source of appointment.” Id. at 564. 

The early history of the Republic confirmed the preeminent 
role of the state legislatures in the appointment of electors. 
Although the electoral college did not function as the Framers 
envisioned in all its particulars, the state legislatures did 
exercise plenary authority over the appointment of electors in 
accord with the original design. From the beginning, “various 
modes of choosing the electors were pursued,” and “[n]o 
question was raised as to the power of the state to appoint in 
any mode its legislature saw fit to adopt.” McPherson, 146 
U.S. at 29. Indeed, appointment by the legislature itself, with 
no popular vote at all, was a common practice in the Nation’s 
early history. See id. at 29-32; see also, e.g., J. Story, 
Commentaries on the Constitution § 1466 (1833) (stating that 
the constitutionality of direct legislative appointment “has 
been firmly established in practice, ever since the adoption of 
the constitution, and does not now seem to admit of 
controversy, even if a suitable tribunal existed to adjudicate 

12 

upon it”).4 The Florida Legislature, for example, directly 
appointed electors without conducting a popular vote as late 
as 1868. See McPherson, 146 U.S. at 33. Despite this 
diversity of appointment methods, no record appears of any 
attempt by a state court to impose its own view concerning the 
manner for the appointment of electors upon the legislature. 
See id. at 35 (noting that “our attention has not been drawn to 
any previous attempt to submit to the courts the determination 
of the constitutionality of state action”). 

McPherson leaves no doubt that the plenary and exclusive 
power concerning the appointment of electors resides in each 
State’s legislature, and not any other branch of state 
government. The Court recognized that “the sovereignty of 
the people is exercised through their representatives in the 
legislature.” Id. at 25. As a result, the Court reasoned that the 
state legislatures logically would possess authority over the 
appointment of electors even if Art. II, § 1, cl. 2, allocated that 
power to the States generally without specifying its delegation 
to the state legislatures. See id. However, this reasoning does 
not render the specific delegation to the state legislatures a 
nullity. As the Court explained, “the insertion of those words 
[specifying that such power resides in each legislature], 
operat[es] as a limitation upon the state in respect of any 

4 In the 108 years since it was handed down, this Court has never questioned 
its unanimous opinion in McPherson. In Williams v. Rhodes, supra, Justice 
Harlan reviewed the historical record of the adoption of Art. II, § 1, cl. 2, 
and expressly reaffirmed McPherson. See 393 U.S. at 42-45 & nn.3-7 
(Harlan, J., concurring in the result). Justice Stewart, in dissent, relied upon 
McPherson to assert that each State remains “perfectly free under the 
Constitution to provide for the selection of its presidential electors by the 
legislature itself.” Id. at 49. 

13 

attempt to circumscribe the legislative power.” Id.5 
Accordingly, Art. II, § 1, cl. 2 expressly prevents a state court 
from overriding the state legislature’s procedures and 
deadlines for appointing electors or otherwise “attempt[ing] 
to circumscribe the legislative power.” 

Art. II, § 1, cl. 2, is one of a relative handful of 
constitutional provisions that delegate authority to a specified 
governmental entity within the state government, as opposed 
to authorizing or prohibiting action by the States. This 
Court’s interpretation of another of these provisions 
underscores that States do not remain free to reallocate 
authority that the Constitution specifically assigns. 

The Constitution specifies that to become effective a 
proposed amendment must be ratified “by the Legislatures of 
three-fourths of the several states.” U.S. Const. Art. V. In 
Hawke v. Smith, this Court unanimously rejected an attempt 
by a State to reallocate the ratification authority from the 
legislature to the people through the referendum process. The 
Court first observed that “Legislatures” “was not a term of 
uncertain meaning when incorporated into the Constitution,” 
but rather referred to “the representative body which made the 
laws of the people.” 253 U.S. at 227. The Court considered 
the other places in the Constitution where the term was used 
“with this evident meaning,” and concluded that “[t]here can 
be no question that the framers of the Constitution clearly 

5 Still more emphatically, the Court quoted a Senate report that declared that 
the appointment of electors was “placed absolutely and wholly with the 
legislatures of the several states. . . . This power 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 any more than 
can their power to elect senators of the United States.” Id. at 34-35 (quoting 
S. Rep. No. 395, 43d Cong., 1 

st Sess. (1874)). 

14 

understood and carefully used the terms in which that 
instrument referred to the action of the Legislatures of the 
states.” Id. at 227, 228. While Ohio’s constitution required 
a referendum, the Court explained that the “act of ratification 
by the state derives its authority from the federal 
Constitution,” id. at 230, and States do not have the power to 
reassign those constitutionally allocated functions. The States 
must follow the procedure specified by Article V. 

The Hawke Court’s reasoning applies equally here. When 
Florida’s Legislature enacted the statutes that govern the 
appointment of electors, it was exercising its plenary authority 
derived from Art. II, § 1, cl. 2’s specific command. Under 
that clause, neither the Florida Supreme Court nor any other 
instrumentality of the Florida government has any right to 
determine the manner in which Florida’s electors are 
appointed.6 Whatever may be the division and balance of 
power under the constitution or laws of Florida in other 
contexts, when it comes to Article II makes the Florida 
Legislature supreme over the Florida courts. By rewriting the 
Legislature’s enactments below in the service of its own view 
of the proper method for appointing electors, the Florida 
Supreme Court reversed the allocation of authority expressly 
provided by Art. II, § 1, cl. 2. As explained supra, such state- 

6 To be sure, the Florida legislature can assign a role to the Florida Supreme 
Court. However, when, as here, the parties dispute whether the Florida 
Supreme Court has exercised an implicitly delegated statutory interpretation 
function or arrogated authority that the Florida Legislature never intended 
to delegate, the Florida Supreme Court cannot have the last word as to 
whether the Florida Supreme Court acted ultra vires. If Petitioner is correct 
that the Florida Supreme Court exercised an authority never delegated to it, 
then the decision below represents a deprivation of federal constitutional 
rights that cannot be left unremedied. 

15 

court judicial legislation concerning the appointment of 
electors does not merely raise issues of state law – that 
practice violates the federal Constitution. 

In striking contrast to the Florida Supreme Court’s 
arrogation of authority to decide the manner in which 
Florida’s electors should be appointed, other States’ supreme 
courts have confirmed the primacy of the state legislature in 
such disputes. In State ex rel. Beeson v. Marsh, 34 N.W.2d 
279, 286 (Neb. 1948), for example, the Nebraska Supreme 
Court found that the petitioners had “failed to follow the 
procedure directed by the Legislature.” The court then 
dismissed petitioners’ argument that the statutory procedure 
violated the state constitution as “misconceiv[ing] the scope 
of article II, section 1 . . . and the powers therein granted to 
the Legislature.” Id. The court held, consistent with 
McPherson, that the Legislature’s plenary power under 
Article II could not be “circumscribe[d]” and therefore 
concluded that it was “unnecessary . . . to consider whether or 
not there is a conflict between the method of appointment of 
presidential electors directed by the Legislature and the state 
constitutional provision.” Id. at 287. 

The New Hampshire high court likewise has emphasized 
that the procedures enacted by the legislature in the exercise 
of its plenary authority are not subject to judicial second- 
guessing. In response to a question concerning the 
constitutionality of the legislature’s provision for absentee 
voting, the court pointed out that “[t]he whole discretion as to 
the manner of the appointment is lodged, in the broadest and 
most unqualified terms, in the legislature.” In re Opinions of 
Justices, 45 N.H. 595, 1864 WL 1585, at *5 (N.H. July 19, 
1864). The plenary nature of the legislature’s power excluded 

16 

any role for the court: “We have not found it easy to see what 
valid legal objections there can be to this exercise of the 
unlimited authority given by the Constitution . . . .” Id. See 

also In re Opinion of the Justices, 113 A. 293, 298 (N.H. 
1921) (reaffirming the court’s 1864 opinion and holding that 
“[a]s the manner of making the appointment is left to the 
Legislature of each state, there can be no constitutional 
objection to the scheme now proposed”). 7 

The limited federal case law confirms the limited role of 
the state judiciary and the plenary authority of the state 
legislature. The decision in Case of Electoral College, 8 F. 
Cas. 427 (C.C.D.S.C. 1876) (partially unpaginated), an 
extraordinary habeas corpus case arising out of the disputed 
presidential election of 1876, demonstrates that a state court’s 
interference in a dispute concerning the appointment of 
electors clearly abridges the state legislature’s preeminent 
authority under Art. II, § 1, c1. 2. South Carolina law vested 
state election officials with the authority not only to collect 
and tabulate votes, but also to decide “all cases under protest 
and contest that may arise,” and to certify their determination 
of the election to the secretary of state by a certain date. See 
id. at 431. The officials’ resolution of such protests and issues 
as arose evidently displeased some elements within the South 
Carolina government, because the state supreme court ordered 
the officials simply to aggregate the local returns and to report 
the total, without looking beyond the face of the returns or 

7 See also 10 Annals of Cong. 131-146 (1800) 130 (Sen. Pinckney: “if it is 
necessary to have guards against improper elections of Electors, and to 
institute tribunals to inquire into their qualifications, with the State 
Legislatures, and with them alone, rests the power to institute them, and they 
must exercise it”). 

17 

considering any protests or contests. After the officials had 
certified their determination of the election in accordance with 
their independent performance of their statutory duties, the 
state supreme court ordered them to certify a contrary 
determination. When the officials refused on the ground that 
having adjourned sine die pursuant to statute, they no longer 
constituted a canvassing board and had no authority to do as 
the court ordered, the court held them in contempt and 
imprisoned them. 

The federal court granted the writ of habeas corpus. The 
federal court first held that the officials’ actions were “in 
pursuance of a law of the United States,” id. at 434, because 
the officials’ powers and duties under the statutes of South 
Carolina were “derived directly” from Art. II, § 1, cl. 2, id. at 
432. The South Carolina legislature, “in obedience to that 
provision, ha[d] by law directed the manner of appointment of 
the electors,” and “that law ha[d] its authority solely from the 
constitution of the United States.” Id. at 433. The corollary 
of the court’s holding that the officials’ actions were 
authorized by Article II was that “the whole matter was 
beyond the jurisdiction of the supreme court” and the officials 
“were in no wise subject to the control . . . of the judicial 
department.” Id. at 433-34. The state supreme court’s 
attempts to interfere with the officials’ performance of their 
statutory duties therefore were void, and the officials were 
entitled to release.8 

8 While the federal court’s opinion is not explicit, the habeas petitioners 
appear to have certified the electors for Hayes and the state supreme court 
appears to have ordered them to certify the electors for Tilden. See W. 
Josephson & B. Ross, Repairing the Electoral College, 22 J. Legis. 145, 
185 (1996). The disputed resolution of protests may have concerned fraud 

18 

Although since the Case of Electoral College the federal 
courts have not directly addressed an effort by a state court to 
usurp a state legislature’s authority under Art. II, § 1, cl. 2, a 
number of subsequent cases have emphasized the primary role 
of state legislatures in election matters. In other election 
contexts, even in the absence of a clear textual delegation of 
authority to state legislatures, this Court has emphasized the 
primary role of state legislatures in remedying constitutional 
violations. For example, while this Court has found 
apportionment disputes justiciable, it also has counseled 
deference and left questions of remedy to state legislatures. 
See, e.g., WMCA, Inc. v. Lomenzo, 377 U.S. 633, 655 (1964). 
Several Justices expressed similar concerns in the context of 
presidential elections in Williams v. Rhodes. See 393 U.S. at 
40 (Douglas, J., concurring) (“The relief asked is of such a 
character that we properly decline to allow the federal courts 
to play a disruptive role in this 1968 state election.”); id. at 48 
(Harlan, J., concurring in the result) (“Since Ohio’s 
requirement is so clearly disproportionate to the magnitude of 
the risk that it may properly act to prevent, I need not reach 
the question of the size of the signature barrier a State may 
legitimately raise against third parties on this ground. This 
should be left to the Ohio Legislature in the first instance.”). 

B. The Decision Below Violated Article II, Section 1, 

Clause 2 By Usurping the Florida Legislature’s 
Authority. 

Pursuant to its authority and responsibility under Art. II, § 
1, cl. 2, the Florida Legislature has enacted a comprehensive 
statutory scheme governing the manner in which Florida’s 

or intimidation directed at pro-Hayes black voters. See id. at 185 n.299. 

19 

electors shall be appointed. As detailed above, Art. II, § 1, cl. 
2, obligated the Florida Supreme Court to respect the 
Legislature’s exercise of its plenary power. In the decision 
below, however, the Florida Supreme Court disregarded that 
obligation and created entirely new rules of law to govern the 
appointment of Florida’s electors. The court below identified 
a statutory conflict where none existed, purported to resolve 
that illusory conflict by imposing a rule directly contrary to 
the rule mandated by the statute, ignored clear statutory 
deadlines, and created new deadlines out of whole cloth. This 
exercise of court-claimed “equitable” power is incompatible 
with the Florida Legislature’s plenary authority and Art. II, 
§ 1, cl. 2 of the Constitution. The decision below does not 
reflect a customary exercise in statutory interpretation. To the 
contrary, the court below rewrote the relevant statutes in a 
manner that clearly usurped the Florida Legislature’s authority 
under Art. II, § 1, cl. 2. 

The plain terms of Fla. Stat. § 102.111 expressed the clear 
will of the Florida Legislature and should have resolved this 
dispute. That provision directs the Elections Canvassing 
Commission, the body that the Legislature charged with 
“certify[ing] the returns of the election and determin[ing] and 
declar[ing] who has been elected for each office,” to reject 
late returns and to certify the election based on timely returns. 
Id. It provides that if any counties’ 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.” 
Id. (emphasis added). The Secretary of State did no more than 
obey this statutory command when she sought to certify the 
election based on the results submitted to the Commission by 

20 

5 p.m. on November 14, 2000. 

The court below, of course, overrode this statutory deadline 
and imposed its own deadline of November 26, a date of its 
own invention. In so doing, the court below relied on its 
belief that “the mandatory language in section 102.111 
conflicts with the permissive language in 102.112.” Pet. App. 
at 17a. In reality, no such “conflict” exists. Section 102.112, 
the provision appearing immediately after § 102.111’s 
directive to the state Commission, is addressed to the various 
counties’ canvassing boards. Whereas § 102.111 specifies the 
duties of the Commission, § 102.112 spells out the duties of 
the county canvassing boards. In perfect harmony with § 
102.111, § 102.112 provides that county canvassing boards 
“must . . . file[ ]” returns with the Secretary of State “by 5 

p.m. on the 7 

th day following the . . . general election.” After 
specifying the county boards’ duty and deadline, § 102.112 
puts the boards on notice of the consequences that may ensue 
if the boards fail to comply. Section 102.112 informs the 
boards that if they fail to file their returns by the statutory 
deadline, they will incur personal fines and any late-filed 
returns “may be ignored” by the Commission. Id. (emphasis 
added). 

These provisions are directed to different entities and 
perform different functions. Accordingly, there is no conflict. 
The one provision imposes a mandatory duty on the statewide 
Commission. The other imposes a duty on county boards and 
warns them of the consequences of their failure to comply 
with that duty. Both provisions mandate the identical 
deadline. The fact that the latter warning is less categorical 
than it could be, does not deprive the specific direction to the 
statewide Commission of its mandatory character. For these 

21 

reasons, a proper interpretation of Florida law would have 
rejected the asserted conflict as illusory and interpreted § 
102.111’s mandatory direction to the statewide Commission 
to mean what it says. 

This would be the correct answer as a matter of statutory 
interpretation even if the federal Constitution did not supply 
an independent reason for state courts to abide by the state 
legislature’s will, and even if principles of constitutional 
avoidance did not favor a construction that avoided a 
potentially difficult constitutional question. In reality, 
however, Art. II, § 1, cl. 2, requires state courts to honor the 
expressed legislative will concerning the process of the 
appointment of electors, and principles of constitutional 
avoidance counsel in favor of accepting a construction that 
conforms as closely as possible to the expressed legislative 
will. Under these circumstances, the misconstruction of the 
Florida statutes by the court below cannot stand. 

Of course, even if (contrary to fact) there were a “conflict” 
between § 102.111’s mandatory provision and § 102.112’s 
permissive provision, no justification can be imagined for the 
court’s “solution.” The court resolved a purported conflict 
between directives that the Commission “shall ignore” late- 
filed results and that the Commission “may ignore” late-filed 
results, by holding that the Commission “shall not ignore” 
late-filed results. Whether or not the Commission always is 
required to ignore late-filed results, the court’s holding that 
the Commission is forbidden to ignore late-filed results 
blatantly rewrites the Legislature’s handiwork. 

The court further belied its professions of “reluctance to 
rewrite the Florida Election Code,” Pet. App. at 37a, by 
arrogating the authority to impose a new deadline to replace 

22 

the deadline specified by the Legislature and obliterated by 
the court’s own “interpretive” exercise. Based on its 
“equitable” conception of reasonableness, see id., the court 
unveiled its own scheme to determine the appointment of 
Florida’s electors. Paying no heed to the Legislature’s pre- 
election exercise of its plenary power under Article II, the 
court conducted its own weighing of the interests in finality 
and accuracy embodied in the Legislature’s express deadline 
mandate. The court extended the Legislature’s November 14 

th 

deadline to November 26 

th to allow what the court considered 
to be “a fair and expeditious resolution of the questions 
presented” in the present dispute over the appointment of 
Florida’s electors. Pet. App. at 38a. That was an exercise of 
judicial legislation, not statutory interpretation. 

Of course, even a blatant exercise of judicial lawmaking by 
a state court under the guise of the interpretation of a state 
statute would not justify this Court’s intervention, absent a 
violation of a federal right. But as explained above, Art. II, § 
1, cl. 2’s delegation of preeminent authority over the 
appointment of federal electors to the state legislature converts 
an otherwise merely regrettable exercise in judicial lawmaking 
into a constitutional violation. In the context of a federal 
election for the appointment of electors,9 this Court possesses 

9 By vindicating the federal constitutional right to have the appointment of 
presidential electors determined as directed by the state legislature, this 
Court would not necessarily disturb the Florida Supreme Court’s 
misinterpretation of § 102.111 when it comes to state elections. This Court 
possesses jurisdiction only to vindicate federal constitutional rights, which 
in the unique context of Art. II, § 1, cl. 2, requires state courts to interpret 
state law concerning the appointment of electors correctly. This Court 
enjoys no general jurisdiction to correct misinterpretations of state law 
solely for the sake of error correction. 

23 

jurisdiction to correct the Florida Supreme Court’s 
misinterpretation and to vindicate Petitioner’s and Amici’s 
rights to have electors appointed pursuant to the laws enacted 
by the Florida Legislature. This Court should reject the 
interpretation of the Court below and construe § 102.111’s 
mandatory provision to mean what it says. That interpretation 
avoids a constitutional violation and vindicates rights claimed 
under the federal Constitution. 

10 

III. SECTION FIVE OF TITLE THREE PREVENTS 
THE FLORIDA SUPREME COURT FROM 
REWRITING THE LAWS GOVERNING THE 
APPOINTMENT OF ELECTORS AFTER 
ELECTION DAY 
As demonstrated above, the Constitution specifically grants 
state legislatures the plenary and exclusive authority to 
appoint electors. U.S. Const., Art. II, § 1, cl. 2. In accordance 
with this constitutional command, Congress has vested state 

10 The blatant nature of the Florida Supreme Court’s error obviates the need 
to decide whether a state court’s interpretation of a state law concerning the 
appointment of electors need be grievously wrong or merely erroneous to 
justify this Court’s intervention. Amici submit, however, that this Court 
possesses jurisdiction to vindicate any error in the interpretation of such 
laws for at least two reasons. First, Art. II, § 1, cl. 2 gives Petitioner and 
Amici a right to have electors appointed as directed by the state legislature. 
Close does not count. Second, laws enacted by state legislatures pursuant 
to their authority under Art. II, § 1, cl. 2, are properly construed as federal 
law, rather than state law. See Case of Electoral College, 8 F. Cas. 427 
(C.C.D.S.C. 1876). Accordingly, deference or a demand for a particularly 
egregious violation play no role. Of course, even though this Court 
possesses jurisdiction to correct all errors, it can limit its exercise of that 
jurisdiction to cases, like this one, that involve egregious misinterpretations 
of state law (and, therefore, clear violations of federal rights). 

24 

legislatures with the authority to prescribe the procedures for 
appointing electors. See 3 U.S.C. §§ 2, 5, 7. Federal law – 
both constitutional and statutory – therefore clearly vests state 
legislatures, not state courts, with the sole authority to set the 
procedures governing the appointment of electors. 

A number of provisions of federal law reflect the 
preeminent role of state legislatures. For example, 3 U.S.C. 
§ 2 recognizes the state legislature’s authority, in a case when 
the State fails to make a valid choice on election day, to 
appoint electors “in such a manner as the legislature of such 
State may direct.” (emphasis added); see also 3 U.S.C. § 7 
(granting state legislatures authority regarding the meeting 
and voting of electors). Congress has recognized that the 
Constitution vests state legislatures, not state courts, with the 
authority to frame such election procedures. 

Congress not only recognizes the preeminence of state 
legislatures, it also reinforces the value of setting election 
rules before election day. See 3 U.S.C. § 5. That section 
states in pertinent part: “If any State shall have provided, by 
laws enacted prior to the day fixed for the appointment of the 
electors [this year, November 7 

th] for its final determination 
of any controversy or contest concerning the appointment of 
all or any of the electors of such State . . . such determination 
made pursuant to such law so existing on said day. . . shall be 
conclusive, and shall govern in the counting of the electoral 
votes as provided in the Constitution.” (emphasis added). 

This section ensures that if a State has a procedure in place 
before election day, a determination made in any controversy 
pursuant to that procedure “shall be conclusive, and shall 
govern in the counting of electoral votes.” 3 U.S.C. § 5. 
Here, the Florida Supreme Court has usurped the Florida 

25 

Legislature’s authority by “enacting” new law after the 
election to replace the governing law that was duly enacted by 
the Florida Legislature prior to election day. These actions by 
the Florida Supreme Court violate not only Article II, § 1, cl. 
2 of the United States Constitution but also 3 U.S.C. § 5. 

A. The Florida Supreme Court Impermissibly 

Rewrote the Law Governing the Appointment of 
Electors After Election Day. 

The Florida Legislature enacted a procedure long before 
election day to govern the appointment of the electors. The 
decision below rewrote those procedures long after the votes 
were cast. That post-hoc judicial lawmaking violated Art. II, 
§ 1, cl. 2 and 3 U.S.C. § 5, as well as the broader maxim that 
“[e]lections belong to the political branch of the government 
and . . . are beyond the control of judicial power.” Roe v. 
Alabama, 43 F.3d 574, 577 (11th Cir. 1995). 

The Florida Legislature has enacted detailed provisions 
governing elections. Those statutes include provisions for 
“final determination of any controversy or contest concerning 
the appointment of any or all electors. . . .” See 3 U.S.C. § 5. 

The Florida Legislature follows 3 U.S.C. § 1 in identifying the 
date for the appointment of Presidential electors. See Fla. 
Stat. § 103.111. As noted above, Florida law also provides 
for a November 14 

th deadline for the filing of returns with the 
state-wide election Commissioner and directs the Commission 
that any late-filed returns “shall be ignored.” See Fla. Stat. § 
102.111. 

In sum, the Florida Legislature has put in place a detailed 
procedure that governs elections. The decision below ignored 
this procedure in favor of a system of the Court’s own 
devising that was not promulgated until after the statutory 

26 

deadline had passed. This post-election rewriting of the rules 
by the Florida Supreme Court has created disarray by 
changing the rules after the game was over. 

“Common sense, as well as constitutional law, compels the 
conclusion that government must play an active role in 
structuring elections; ‘as a practical matter, there must be a 
substantial regulation of elections if they are to be fair and 
honest and if some sort of order, rather than chaos, is to 
accompany the democratic processes.’” Burdick v. Takushi, 
504 U.S. 428, 433 (1992) (quoting Storer v. Brown, 415 U.S. 
724, 730 (1974)). A key element to any system of fair 
elections is that the governing authority – here, the Florida 
Legislature pursuant to Art. II, § 1, cl. 2 – must set the rules 
in advance. Senator Samuel Smith colorfully described the 
obvious and special dangers of such a post-election “law to be 
passed for the occasion” almost two centuries ago in the 
context of the disputed election of 1800. 1 Dec. 1803, Annals 
13:129 (reprinted in 5 Founders’ Const. at 453). Senator 
Smith warned that if it had been attempted to “elect[ ] a 
President by a law to be passed for the occasion, . . . the 
person, whoever he might have been, would have met the fate 
of an usurper, and his head would not have remained on his 
shoulders twenty-four hours.” Id. The Florida Supreme 
Court disregarded both the substantial regulations set in place 
by the Florida Legislature and the substantial dangers of such 
retroactive lawmaking in its decision below. 

The Court substantially rewrote the statutory provisions for 
final resolution of controversies and contests in four ways: by 
changing the mandatory deadline for county canvassing 
returns to be submitted; by eliminating the Department of 
State’s discretion regarding the acceptance of late returns; by 

27 

changing the time-line for pre-certification challenges; and by 
changing the time-line for post-certification challenges. 

First, the Florida Supreme Court ignored the Florida 
Legislature’s November 14 

th deadline in favor of its own 
deadline of 5:00 p.m. on November 26th. See Pet. App. at 
38a. The court attempted to justify this decision based on the 
illusory conflict discussed above. The court’s exploitation of 
a supposed conflict between a direction that late-filed results 
“shall be ignored” and that such results “may be ignored” to 
impose a requirement that such results “shall not be ignored” 
defies justification. 

However, the Florida Supreme Court’s post-hoc exercise 
in judicial lawmaking did not end there. In addition to 
rewriting existing Florida law on certification, the Florida 
Supreme Court also rewrote deadlines set by the Florida 
Legislature regarding election challenges. Florida law sets out 
two procedures for challenging election results. First, before 
certification, an election “protest” may be lodged with the 
county canvassing board. Fla. Stat § 102.166. Such a protest 
must be lodged “prior to the time the canvassing board 
certifies the results for the office being protested or within 5 
days after midnight of the date the election is held, whichever 
occurs later.” Fla. Stat. § 102.166(2). Accordingly, by 
rewriting the certification deadline from November 14 

th to the 

26 
th, the court below also rewrote the deadline for filing 
election protests. 

The Florida Legislature also has prescribed the method for 
conducting a post-election “contest.” Section 102.168 allows 
a complaint to be filed within 10 days after the last county 
canvassing board certifies its results or within 5 days after a 
specific canvassing board certifies its results following a 

28 

protest pursuant to 102.166(1), whichever is later. This 
provision recognizes the necessity of certifying results in a 
timely manner to allow sufficient time for this post-election 
challenge. Florida statutes require an immediate hearing in a 
post-election challenge, but also set forth the time for the 
development of the litigation. A complaint must be filed 
within ten days after the certification and ten additional days 
are allotted for an answer. See Fla. Stat. § 102.168(2), (6). Of 
course, the courts must also allow for any necessary pleadings 
and discovery. 

With a congressionally-imposed deadline of December 12 

th 

to conclude any election protest, see 3 U.S.C. §§ 5 and 7, any 
ongoing election challenge that precludes a final certification 
jeopardizes the inclusion of Florida’s electoral votes. By 
moving the certification date, the Florida Supreme Court cut 
the time period to litigate a post-election challenge nearly in 
half, from twenty-nine days to only fifteen days. In light of 
the relatively brief time period between the federally specified 
dates for the election and final appointment of electors, the 
selection of deadlines necessarily requires a balancing of 
trade-offs. Allowing more time for pre-certification recounts 
and protests allows less time for post-certification contests. 
Certain kinds of challenges, such as those involving voter 
fraud or intimidation, may be better suited for a post-election 
contest and cannot be remedied by a recount in any event. 
Accordingly, the setting of deadlines necessitates delicate 
policy judgments. 

Art. II, § 1, cl. 2, delegates those policy judgments to the 
Florida Legislature and 3 U.S.C. § 5 requires those policy 
judgments to be made before election day. By rewriting the 
certification date, the Florida Supreme Court reconsidered all 

29 

the Florida Legislature’s judgments concerning these timing 
issues and violated both of these provisions of federal law. 

B. In Light of Art. II, § 1, cl. 2 and 3 U.S.C. § 5, It 

Makes No Sense to Allow the Florida Supreme 
Court To Rewrite the Law Governing the 
Appointment of Electors After Election Day. 

As explained above, Art. II, § 1, cl. 2 prevents the Florida 
Supreme Court from usurping the Florida Legislature’s 
authority to direct the appointment of electors, and 3 U.S.C. 
§ 5 imposes an additional federal obstacle to judicial 
lawmaking after election day. Together these two provisions 
clearly belie the proposition necessarily advanced by 
Respondents: that the Florida Supreme Court possesses the 
exclusive authority – to the exclusion of both this Court and 
the Florida Legislature – to dictate the content of the law 
governing the appointment of electors after election day. This 
suggestion turns federal law on its head. 

Art. II, § 1, cl. 2 clearly gives state legislatures a 
preeminent role in determining the appointment of electors. 
Section 5 then imposes a sensible non-retroactivity principle. 
Courts generally interpret statutes in a manner that sets their 
meaning retroactively. That, however, does not permit state 
courts to escape the limitations imposed by the Constitution 
and federal law. Respondents’ implicit theory is that when a 
state court errs in interpreting statutory provisions for 
appointing electors it neither usurps legislative authority nor 
creates new law. In fact, such an erroneous decision does 
both, in clear violation of Art. II, § 1, cl. 2, and 3 U.S.C. § 5. 

Respondents’ view ignores constitutional text and history. 
It takes the one branch of state government the Framers 
thought wholly unsuited for direct participation in the 

30 

appointment of electors and not only gives it pride of place, 
but insulates its errors from review. Respondents’ view 
makes hash out of a straightforward delegation of the primary 
authority over the appointment of electors to state legislatures. 
The Constitution authorizes this Court to review and correct 
erroneous judicial constructions of statutory provisions 
governing the appointment of electors. This Court should 
exercise that authority and correct the Florida Supreme 
Court’s erroneous decision or defer to the authority of the 
Florida Legislature to vindicate the meaning of its election 
laws as they were written. 

31 

CONCLUSION 

For the foregoing reasons, and those expressed in 
Petitioner’s Brief, this Court should reverse the judgment 
below. 

Respectfully submitted, 

GRIFFIN B. BELL 
KING & SPALDING 
191 Peachtree Street 
Atlanta, GA 30303 
(404) 572-4600 

PAUL D. CLEMENT 
JEFFREY S. BUCHOLTZ 
KING & SPALDING 
1730 Pennsylvania Ave., 
NW 
Washington, DC 20006 
(202) 737-0500 

VIET D. DINH 

600 New Jersey Ave., NW 
Washington, DC 20001 
(202) 662-9324 
JAY ALAN SEKULOW 

Counsel of Record 
THOMAS P. MONAGHAN 
STUART J. ROTH 
COLBY M. MAY 
JAMES M. HENDERSON, SR. 
DAVID A. CORTMAN 
AMERICAN CENTER FOR 

LAW & JUSTICE 

Suite 609 
1000 Thos. Jefferson St., 
NW 
Washington, DC 20007 
(202) 337-2273 

Attorneys for Amici Curiae William H. Haynes, et al. 

November 28, 2000. 

ADDENDUM 

1a 

Participating Amici 

The following individuals, who reside in Florida, voted on 
November 7, 2000, in Florida, in the presidential election 
contest, and are amici whose interests are presented for the 
Court’s consideration in this brief: 

William H. Haynes, Anne Finnegan, April Fultz, 
Audrey Yeackle, Audrey T. Ridder, Bert Carrier, Beth 
Kee, Billy Joe Thompson, Bob Groseclose, Bruce 
Reeves, Carol Thompson, Carole Ridinger, Cathy 
Rudowske, Charles Shetterly, Connie Mendez, 
Constance Renard, Dan Pugh, Dan Welbaum, Debra L. 
Bigelow, Elaine Sharpe, Eric Reinhold, George Asbell, 
Gwyn Groseclose, Jane Yeackle, Janie Tedeschi, Jenny 
Deloach, Jill Rodrigez, John Holloway, John Yeackle, 
Kathy Elliott, Ken Londeree, Lois Strong, Lynn 
Lancaster, Malcolm Sharpe, Marilyn Kintner, Mark 
Rudowske, Marnee Benz, Mary Smothers, Melissa 
Whited, Michael Kintner, Mike Renard, Patricia 
Sullivan, Randy Woods, Rhetta Haynes, Rod Fultz, Rod 
Lyon, Ron Nash, Rosalie Londeree, Ruth Ann Smith, 
Sarah H. Taylor, Sarah Langdon, Scott Sullivan, Scott 
Concelman, Shane Smith, Sheldon Benz, Steve Davis, 
Steve Deloach, Susan Woods, Tara Concelman, Vincent 
Tedeschi, Wanda Ostlie, William C. Andrews, Jr.