No. 00-836 
________________________________ 
IN THE 
SUPREME COURT OF THE 
UNITED STATES 
____________________ 
GEORGE W. BUSH 

Petitioner, 

v. 
PALM BEACH COUNTY CANVASSING BOARD, et al., 
Respondent. 
_________________________________ 
On A Writ of Certiorari 
To The Supreme Court of Florida 
_____________________ 
BRIEF OF AMICI CURIAE 
THE COMMONWEALTH OF VIRGINIA AND 
THE STATES OF SOUTH CAROLINA AND NEBRASKA 
IN SUPPORT OF THE PETITIONER 
______________________ 
MARK L. EARLEY 

CHARLIE CONDON 
Attorney General of Virginia 
Attorney General of South Carolina 

P. O. Box 11549 

RANDOLPH A. BEALES 
Columbia, South Carolina 29211 
Chief Deputy Attorney General 
(803) 734-3970 

WILLIAM HENRY HURD 
DON STENBERG 

Solicitor General 

Attorney General of Nebraska 

Counsel of Record 

2115 State Capitol 

Lincoln, NE 68509 

Office of the Attorney General 
(402) 471-2682 
900 East Main Street 
Richmond, Virginia 23219 
(804) 786-2436 
[Other counsel listed on signature 
page] 

TABLE OF CONTENTS 

TABLE OF AUTHORITIES ...................................................................................................... ii 

INTERESTS of AMICI CURIAE ................................................................................................ 1 

ARGUMENT ............................................................................................................................. 2 

Background: Punch Card Voting................................................................................................ 4 

Florida Law: Before and After the Election................................................................................ 7 

The New Rule Is Contrary To The Weight of Authority............................................................ 10 

CONCLUSION ........................................................................................................................ 20 

i 

TABLE OF AUTHORITIES 
CASES 

Coleman v. Wilder, 

Cir. Ct. City of Richmond (No. N 8541-1)............................................ 11, 12 

Delahunt v. Johnston, 
671 N.E.2d 1241................................................................................... 14, 15 

Duffy v. Mortenson, 
497 N.W.2d 437 (S.D. 1993) ......................................................................13 

Escalante v. City of Hermosa Beach, 
195 Cal. App. 3d 1009 (1987).....................................................................13 

Gallardo y Seary v. Noble, 
236 U.S. 135 (1915) ......................................................................................6 

McCavitt v. Registrars of Voters of Brockton, 
434 N.E.2d 620 (Mass. 1982) .....................................................................15 

Pullen v. Mulligan, 
561 N.E.2d 585 (Ill. 1990) ............................................................................7 

Rary v. Guess, 
198 S.E.2d 879 (Ga. Ct. App. 1973) .............................................................7 

Wright v. Indiana, 
428 N.E.2d 1212, 1223 (Ind. 1981)...............................................................7 

STATUTES AND REGULATIONS 
3 U.S.C. § 5 .............................................................................................. 2, 3, 8, 19 

Colo. Rev. Stat. § 1-7-508(2) .......................................................................... 18, 19 

Hawaii Rules § 2-53-16(d)....................................................................................16 

Ill. Admin. Code, tit 26, § 207.60..........................................................................16 

Ind. Code Ann. § 3-12-1-9.5(d).............................................................................16 

Mass. Regs Code, tit 950, § 54.07(6)(a) ................................................................17 

Mich. Admin. Code § 168.771(1)(h).....................................................................17 

Mich. Admin. Code § 168.783(2)(a) .....................................................................17 

Mich. Comp. Laws § 168.799a .............................................................................17 

Mont. Admin. R. § 44.3.1744(1)(c)(ii)..................................................................17 

Tenn. Comp. R. & Regs. § 1360-2-7.07(2) ..........................................................17 

Tex. Elec. Code Ann. § 127.130(d)(3) .............................................................17-18 

Va. Code § 24.2-801.............................................................................................11 

Wyo. Rules 002-040-006 § 17(c)(i) ......................................................................17 

OTHER 
Committee on House Administration, 

U.S. House of Representatives, 
Relating to Election of A Representative 
From The Eighth Congressional District of Indiana, 
H.R. Rep. No. 99-58, Apr. 29, 1985.......................................................10-11 

Don Van Natta, Jr., Counting the Vote: 

The Ballots; Dimpled Votes Are New 
Hope for Democrats, NEW YORK TIMES, 
Nov. 22, 2000, A1.......................................................................................10 

Don Van Natta, Jr., Counting the Vote: 

The Recount, NEW YORK TIMES, Nov. 20, 2000, A1 .....................................9 

Jan Crawford Greenberg and Dan Mihalopoulos, 

Bush Turns to Top U.S. Court, 
CHICAGO TRIBUNE, Nov. 23, 2000 at 1........................................................14 

John F. Harris, High Court to Hear Bush Appeal, 

WASHINGTON Post, Nov. 25, 2000..............................................................9-10 

John Mintz, Most States Don’ 
t Count Dimpled Ballots, 
WASHINGTON POST, Nov. 24, 2000 ..............................................................15 

Kathleen Parker, Rules Don’ 
t Count in Vote Recount, 
RICHMOND TIMES DISPATCH, NOV. 22, 2000 ..............................................19 

Letter from Secretary of State Bob Taft to Lorain 
and Huron County Boards of Elections (Dec. 12, 1994)...............................12 

Mark Silva, Partisans on Both Sides May 

Not Accept Fla. Supreme Court Decision, 
MIAMI HERALD, Nov. 20, 2000 .....................................................................9 

Martin Merzer and Caroline J. Keough, 

As Bush Files Suit, Sunday Morning, 
Recount Shows Gore Gains 36 Votes 
in Palm Beach County, Bush Loses 3, 
MIAMI HERALD, Nov. 13, 2000 ................................................................. 8-9 

Palm Beach County, Guidelines on Ballots 

With Chads Not Completely Removed (adopted Nov. 2, 1990)........................7 

Roberto Suru and George Lardner, Jr., 

Gore Gains in Broward, Bush in Palm Beach, 
WASHINGTON POST, Nov., 2000 at A1 ..........................................................8 

Shari Rudavsky, Board Set To Tackle The Undervotes, 

MIAMI HERALD, Nov. 23, 2000, at 5C.........................................................18 

Susan Fenechio, Republicans, Democrats 

Wrangle Over Broward’s Dimples, 
MIAMI HERALD, Nov. 24, 2000 .....................................................................9 

Webster’s Ninth New Collegiate Dictionary (1991)..............................................14 

What Is a Chad? available at http://www.cnn.com 
(last visited Nov. 27, 2000). ..........................................................................5 

INTERESTS OF AMICI CURIAE 

The Constitution of the United States grants to each State the right to 
participate • as a State • in electing the President of the United States. Each 
State holds a number of electoral votes, which will be cast for the candidate 
favored by its people when the Electoral College meets in December. Each State 
has a profound interest in ensuring that electors from other States have been chosen 
according to law. If a slate of electors is seated in violation of the law, their votes 
will effectively disenfranchise the States whose votes they wrongfully offset. 

The unlawful events in Florida that gave rise to this lawsuit are a matter of 
grave concern to the Amici. Although those events have not, so far, altered the 
slate of electors that will be seated, the matter is not yet concluded. Electors have 
now been certified; however, new challenges and contests are expected. The 
disenfranchisement that the Amici fear may yet occur. Florida has twenty-five 
electoral votes. Three of the Amici states • Virginia, South Carolina and 
Nebraska • collectively have twenty-six. Twenty-five of these votes would be 
negated wrongfully if the now-certified Florida electors favoring George W. Bush 
were ousted in favor of a competing slate seated through unlawful means. 

This is not, however, an issue confined to the 2000 election, or to States 
currently in danger of disenfranchisement. Allowing the violations of federal law 
to go unchecked would invite similar • perhaps competing • misconduct in 

future elections, possibly disenfranchising other States and surely undermining 
public confidence in the outcome of the election. In order to preserve their 
electoral votes • and the constitutional system of which they form a part • the 
Commonwealth of Virginia and the States of South Carolina and Nebraska file this 
brief as Amici Curiae in support of the petitioner, George W. Bush. 

ARGUMENT 

One of the issues before this Court is whether actions by the Florida 
Supreme Court violate the Due Process Clause and/or 3 U.S.C. § 5. This statute 
requires a State to resolve controversies relating to the appointment of electors 
under “laws enacted prior to” Election Day, and fundamental principles of due 
process allow nothing less. The actions in question include post-election decisions 
by the Florida Supreme Court that (i) arrogate to themselves the discretion 
previously vested by law in the Florida Secretary of State with respect to recount 
deadlines, and (ii) create a later deadline previously unknown in Florida law for 
local canvassing boards to complete and certify their recount results. The 
petitioner will show that the Florida court’s actions violate applicable federal law. 
The Amici will show that the violation is not harmless, and that the real harm 
caused is exacerbated by the factual context in which it occurred. The post- 
election change in Florida law announced by the Supreme Court of that State 

2 

allows • and was intended to allow • yet another post-election change of law: 
the counting of “dimpled chads” as votes. 

The effect of the Florida Supreme Court’s decision was to give three heavily 
Democratic counties • Broward, Miami-Dade, and Palm Beach • more time to 
conduct a manual recount of the ballots cast on November 7. During the recounts 
in those counties, supporters of the respondent, Albert Gore, Jr., demanded that so- 
called “dimpled chads” be included in the tally. (In fact, now that the results have 
been certified, Vice President Gore has filed suit claiming that the failure to count 
such ballots was unlawful.) 
Amici do not contend that the Constitution or federal 

law speak directly to the issue of dimpled chads. It is important for the Court to 
recognize, however, that this issue arose in Florida only because of the state 
supreme court’s decision to extend the deadline for manual recounts. Thus, the 
violation of 3 U.S.C. § 5 inherent in the court’s decision may have prejudiced • 
and may still prejudice • 
petitioner Bush because it gave the selected counties the 

opportunity to explore new ways of counting votes at the behest of his opponent. 
This is the kind of real-world effect that Congress undoubtedly sought to avoid 
when it provided, in 3 U.S.C. § 5, that election disputes must be decided according 
to laws enacted before the election is held. 

3 

Background: Punch Card Voting 

One of the voting systems often employed in the United States involves the 
use of punch card ballots. Several Florida counties use the punch card system. 
Voters are given a card containing a matrix of numbered positions arranged in 
columns and rows. Each position has been pre-scored to create a small rectangle 
that is held in place at each of its four corners. This rectangular piece of card stock 
is known as a “chad.” In the voting booth, the voter slides his card into a slot that 
aligns the numbered positions with a template bearing the names of the candidates, 
with a small hole next to each candidate’s name. By pressing a stylus through the 
hole next to the name of a candidate, the voter dislodges the corresponding chad, 
thereby creating a small hole in the card that will allow light to pass. The ballot is 
then fed into an electronic counting device that registers a vote for each candidate 
whose chad has been dislodged. Where the voter has voted for more than one 
candidate in the same race, the tabulating device will recognize the overvote and 
count the ballot for neither candidate. 

Sometimes, a chad on a punch card ballot is only partially dislodged and 
remains affixed to the ballot by one, two or three corners. These chads are known 
as “hanging chads” and are sometimes further differentiated by the number of 
corners that remain attached: One corner attached – “hanging chad;” two corners 

4 

attached – “swinging door chad;” and three corners attached – “tri-chad.” What Is 
a Chad? available at http://www.cnn.com (last visited Nov. 27, 2000). 

What is at issue here are not partially dislodged chads, but chads that are 
indented or that bulge in some way while remaining attached to the card at all four 
corners. Such indented • or dimpled1 • chads may occur when a voter places the 
stylus in the hole, but decides not to punch through. Dimpled chads may also 
occur by rough handling of the ballot or by imprecise manufacturing of the ballot. 
It can occur if the chad is pressed with a stylus or similar object while the ballot is 
lying on a hard, flat surface.2 Given the many ways in which a chad might become 
dimpled • without the voter intending a vote • 
the general practice in the United 

States is not to treat dimpled chads as votes. See infra at 10. 

There are at least three other reasons why it is inappropriate to treat dimpled 
chads as votes. First, treating them as votes is likely to wrong two groups of 
voters: the voters whose ballots have been turned into votes for candidates they 

1 According to the nomenclature adopted by the Palm Beach County Canvassing 
Board, a dimpled chad is “a chad on a voting ballot that is bulging, but not pierced, 
by a voter’s stylus.” What Is a Chad? available at http://www.cnn.com (last visited 
Nov. 27, 2000). 

2 It is this possibility that has led Respondents to suggest that dimpled chads may 
be the result of voting in a booth where “the voting machine [has] become[] 
clogged with chads from previous voters.” Brief in Opposition of Respondents, at 
6, n.2. Notwithstanding this theory, Respondents’brief contains no suggestion that 
any “clogged machines” were ever reported to poll workers or otherwise 
discovered in Florida. 

5 

did not support, and the voters whose actual votes for the competing candidates 
have been wrongfully offset. 

Second, treating indented chads as votes invites inconsistency. Some voters 
choose to express their ambivalence by punching out the chads of two or more 
candidates, thereby canceling out their own vote. If an indentation reflects a 
voter’s intent to punch out a chad, then logically every punch card ballot must be 
reexamined to see whether the vote cast by a detached chad has been cancelled out 
by an indented chad found on the same ballot and in the same race. There is no 
indication, however, that recount officials in Florida are taking such a consistent 
approach to the treatment of indented chads. 

Third, every voter has an opportunity to inspect his or her ballot before 
turning it in to be counted. The law presumes that public officials discharge their 
responsibilities appropriately. 

See, e.g., Gallardo y Seary v. Noble, 236 U.S. 135 

(1915). The law must presume as much about the average citizen exercising his or 
her responsibilities as a voter. Given the instructions provided to Florida voters, 
see infra at 7, it must be presumed that a citizen who intends to cast a vote for a 
candidate will not turn in a ballot on which the candidate’s chad is merely 
indented. To treat indented chads as votes turns this presumption upside down by 
presuming that citizens do not know what they are doing when they come to the 

6 

polls. Such an anti-democratic presumption ought not to guide our nation’s most 
democratic process. 3 

Florida Law: Before and After the Election 

Before November 7, 2000, the three counties where the manual recount has 
been most at issue • Palm Beach, Miami-Dade and Broward • did not recognize 
indented chads as votes. Prior adherence to this rule is shown, for example, by the 
official guidelines administered for a decade by the Palm Beach County 
Canvassing Board: 
[A] chad that is partially hanging or partially punched may be counted 
as a vote, since it is possible to punch through the card and still not 
totally dislodge the chad. But a chad that is fully attached, bearing 
only an indentation, should not be counted as a vote. An indentation 
may result from a voter placing a stylus in the position, but not 
punching through. Thus, an indentation is not evidence of intent to 
cast a valid vote. 

Palm Beach County, Guidelines on Ballots With Chads Not Completely Removed 
(adopted Nov. 2, 1990) (emphasis added). 

3 Although a few voters may make mistakes, courts have held, for example, that 
where a “ballot records a ‘no-vote’on the tabulating machine for a particular office 
because of the voter’s failure to utilize properly the vote recorded by punching out 
the ‘chad’with the instrument provided, the voter has disenfranchised himself with 
regard to that office.” Rary v. Guess, 198 S.E.2d 879, 880 (Ga. Ct. App. 1973). 
Similarly, the Supreme Court of Indiana upheld a trial court decision to reject a 
ballot in which the voter “apparently attempted to vote . . . but had not sufficiently 
punched the card.” Wright v. Indiana, 428 N.E.2d 1212, 1223 (Ind. 1981). 

7 

This rule was no secret. The necessity of removing the chad was explained 
at the polls on election day. Voting instructions provided clear diagrams 
demonstrating the proper method of punch card voting. The instructions also 
stated in capitalized and bolded letters: 

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. 

App. to Pet. for Cert. at 14a. 

In the days immediately following this year’s election, the Palm Beach 
Canvassing Board still followed the established rule on indented chads • the 
Board did not consider them votes. 

Then • in the middle of the recount • the 

Board abandoned the rule. “Nicks, dings and indentations” were then treated – in 
some cases – as votes even though they were “marks that are barely discernable to 
the human eye.” Roberto Suru and George Lardner, Jr., Gore Gains in Broward, 
Bush in Palm Beach, WASHINGTON POST, Nov. 25, 2000, at A1 (quoting Judge 
Charles W. Burton, head of the Palm Beach Canvassing Board). Standing alone, 
this change in the rules would be enough to run afoul of due process and 3 U.S.C. 
§ 5. But, to compound the problem, no new written standard was ever adopted for 
when indentations would be treated as votes. “[B]allot inspectors in Palm Beach 
County switched standards in the middle of the manual count, a development that 

8 

produced quite a spectacle.” Martin Merzer and Caroline J. Keough, As Bush Files 
Suit, Sunday Morning, Recount Shows Gore Gains 36 Votes in Palm Beach 
County, Bush Loses 3, MIAMI HERALD, Nov. 13, 2000. Replacing a settled, written 
rule with this post-election, ad hoc approach cannot be squared with the certainty 
contemplated by both fairness and federal law. 

Palm Beach was not alone. Broward County started the recount by not 
counting indented chads, but began to include them after the recount had 
progressed about half-way. See Don Van Natta, Jr., Counting the Vote: The 
Recount, NEW YORK TIMES, Nov. 20, 2000, at A1. In fact, Broward changed its 
standards twice, once before the Florida Supreme Court decision and, again, after 
that decision. See, e.g., Mark Silva, Partisans on Both Sides May Not Accept Fla. 
Supreme Court Decision, MIAMI HERALD, Nov. 20, 2000 (“Broward canvassing 
board Sunday [Nov. 19] broadened its standards for evaluating ballots .•”); Susan 
Fenechio, Republicans, Democrats Wrangle Over Broward’s Dimples , MIAMI 
HERALD, Nov. 24, 2000 (“Canvassing board members said the only rule they were 
following was the order from the Florida Supreme Court, which on Tuesday [Nov. 

21] directed them to determine voter intent on a ballot-by-ballot basis. The court 
set no guidelines, however.”) As in Palm Beach, the indentations considered votes 
in Broward County were tiny • so tiny as to require one judge to use a 
magnifying glass to confirm or dispute their presence. See John F. Harris, High 

9 

Court to Hear Bush Appeal, WASHINGTON Post, Nov. 25, 2000, at A1 (showing 
photograph of wide-eyed election judge peering at ballot through magnifying 
glass). 

Miami-Dade County also historically used a “two-corner” standard for 
counting punch card ballots, but changed the standard to include indented chads 
during that county’s abbreviated hand count. See Don Van Natta, Jr., Counting the 
Vote: The Ballots; Dimpled Votes Are New Hope for Democrats, NEW YORK 
TIMES, Nov. 22, 2000, at A1. 

The New Rule Is Contrary To The Weight of Authority 

The post-election rule changes in three Florida counties are especially 
egregious since they place those jurisdictions at odds with the great weight of 
authority on the handling of punch card ballots. The proper handling of chads was 
the subject of bipartisan agreement in the U.S. House of Representatives in the 
1985 election contest between Frank McCloskey and Rick McIntyre over a 
Congressional election in Indiana. While that agreement recognized the need to 
remove chads in certain circumstances, Congress did not treat chads as votes if 
they were merely indented: 

It was the Recount Director’s recommendation that the auditors be 
instructed to remove any chad • if that chad was hanging by two 
corners or less. It was the Recount Director’s professional opinion 
that a ballot could be in that condition only if the voter unmistakably 

10 

intended to punch that position. The Recount Director’s 
recommendation was agreed to by both Majority and Minority. 
Committee on House Administration, U.S. House of Representatives, Relating to 
Election of A Representative From The Eighth Congressional District of Indiana, 
H.R. Rep. No. 99-58 at 33 (Apr. 29, 1985) (second emphasis added). 

In 1989, there was a statewide recount in the Virginia gubernatorial race. 
Based on official returns, the Democrat, L. Douglas Wilder, appeared to defeat the 
Republican, J. Marshall Coleman, by a margin of 6,854 out of 1,787,424 votes 
cast, a margin of less than one half of one percent. Coleman then petitioned for a 
recount, which Virginia law provides must be conducted under the auspices of a 
special three-judge court. Va. Code § 24.2-801 (formerly § 24.1-249). It is most 
instructive that, although the recount procedures were vigorously contested, the 
counting of indented chads was recognized by all sides as being out of bounds. 
Instead, invoking the bipartisan precedent of the 1985 McCloskey/McIntyre 
Congressional contest, Coleman sought to count as votes only those punch card 
ballots where two or more corners had been detached. Coleman v. Wilder, Cir. Ct. 
City of Richmond (No. N 8541-1) (1989), Petitioner’s Memorandum Regarding 
Recount Procedures, at 25-26. Wilder was unwilling to go even that far, stating: 

A physical recount of the punch card ballots used in this election 
would be fraught with tabulation errors. The ballots are designed with 
the specific intent to be read and counted by machine tabulators, and, 
as a consequence, they are not easily read by the human eye . • [T]he 

11 

counting of votes by such machines is inherently more reliable than a 
manual count. Displacing the machine generated results with the 
results of a hand counting of punch cards would be a giant step away 
from achieving an accurate vote count. 

Id., Respondent’s Memorandum Concerning Recount Procedures, at 25. The 
recount court resolved the issue by denying any manual recount of punch card 
ballots, but allowing them to be re-read by re-programmed and re-tested 
computers. Id., Order Fixing Procedures, at 6, 8. 

A 1994 recount in Ohio also involved the question of how to count 
“bulging” or “indented” chads. The Ohio Secretary of State resolved that question 
by deciding that such chads are not to be treated as votes, adopting instead the 
same bipartisan, “two-corner” rule used in the 1985 Congressional contest. The 
Secretary of State said: 

I believe that the “two corner” rule provides an objective and 
equitable standard to determine voter intent and whether a particular 
vote should be counted. A chad hanging by two or less corners 
indicates that voter’s intent to vote in that the voter attempted to push 
the stylus through the chad and vote for a particular candidate or 
issue. A chad attached by three or all four corners does not 
demonstrate the voter’s intent to vote. “Bulging” or “indented” chads 
fall into the later category since the chad is still attached by all four 
corners. 

Letter from Secretary of State Bob Taft to Lorain and Huron County Boards of 
Elections 6 (Dec. 12, 1994), Secretary Taft then went on to say: 

A bulging or indented chad may result from a voter placing the stylus 
in the hole opposite the candidate’s name and then changing his or her 

12 

mind. It can also occur if the ballot card is bent or in the handling of 
the card by the voter or an election official. Therefore it is mere 
speculation to conclude that a bulging or indented chad indicates voter 
intent. 

Id. 

Other States that have dealt with partially dislodged chads have also stopped 
short of treating dimpled chads as votes. In Duffy v. Mortenson, 497 N.W.2d 437 
(S.D. 1993), the Supreme Court of South Dakota counted a vote registered by a 
chad that was not entirely dislodged. The rule used by the court is also consistent 
with the bipartisan rule followed in the 1985 Congressional contest. 

Two of the four corners of this chad have been broken and one side is 
separated. The area between the perforations is visibly separated and 
the chad is indented. Additionally, when this ballot is held up to the 
light, light clearly passes through the separated side of the partially 
punched chad. Therefore, we presume that this alteration was intended 
as a vote for Mortenson. 

Id. at 440. Such an extensive analysis would have been unnecessary if mere 
indentation were sufficient to register a vote. 

In Escalante v. City of Hermosa Beach, 195 Cal. App. 3d 1009 (1987), the 
California Court of Appeals delivered an opinion that is also at odds with the 
practice of treating dimpled chads as votes. “When the voter is required to punch 
out the cross that corresponds to his choice and he fails to do so • he has failed to 
mark his ballot as required by law and the vote cannot be counted.” Id. at 1018-19 

13 

(emphasis added) (refusing to count ballots not punched in designated voting 
squares). 

In Pullen v. Mulligan, 561 N.E.2d 585 (Ill. 1990), the Supreme Court of 
Illinois adopted a rule more generous than the 1985 Congressional contest, but one 
that still stopped short of counting indentations as votes. The court said that 
requiring a chad to be fully punched out, or to hang on the back of a ballot, would 
set too rigid a standard because “ballots with only perforations on the chad could 
not be regarded as indicating the voter’s intent to vote.” Id. at 614 (emphasis 
added). Of course, “perforate” means more than “indent”; it means “to make a 
hole through.” Webster’s Ninth New Collegiate Dictionary 873 (1991) (emphasis 
added).4 

Apparently at odds with these cases are Massachusetts cases holding that “a 
vote should be recorded for a candidate if the chad is not removed but an 
impression was made on or near it.” Delahunt v. Johnston, 671 N.E.2d 1241 
(Mass. 1996). The precedential value of the Delahunt opinion is reduced, 

4 The court’s ruling in Pullen was the subject of an affidavit filed in the record 
below and stating that Pullen treated dimpled chads as votes. Investigation by the 
Chicago Tribune later revealed that the affidavit was inaccurate. “In fact, in the 
Illinois case, the dented ballots were not counted at all.” Jan Crawford Greenberg 
and Dan Mihalopoulos, Bush Turns to Top U.S. Court, CHICAGO TRIBUNE, Nov. 
23, 2000 at 1. When confronted by these facts, the lawyer who signed the affidavit 
did not contradict the finding, but said that “memories fade” and that he “couldn’t 
remember the details.” Id. 

14 

however, by several factors not present in the current election. The contest 
between Delahunt and Johnston was the only one on the ballot and the election was 
held during a “severe thunderstorm,” which indicated that putative voters would 
not have ventured to the polls motivated by anything less than a strong intent to 
cast a vote in that race. In light of these circumstances, it was unlikely that a large 
number of voters would have gone to the polls, partially indented the chad, and 
then decided not to vote. The court cited “the large number of ballots with 
discernible impressions” as one of the conditions leading to its decision to count 
indented chads. Delahunt, 671 N.E.2d at 1243. In addition, it was asserted that the 
ballots had sustained water damage, which rendered their puncture difficult and 
thus led to undecisive markings. See John Mintz, Most States Don’ 
t Count 
Dimpled Ballots, WASHINGTON POST, Nov. 24, 2000, at A1.5 In any event, 
Massachusetts’ treatment of indented chads is out of step with the rest of the 
country and cannot absolve the three Florida counties from the unlawfulness of 
their post-election change in the rules. 

Judicial practice among the states is mirrored by legislative practice. Almost 
universally, states statutes that have addressed the issue of indented chads refuse to 
treat them as votes. For example, Indiana law expressly says that such ballots do 

5 But see McCavitt v. Registrars of Voters of Brockton, 434 N.E.2d 620 (Mass. 
1982). 

15 

not represent votes: “A chad that has been indented, but not in any way separated 
from the remainder of the card, may not be counted as a vote for a candidate or on 
a public question.” Ind. Code Ann. § 3-12-1-9.5(d) (emphasis added). Michigan 
law says: “If the electronic voting system requires that the elector cast a vote by 
punching out a hole in a ballot, the vote shall not be considered valid unless the 
portion of the ballot designated as a voting position is completely removed or is 
hanging by 1 or 2 corners or the equivalent.” Mich. Comp. Laws § 168.799a. 

Some States require election officials to remove chads from ballots when 
they are “loose” or “partly dislodged” or “hanging by 1 or 2 corners.” The purpose 
of removing chads is to permit the electronic voting equipment to count the vote 
without interference. By so specifying the circumstances when chads are to be 
removed, these States imply that chads not meeting these criteria – e.g. chads that 
are merely indented – are not to be removed and do not indicate votes. For 
example: 

Hawaii: Election official allowed to blow on the punchcard or run fingers along 
it to find “an incompletely detached chad.” Code of Hawaii Rules § 2-53-16(d). 

Illinois: “Chad” is defined as “that portion of a ballot card which has been 
dislodged or partly dislodged from the ballot card by a voter when recording a 
vote” and requiring that such a chad be “removed from ballot cards prior to their 
processing.” Ill. Admin. Code tit. 26, § 207.60 (emphasis added). 

16 

Massachusetts: “The inspection team shall also riffle the cards to remove any 
loose or hanging chads.” Mass. Regs. Code tit. 950, § 54.07(6)(a) (emphasis 
added). 

Michigan: “When a chad is found attached to the card by 1 or 2 corners, the 
chad shall be removed by the inspector and the ballot card placed with the other 
ballot cards to be tabulated.” Mich. Admin. Code § 168.783(2)(a), emphasis added. 
Michigan also defines “valid punch” as “a punch of a ballot card such that the chad 
is completely removed or is hanging by 1 or 2 corners.” Mich. Admin. Code § 
168.771(1)(h) (emphasis added). 

Montana: Description of inspection board’s duties includes “hanging chad – 
remove chad.” Mont. Admin. R. § 44.3.1744(1)(c)(ii) (emphasis added). 

Tennessee: Ballot box judge must be “satisfied that all hanging chads [cards] 
are removed” before instructing voter to place ballot in box. Tenn. Comp. R. & 
Regs. § 1360-2-7.07(2). 

Wyoming: “Loose chad still attached to the back of any ballot cards shall be 
removed.” Code of Wyo. Rules 002-040-006 § 17(c)(i). 

While some States have adopted a less rigorous standard, none of the states 
that have statutorily addressed the issue treat indented chads as votes without 
something more. For example, a Texas statute provides a specific standard that 
must be used when determining whether an indentation can be considered evidence 

17 

of intent. The statute provides, in pertinent part, that a vote on a ballot cannot be 
counted unless “an indentation on the chad from the stylus or other object is 
present and indicates a clearly ascertainable intent of the voter to vote.” Tex. 
Elec. Code Ann. § 127.130(d)(3) (emphasis added) 6. By contrast, the counting of 
dimpled chads in Florida has no articulable standard and is reminiscent of Alice-in- 
Wonderland. “It’s not objectively subjective or subjectively objective, but I think 
it’s somewhere in the middle. It’s not a whim.” Shari Rudavsky, Board Set To 
Tackle The Undervotes, MIAMI HERALD, Nov. 23, 2000, at 5C (quoting Chairman 
of the Broward County Canvassing Board.) The Amici do not contest the right of 
the Florida legislature to enact a statute • before an election • similar to the one 
adopted by Texas. But, the Amici do take issue with (i) the local canvassing 
boards’ post-election rule change on counting indented chads, and (ii) the Florida 
Supreme Court’s post-election abolition of the statutory seven day deadline that 
allowed and encouraged the free-wheeling counting of indented chads to proceed. 

6 Other states’ statutes provide some guidance on how to count imperfectly cast 
punchcard ballots, but do not specifically deal with the question of indented chads. 
Colorado, for example, provides that an improperly marked ballot “shall not be 
counted . . . if for any reason it is impossible to determine the elector’s choice of 
candidate or vote concerning the ballot issue. A defective or an incomplete mark or 
punch on any ballot in a proper place shall be counted if no other mark or punch is 
on the ballot indicating an intention to vote for some other candidate or ballot 
issue.” Colo. Rev. Stat. § 1-7-508(2). The Colorado statutes do not define what 
constitutes a “defective or incomplete” punch, and the caselaw does not elaborate. 

18 

In sum, the great weight of authority condemns the newly minted practice of 
treating dimpled chads as votes. This practice, while inherently suspect, might 
nevertheless be lawful if it had been adopted before election day. But, by 
abandoning the rules in the middle of an election recount, the Florida counties 
have violated the Due Process Clause of the Fourteenth Amendment as well as 3 
U.S.C. 5. By implicitly sanctioning an abandonment of the rules • and by 
artificially distorting election deadlines to allow the new, unlawful rules to take 
effect • the Florida Supreme Court has violated these same principles of federal 
law. Or, as one commentator recently observed, “A basic understanding of fair 
play • not to mention respect for the law • presumes that you don’t arbitrarily 
change the rules mid-game, altering deadlines or guessing at voter intent.” 
Kathleen Parker, Rules Don’ 
t Count in Vote Recount, RICHMOND TIMES DISPATCH, 
NOV. 22, 2000, at A17. 

CONCLUSION 

The decision of the Florida Supreme Court should be reversed. 

Respectfully submitted 
COMMONWEALTH OF VIRGINIA 
STATE OF SOUTH CAROLINA AND 
STATE OF NEBRASKA 

By: _______________________ 
William Henry Hurd 

19 

MARK L. EARLEY 

CHARLIE CONDON 

Attorney General of Virginia 
Attorney General of South Carolina 

P. O. Box 11549 

RANDOLPH A. BEALES 
Columbia, South Carolina 29211 
Chief Deputy Attorney General 
(803) 734-3970 

WILLIAM HENRY HURD 
DON STENBERG 

Solicitor General 

Attorney General of Nebraska 

Counsel of Record 

2115 State Capitol 

Lincoln, NE 68509 

JUDITH WILLIAMS JAGDMANN 
Deputy Attorney General 
SIRAN S. FAULDERS 
MAUREEN RILEY MATSEN 
Senior Assistant Attorneys General 
ELEANOR ANNE CHESNEY 
ANTHONY P. MEREDITH 
VALERIE L. MYERS 
Assistant Attorneys General 

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