In the Supreme Court of the United States 

BUSH, George W. 

v. 
PALM BEACH COUNTY CANVASSING BOARD, ET AL 
No. 00-836 

Brief Amicus Curiae on 
Behalf of 
DISENFRANCHISED VOTERS IN THE USA 
Brief in Support of Neither Party 
Affirming in Part the Opinion of the Florida Supreme Court and 
Seeking Equitable Relief 

Filed Under Rule 37.6 of the United States Supreme Court 
Nov. 28, 2000 

EXPEDITED BRIEF ON 81/2 by 11 paper, white cover (Final version to be delivered to the 
Clerk of the US Supreme Court with appropriate colored cover on or before 4p.m. Tuesday 
December 5, 2000) 

Attorney for Amicus Curiae 
Ilise L. Feitshans JD and ScM 
Counsel of Record 
Adjunct Faculty Cornell University ILR and 
The George Washington University School of Public Health 
Post Office Box 2233 Haddonfield NJ USA 08033 
856 428 0605 fax 856 428 4198 
ilise@prodigy.net 

NOTE: THIS BRIEF WAS INITIALLY FILED ON BEHALF OF CHARLES WEILER, 
MARYANN HUNSBURGER AND PATRICK McFADDEN, citizens who voted in the 
November 2000 Election for the 43 

rd President of the United States. By leave of these Amici 
and of the Clerk of the Supreme Court of the United States, this brief is hereby 
Consolidated with Petitions Pro Se by two voters who were unaware of the Rules of 
Procedure of the US Supreme Court of the United States and would have otherwise been 
without representation in this matter even though they have spent time and effort writing 
briefs for this case on their own. Those two voters, Gregory Apelain and Justin A. Frank, 
have joined the original Amici. Their comments essentially parallel the view of the original 
Amici and therefore will appear as Exhibit 1 and Exhibit 2 of the final version of this brief. 

1 

Brief Amicus Curiae on 
Behalf of DISENFRANCHISED VOTERS IN THE USA 
Brief in Support of Neither Party 
Affirming in Part the Opinion of the Florida Supreme Court 
and Seeking Equitable Relief 

Table of Contents 

Table of Authorities and Cases Cited 

4 

STATEMENT OF INTEREST BY AMICUS 
6 

SUMMARY OF THE ARGUMENT 

7 

I. RULE 37.6 NOTIFICATION 

7 

II QUESTIONS PRESENTED BY THIS COURT 
7/8 

III.STATEMENT OF THE CASE 

8 

A. POTENTIAL UNCONSTITUTIONAL PRACTICES IN FLORIDA IMPACT 
8 

THE ENTIRE NATION 

B. STRICT SCRUTINY IS WARRANTED TO PRESERVE THE FRANCHISE 

10 

IV QUESTIONS PRESENTED TO THE COURT 
11 

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

A. JUDICAL REVIEW, ALTHOUGH RETROSPECTIVE IS NOT A 
11 

RETROACTIVE USE OF THE LAW. 

B. THE FLORIDA COURT RULED NARROWLY, CONSISTENT WITH 

12 

THE UNITED STATES CONSTITUTION AND THE VOTING RIGHTS 
ACT OF 1965 AND THE OBLIGATION OF COURTS TO RESOLVE POST-ELECTION 
DISPUTES. 

C. VOTING RIGHTS OF ALL VOTERS ARE IMPACTED BY THESE 14 

2 

CIRCUMSTANCES REQUIRING A COMPLETE RECOUNT OF ALL BALLOTS 
OR A NEW ELECTION: 

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

15 

A. THE UNITED STATES CONSTITUTION ALLOWS LEEWEAY TO THE 
15 

STATES BUT DOES NOT ALLOW OR ENCOURAGE LEGISLATORS TO 
SUBSTITUTE THEIR WISHES OR DESIRES FOR THE WILL OF THE PEOPLE 

B. THE WILL OF THE PEOPLE OF FLORIDA IS PRESENTLY UNKNOWN 
16 

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

17 
. 
UNCONSTITUTIONAL ELECTION LAWS REQUIRE REMEDIES SUCH AS 
17 

RECOUNT OR A NEW ELECTION 

CONCLUSION: 17/18 
UNCONSTITUTIONAL LAWS CANNOT BE SUPPLANTED BY THE 
ARBITRARY SELECTION OF ELECTORS BY LEGISLATORS AND REQUIRE A 
FULL RECOUNT OF ALL BALLOTS OR A NEW ELECTION 

EXHIBITS: 
1 and 2 AWAITING COPY FROM AUTHORS 

3 

Brief Amicus Curiae on 
Behalf of DISENFRANCHISED VOTERS IN THE USA 
Brief in Support of Neither Party 
Affirming in Part the Opinion of the Florida Supreme Court 
and Seeking Equitable Relief 

Table of Authorities and Cases Cited 

CASES CITED: 

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

FLADELL and ALBERTA MCCARTHY and LILLIAN GAINES, Plaintiffs. vs. PALM 
BEACH COUNTY CANVASSING BOARD, as constituted by County Court Judge Charles 
Burton; Supervisor of Elections Theresa LePore; and County Commissioner Carol Roberts; 
GEORGE W. BUSH, DICK CHENEY, AL GORE and JOE LIEBERMAN, Defendants. 
CASE NO. CL '00 10965 Florida Circuit Court, Fifteenth Judicial Circuit, Palm Beach 
County. November 8, 2000 

Kramer v Union Free School District No. 125 395 US 621 (1969). 

League of United Latin American Citizens (LULAC) v. North East Independent School 
Dist., W.D.Tex.1995, 903 F.Supp. 1071.) 

Marbury v. Madison 1 Cranch 137, 2 L.Ed. 60 (1803) 

McCulloch v Maryland 17 US (4 Wheat.) 316, 421 (1819) 

McDERMOTT, et al , CANVASSING BOARD OF VOLUSIA COUNTY, FLORIDA, 
Plaintiffs, v. HONORABLE KATHERINE HARRIS, 

MILLER, a registered voter of the State of Florida Plaintiff, v. KATHERINE HARRIS, 
Secretary of State, et. Al. DOCKET-NUMBER: 00-9004-CIV United States District Court, 
S.D. Florida. November 8, 2000) (withdrawn) 

National Ass'n for Advancement of Colored People, Inc. (NAACP) v. City of Niagara Falls, 
N.Y., W.D.N.Y.1994, 913 F.Supp. 722, affirmed 65 F.3d 1002.) 

SIEGEL, et al., Florida REGISTERED VOTERS, PLAINTIFFS/APPELLANTS, and 
GOVERNOR GEORGE W. BUSH and DICK CHENEY, et.al. v. THERESA LePORE, et. 
Al. COUNTY CANVASSING BOARDS of PALM BEACH, MIAMI-DADE, BROWARD 
and VOLUSIA COUNTIES, 00-15981 United States Court of Appeals, Eleventh Circuit. 
November 15, 2000; 

South Carolina v Katzenbach 383 US 301, 314-15 

4 

. 

STATUTES AND U.S. CONSTITUTIONAL PROVISIONS 
Civil Rights Act 42 U.S.C. 1983 

United States Constitution: Article IV: Section 1. 

United States Constitution Fourteenth Amendment 

United States Constitution Due Process Clause or 3 U.S.C. s 5 

Voting Rights Act of 1965 (Amended 1970) 42 U.S.C. 1973 

OTHER AUTHORITIES: 

Brief of Petitioner George W. Bush Jr. Bush v. Palm Beach County Board of Cavassers 
United States Supreme Court 00-836 November 22, 2000 

Laurence Tribe, AMERICAN CONSTITUTIONAL LAW “RIGHTS OF POLITICAL 
PARTICIPATION” Second Edition, The Foundation Press NY at 1086-87] 

5 

In the Supreme Court of the United States 
BUSH, George W. 

v. 
PALM BEACH COUNTY CANVASSING BOARD, ET AL 
No. 00-836 
Brief Amicus Curiae on 
Behalf of 
DISENFRANCHISED VOTERS IN THE USA 
Brief in Support of Neither Party 
Affirming in Part the Opinion of the Florida Supreme Court and Seeking Equitable Relief 
Filed Under Rule 37.6 of the United States Supreme Court 

Nov. 28, 2000 

Attorney for Amicus Curiae 
Ilise Levy Feitshans JD and ScM 
Counsel of Record 
Adjunct Faculty Cornell University ILR and 
The George Washington University School of Public Health 
Post Office Box 2233 
Haddonfield NJ USA 08033 
856 428 0605 fax 856 428 4198 
ilise@prodigy.net 

STATEMENT OF INTEREST BY AMICUS 

Charles J. Weiler is a voter from the State of New Jersey. Mr Weiler has been an American 
citizen since he was born, and served in the US Peace Corps. Mr Weiler has been a registered 
voter since 1972. He is a self-declared “Independent” voter who does not regularly associate with 
any particular political party affiliation. Maryann B. Hunsberger, a voter from the State of New 
Jersey, has been an American citizen since she was born, and has been a registered voter since 
1976. She is a disabled American. Patrick J. McFadden, is a voter from Pennsylvania, and has 
been an American citizen since he was born; he has been a registered voter since 1969. Gregory 
Apelain is a voter from the State of New Mexico. Mr. Apelian has been an American citizen since 
he was born. Mr. Apelian has been a registered voter since 1980. Justin A. Frank, MD, is a voter 
from the District of Columbia, (Washington, D.C.). He has been an American citizen since he was 
born and has been a registered voter since 1964. 

Mr. Weiler and similarly situated US Citizens who voted in the State of New Jersey and other 
states in the United States during the national presidential election that was held on November 7, 
2000 have an interest in preserving his franchise and that of other voters. Mr. Weiler and other 
similarly situated voters run the risk of having their vote diluted or disenfranchised by any or all 
unconstitutional Florida State Electoral laws or unconstitutional practices under Florida Election 
laws that obfuscate their votes so that the will of the people cannot be heard. 

6 

SUMMARY OF THE ARGUMENT 

A fundamental precept of democracy embraces recourse to the courts after events have occurred. 
A fundamental precept of asking the courts to solve problems retrospectively is the essence of 
Judicial Review, which often requires crafting a new rule to fix a pre-existing problem after the 
problem has become manifest, but in the process also filling the void in the law with a new rule in 
order to solve the problem at bar. The case at bar involves the decision of the Florida Supreme 
Court solving a problem by crafting a rule as needed, but not in a prohibited “retroactive” manner. 
The problem it attempted to solve threatens to disenfranchise voters throughout the United States 
of America who voted in the national election for the 43 

rd President of the United States, if the 
laws in Florida are found to be unconstitutional or if the electoral process in Florida as applied in 
that election cannot withstand strict scrutiny as the sacrosanct right to vote requires under the 
United States Constitution. If the Florida law can be repaired as the Florida Supreme Court 
attempted, there should be a statewide recount of votes. If the law is so flawed that it must be 
discarded, there should be a new election as a consequence of these flaws. The legislature, 
although authorized under the US Constitution to select electors, cannot supplant the will and 
voice of the people if that voice as expressed through voting has not been clearly heard. The 
Florida legislature must therefore await such recounted ballots or new election before it can 
instruct or select its electors. 

I. RULE 37.6 NOTIFICATION 

All parties to this case have granted a blanket consent for Amici. Note: this brief was initially 
filed on behalf of CHARLES WEILER, MARYANN HUNSBURGER AND PATRICK 
McFADDEN, citizens who voted in the November 2000 Election for the 43 

rd President of the 
United States. By leave of these Amici and of the Clerk of the Supreme Court of the United 
States, this brief is hereby Consolidated with Petitions Pro Se by two voters who were unaware 
of the Rules of Procedure of the US Supreme Court of the United States and would have 
otherwise been without representation in this matter even though they have spent time and effort 
writing briefs for this case on their own. Those two voters, Gregory Apelain and Justin A. Frank, 
have joined the original Amici. Their comments essentially parallel the view of the original Amici 
and therefore will appear as Exhibit 1, (Gregory Apelian) and Exhibit 2 (Justin Frank) in the final 
version of this brief. 

II QUESTIONS PRESENTED BY THIS COURT 

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

2. Whether the state court's decision, which cannot be reconciled with state statutes enacted 
before the election was held, is inconsistent with Article II, Section 1, clause 2 of the 

7 

Constitution, which provides that electors shall be appointed by each State "in such Manner as the 
Legislature thereof may direct." 

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

III. STATEMENT OF THE CASE 

A. POTENTIAL UNCONSTITUTIONAL PRACTICES IN FLORIDA IMPACT THE 
ENTIRE NATION 

The United States Constitution (Article IV: Section 1.) requires "Full faith and credit shall be 
given in each state to the public acts, records, and judicial proceedings of every other state. And 
the Congress may by general laws prescribe the manner in which such acts, records, and 
proceedings shall be proved, and the relief thereof." [See also: Exhibit 1 by Gregory Apelian] 

The national election of President and Vice President transcends state boundaries and has 
implications beyond local (State) elections. Upholding the election laws faithfully executed in 
other States of the United States requires under the United States Constitution, as a social 
contract, that each State create through its legislature and implement through its own means 
lawfully impartial and fair elections. That social contract is codified in Article IV of the United 
States Constitution, the "full faith and credit" clause. 

While the process may be shaped by the legislature of each State in part, that process is subject to 
judicial review to correct unforseen problems or irregularities, and the integrity of the entire 
nation election rests upon the good faith belief that each State will respect the other by refraining 
from improper practices. The appearance of impropriety in an election harms the integrity of the 
outcome of the whole and therefore is a matter of constitutional and national concern. 
Furthermore, this Court has consistently given matters regarding the paramount right to vote strict 
scrutiny. Democracy so requires. The concept of Judicial Review, endemic in an appreciation of 
all the workings of this Court and the Courts of the States of the United States is a long-cherished 
principle of democracy, first pronounced by this Court nearly two hundred years ago, Marbury v. 
Madison 1 Cranch 137, 2 L.Ed. 60 (1803), which asked questions that would be equally apt 
before the Florida Supreme Court this year, “2d.If he has a right, and that right has been violated, 
doo the laws of this country afford him a remedy? [and] 3d. If they do afford him a remedy, is it a 
mandamus issuing from this Court?” 

The Marbury Court exhibited prescience again, regarding events in Florida recent to us but 
centuries after it wrote its opinion, “It is not the office of the person to whom the writ is directed, 
but the nature of the thing to be done that the propriety or impropriety of issuing a mandamus, is 
to be determined”. 

As stated by Petitioner (p.4)“The choosing of presidential electors is a matter of great national 
importance and interest.”‘As this Court stated in Anderson v. Celebrezze, 460 U.S. 780 (1983), 
[I]n the context of a Presidential election, state-imposed restrictions implicate a uniquely 
important national interest. For the President and Vice President of the United States are the only 

8 

elected officials who represent all the voters in the Nation. Moreover, the impact of the votes cast 
in each State is affected by the votes cast for the various candidates in other States.’Id. at 794-95. 
As cited by Petitioner. Furthermore, one need not have a special interest or stake in the outcome 
of a particular election in order to have a voice as a voter in that election (Kramer v Union Free 
School District No. 125 395 US 621 (1969). Under vigorous equal protection scrutiny, this Court 
has suggested that the fundamental character of the right to vote is crucial to ensuring that elected 
officials fairly represent the electorate. [Laurence Tribe, AMERICAN CONSTITUTIONAL 
LAW “RIGHTS OF POLITICAL PARTICIPATION” Second Edition, The Foundation Press NY 
at 1086-87] 

One unprecedented aspect of the recent election in Florida is that it has produced a remarkable 
amount of litigation, characterized by the Petitioner as “chaos”. Without addressing the merits of 
these cases, the mere existence of such litigation demonstrates that the existing Florida laws are, if 
not unconstitutional, then problematic at best. Dozens of cases have been filed, only a small 
sample of which are cited here for brevity. (See: McDERMOTT, et al , CANVASSING BOARD 
OF VOLUSIA COUNTY, FLORIDA, Plaintiffs, v. HONORABLE KATHERINE HARRIS, as 
SECRETARY OF STATE, STATE OF FLORIDA, and HONORABLE KATHERINE HARRIS, 
HONORABLE BOB CRAWFORD, HONORABLE LAURENCE C. ROBERTS, as the 
ELECTIONS CANVASSING COMMISSION, Defendants requesting extended time from the 
Secretary of State of Florida to count votes; See also: MILTON H. MILLER, a registered voter of 
the State of Florida Plaintiff, v. KATHERINE HARRIS, Secretary of State, Chief Election 
Officer, THERESA LePORE. Supervisor of Elections for Palm Beach County, Florida, and 
FLORIDA DEPT OF STATE, DIVISION OF ELECTIONS Defendant, seeking EMERGENCY 
MOTION FOR INJUCTIVE RELIEF DOCKET-NUMBER: 00-9004-CIV United States District 
Court, S.D. Florida. November 8, 2000) 

In Miller V,. Harris, above, (withdrawn) Plaintiff voted for a presidential candidate but was 
unsure of who he voted for as a result of the “confusing and misleading ballot” See also: SIEGEL, 
et al., Florida REGISTERED VOTERS, PLAINTIFFS/APPELLANTS, and GOVERNOR 
GEORGE W. BUSH and DICK CHENEY, as CANDIDATES for PRESIDENT and VICE 
PRESIDENT of the UNITED STATES OF AMERICA, Plaintiffs-Appellants v. THERESA 
LePORE, et. Al. COUNTY CANVASSING BOARDS of PALM BEACH, MIAMI-DADE, 
BROWARD and VOLUSIA COUNTIES, Respectively, Defendants-Appellees. 00-15981 United 
States Court of Appeals, Eleventh Circuit. November 15, 2000; See also ANDRE FLADELL and 
ALBERTA MCCARTHY and LILLIAN GAINES, Plaintiffs. vs. PALM BEACH COUNTY 
CANVASSING BOARD, as constituted by County Court Judge Charles Burton; Supervisor of 
Elections Theresa LePore; and County Commissioner Carol Roberts; GEORGE W. BUSH, DICK 
CHENEY, AL GORE and JOE LIEBERMAN, Defendants. CASE NO. CL '00 10965 Florida 
Circuit Court, Fifteenth Judicial Circuit, Palm Beach County. November 8, 2000 which states in 
its pleadings: "all of the candidates for the Presidential election were listed on two facing pages of 
the ballot booklet that is attached to each voting machine. The punch holes for each candidate 
were in a single column that ran between the facing pages.. The names of independent (non- 
Democratic and non-Republican candidates such as Pat Buchanan) and the punch holes for such 
candidates were placed adjacent to the names of the Democratic Candidates, Al Gore and Joe 
Lieberman. . As a result, many voters, and in particular, many senior citizens, intending to vote 

9 

for Al Gore and Joe Lieberman, mistakenly punched the punch hole on the ballot card designated 
for Pat Buchanan and Ezola Foster (hole #2).[That same document continues]”In addition, the 
holes in the ballot cards for numbers 4 (Gore and Lieberman) and 5 (Pat Buchannan and Ezola 
Foster) were directly adjacent to the section of the ballot listing the Democratic candidates (Gore 
and Lieberman). As a result, many voters, and in particular, many senior citizens, intending to 
vote for Al Gore and Joe Lieberman punched punch hole numbers 4 and 5 in the mistaken belief 
that such numbers referred to a vote for Al Gore and Joe Lieberman. It has been reported in the 
Palm Beach Post that in Palm Beach County Reform Candidates (Pat Buchannan and Ezola 
Foster) received 3,040 votes.”). Despite this morass, Florida law does clearly require the counties 
and if necessary, reviewing courts "to determine the voter's intent." Fla. Stat. s 102.166(7) 
(emphasis added). The totality of the problems described in good faith in these and other 
pleadings silence the voice of the people in Florida so that the true intentions of the voters 
remains unknown. 

B. STRICT SCRUTINY IS WARRANTED TO PRESERVE THE FRANCHISE 

When viewed in the aggregate, the citizen cases filed in good faith (listed above) raise a suspicion 
of impropriety that merits strict scrutiny when the fundamental right to vote is at stake, especially 
when the election involved is a national election for the President of the United States. 

This situation was further complicated on November 26, 2000 when, pursuant to the first of two 
deadlines made available to the Florida Secretary of State in her discretion for accepting final vote 
tallies for certification, the Secretary of State accepted a combination of original tallies from some 
counties, hand counted-recount tallies with corrections from other counties, and rejected a partial 
recount from yet another county which requested additional time to complete its task, even though 
that same county noted that its work would be completed before the second of the court- 
established deadlines. It has also been reported in news media that there may be anywhere from 
ten thousand to twenty thousand uncounted votes across various Florida counties. 

The Voting 
Rights Act was designed to protect every citizen’s vote from precisely such errors. Also, the law 
is designed top prevent the dilution or usurpation of the votes from blacks, other minorities or 
other suspect classifications in a pattern, “had all people cast ballots that could be counted along 
the same lines as their neighbors, Mr. Gore would have gained nearly 7000 (seven thousand) 
votes. [See New York times, Wednesday Nov 29 2000 “Racial Pattern In Demographics of 
Error-Prone Ballots” A25 by Josh Barbanel and Ford Fessenden] The same article previously 
noted that, “The impact of these differences on the outcome will never be known but their 
potential magnitude is evident in Miami-Dade County, where predominantly black precincts saw 
their votes thrown out at twice the rate as Hispanic precincts and nearly four times the rate of 
white precincts. In all, one out of eleven ballots in predominantly black precincts were rejected, a 
total of 9,904 (nine thousand nine hundred and four).” Id., New York Times. [See also: Exhibit 2 
by Justin A. Frank, MD] 

The Voting Rights Act of 1970 was enacted to enforce the Fifteenth Amendment which provides 
that the right of citizens to vote shall not be denied or abridged by the United States or by any 
state on count of race, color, or previous condition of servitude. (National Ass'n for Advancement 
of Colored People, Inc. (NAACP) v. City of Niagara Falls, N.Y., W.D.N.Y.1994, 913 F.Supp. 

10 

722, affirmed 65 F.3d 1002.) 

Thus, the “standardless” recounting in “chaos’’about which the Petitioner initially complained 
was actually compounded by partisan refusal to accept partial tallies and await a later, but no less 
convenient deadline before certification [See Petitioner’s Brief]. Consequently, whether by 
intention or by inherent flaws in the Florida Election laws and its attendant process, the Certified 
votes for Florida at the time of this writing are an incomplete admixture of several inconsistent 
tallying methods and cannot accurately reflect the will of the people. Such problems, regardless of 
their cause or their precise number, rise to such a level of magnitude that they encompass the 
entire voting process and have undermined the integrity of the entire nation’s votes, threatening to 
abridge the Fourteenth Amendment due process rights of all voting citizens in the United States. 

The more voters that are disenfranchised in Florida and in the nation, the more we give up our 
democracy. The good faith obligation of the States to pass and uphold fair election laws is a part 
of the social contract between the States of the United States that is a fundamental bedrock of our 
nation’s union. Under the United States Constitution Article IV, full faith and credit for the acts of 
the respective States requires no less than an honorable and honored mutual respect, exhibited in 
part through fair and accurate election laws and attendant electoral process. To be meaningful, 
such requirements for full faith and credit necessarily include keeping “such acts, records, and 
proceedings” of elections for President and Vice President of the United States. Furthermore, the 
failure of any one State to uphold its portion of the social contract that requires fair, accurate and 
objective counting (or recounting) of ballots is a breach of the social contract between the States 
of the United States as expressed and implied in the US Constitution. Such a breach of the social 
contract taints the entirety of any national Presidential election, thereby disenfranchising all 
citizens who voted in said national election. 

IV QUESTIONS PRESENTED TO THE COURT 

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

A. JUDICIAL REVIEW, ALTHOUGH RETROSPECTIVE IS NOT A RETROACTIVE 
USE OF THE LAW. 

Petitioner mischaracterizes the decision of the Florida Supreme Court as “retroactive” and 
perhaps even prohibited “ex post facto” laws (See Petitioner’s Brief) . Yet, the logic of a situation 
rife with inconsistencies in the written legislative statute mandates that a court review the election 
laws as applied to ballots cast by voters. Such review can only occur after the electoral process 
has revealed its embedded errors, and therefore by definition must be a post-hoc review. To be 
meaningful, the court must be able to rule without being considered to have written prescribed 
retroactive or ex post facto rules. The Constitutional principle of Judicial Review has long been 
known to this Court, first articulated nearly two hundred years ago in Marbury v. Madison 1 
Cranch 137, 2 L.Ed 60 (1803). 

11 

Petitioner has noted, “Given the national significance of the Florida election results, it is essential 
that the counting of ballots be conducted in a fair and consistent manner in accordance with 
established Florida law”. Petitioner fails to point out that the system, absent judicial intervention, 
had reached an impasse because of the legislature’s failure to provide clear deadlines for 
beginning or completing requested or mandatory recounts of ballots. The Florida Supreme Court 
crafted a deadline to save the statute. In Marbury v. Madison 1 Cranch 137, 2 L.Ed. 60 
(1803), whose remarkable prescience speaks to the issues at Bar, [supra] this Court further 
opined, “Those then who controvert the principle that the Constitution is to be considered, in 
court, as paramount law, are reduced to the necessity of maintaining that courts must close their 
eyes on the constitution and see only the law”. 

If anything, the more convenient was also the later deadline: Tallies accepted at the first deadline 
required the Secretary of State on Sunday November 26 2000 to open her offices, which would 
otherwise be closed for the National Holiday of the Thanksgiving weekend; the second deadline 
was Monday morning at 9a.m. 

B. THE FLORIDA COURT RULED NARROWLY, CONSISTENT WITH THE UNITED 
STATES CONSTITUTION AND THE VOTING RIGHTS ACT OF 1965 AND THE 
OBLIGATION OF COURTS TO RESOLVE POST-ELECTION DISPUTES 

To the extent that errors in the Florida electoral process impinge on the franchise within 
and without the State, the Florida Supreme Court surgically attempted to reconstruct the broken 
fragments of the statute in order revive an otherwise lifeless will of the people as it was laid 
before its bar. 

To rectify this situation requires either a statewide recount with appropriate guidelines set 
forth by this Court, or a new election under new laws. The Florida Supreme Court held that the 
right to vote is the paramount right and therefore read savings measures into the text of the 
otherwise unworkable statute that governed the Florida election for the 43 

rd President of the 
United States. The alternative would have required the voters to hold a new election without clear 
rules to govern the election,. 

Absent a special session of the Florida legislature to craft such rules six or more days 
prior to the election itself. The Florida Supreme Court articulated again the principle often 
expressed by this Court, that the primacy of voting and respect for the exercise of the franchise is 
a fundamental right to all citizens. The court reaffirmed that voting is the paramount right of the 
people; one that could not be supplanted or transgressed by hyper technical attention to deadlines, 
if the price of those deadlines cost voters their rights. Marbury v. Madison 1 Cranch 137, 2 L.Ed. 
60 (1803), “It is emphatically the province and duty of the judicial department n to say what the 
law is”. 

Petitioner has erroneously claimed “By retroactively changing the law in Florida through judicial 
intervention, the Supreme Court of Florida's decision preventing the Secretary of State of Florida 
from exercising her legislatively conferred authority to perform the act of certification that would 
complete the electoral process in Florida has added to that angst and has strayed from established 

12 

federal constitutional and statutory law.” 

If anything, however, the Florida court ruled too narrowly and with too little retrospective 
oversight, leaving to the discretion of the counties the methods for recounting votes and a too- 
small window of opportunity for recounting by hand the votes in densely populated counties, who 
later abandoned their recount efforts. To the extent that the Petitioner complains there are no 
standards, the court wisely attempted to defer to counties to allow them their traditional freely 
chosen methods, in a reading of the very clause that Petitioner cites for the argument that the 
States shall choose electors “in such Manner as the Legislature thereof may direct”. In essence, 
the Petitioner’s suggested reading of the United States Constitution is counter-intuitive; 
restraining the counties from determining the methods of tallying the ballots from their own 
voters while giving the legislature unbridled discretion regarding the selection of electors. Neither 
of these approaches can be tolerated if they fail to pass constitutional muster under the strict 
scrutiny afforded the right to vote. 

Petitioner continues: “The manual recount underway in certain Florida counties is 
unconstitutional because it is being conducted in the absence of meaningful objective standards.” 
A recount cannot, by its nature be, unconstitutional. The methods written by the legislature to 
achieve the tabulation and recording of votes can, however, be so flawed that the system is 
unconstitutional as applied in a given case. We believe that in this case, the Florida law has been 
applied in a manner that is unconstitutional and must be rectified or in the alternative, if it is 
indeed beyond repair, then new rules must be set forth by this Court or the Florida legislature in a 
timely manner with a new election by Florida voters for the 43rd President of the United States. 

The lack of adequate timetables in the Florida Electoral law for candidates to request recounts, 
and for recounts to be completed; the ambiguity within the Florida statute that did not reveal a 
specific preference for hand counted-ballots or machine counted ballots for the purposes of 
recounting; and the absence of any clarifying instruction on a statewide basis to determine how 
electoral ballots are to be counted are not necessarily fatal to the statute in itself if any one of 
these problems could be viewed in isolation. 

The totality of these peculiar circumstances, however, makes it so very difficult to sort out the 
precise nature of the problems that questions can be answered and problems can be corrected. 
There remain the lingering doubts raised by improperly drafted ballots that were not legible to 
voters; improper tallying by a hodgepodge of methods with so-called "standardless" procedures; 
(See Petitioner’s Brief, in several instances) defects in the availability and accessibility of voting 
places themselves. Media accounts suggest that these irregularities also have occurred in great 
proportion in areas inhabited by blacks, minorities and certain ethnic groups, whose voting rights 
enjoy special protection under the Fourteenth and Fifteenth Amendments of the United States 
Constitution, as implemented Congress in the Voting Rights Act and upheld by this Court in 
previous cases. The aim of the Voting Rights Act is to prevent political bodies from implementing 
election systems or practices which Act, whether intentionally or not, to minimize, cancel or 
dilute the voting strength or political effectiveness of minority groups. (League of United Latin 
American Citizens (LULAC) v. North East Independent School Dist., W.D.Tex.1995, 903 
F.Supp. 1071.) Such discriminatory consequences, whether intended or not, would also raise 

13 

concern that the entire election was tainted by potential violations of the Voting Rights Act. 

Thus, the post-election "judicial limitations” in this case that concern the Petitioner were 
designed to foster, rather than burden, constitutional due process. The Florida Supreme Court 
carefully reasoned in order to save a defective election process, in order to avoid the very 
confusion that confronts our nation today. 

In this regard, the Florida Supreme Court should not be reversed for having been too deferential 
to a statute that was in fact defective. The election laws, and not the written opinion of the 
reviewing court that attempted to mend the statutes errors, was inartfully drafted and has thereby 
obfuscated the will of the people. The choice before this Court, therefore, is whether to further 
rectify the errors in the statute by reading into it new deadlines that will reasonably allow time to 
recount by hand or otherwise all of the ballots of all the voters in the State of Florida, or in the 
alternative, declare the statute and the election that was conducted pursuant to it invalid, thereby 
requiring a new election to be held in the State of Florida to determine who will be the winner of 
the 43rd Presidential election in Florida. 

C. VOTING RIGHTS OF ALL VOTERS ARE IMPACTED BY THESE 
CIRCUMSTANCES REQUIRING A COMPLETE RECOUNT OF ALL BALLOTS OR A 
NEW ELECTION 

Under the Civil Rights Act 42 USC 1983 and the Voting Rights Act 42 USC 1973 and the 
Fourteenth Amendment of the US Constitution , The right of the people to vote and to express 
their political will in elections by exercising their franchise is sacrosanct under the US 
Constitution and is protected by the Voting Rights Act as upheld in South Carolina v Katzenbach 
01, 314-15 (1966).As evinced by the pending or withdrawn litigation cited above, these 
allegations filed in good faith by citizens are only a small fraction of the totality of the 
irregularities and improprieties within the voting process as it was conducted in Florida in the 
November 2000 Presidential election. 

The U.S. Constitution, Amendment XIV: Section 1 clearly protects the franchise of all citizens 
equally regardless of state of residence: “All persons born or naturalized in the United States, and 
subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they 
reside. No state shall make or enforce any law which shall abridge the privileges or immunities of 
citizens of the United State; nor shall any state deprive any person of life, liberty, or prosperity 
without due process of law; nor deny to any person within its jurisdiction the equal protection of 
the law.” 

Any effort to undermine the integrity of this vital social contract that binds the States to each 
other by allowing a State to fall below the necessary minimum protections of the right to vote for 
its citizens in a National Presidential election undermines the integrity of all of the states and 
taints the valued franchise of citizens in those states that have followed the agreed upon due 
process standards. Such protections are reinforced by the Voting Rights Act (42 USC 1973) 
(quote) 42U.S.C.A. §1973 UNITED STATES CODE ANNOTATED TITLE 42. THE PUBLIC 
HEALTH AND WELFARE CHAPTER 20--ELECTIVE FRANCHISE SUBCHAPTER I-A-- 

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ENFORCEMENT OF VOTING RIGHTS ““§§ 1973. Denial or abridgement of right to vote on 
account of race or color through voting qualifications or prerequisites; establishment of violation 

(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be 
imposed or applied by any State or political subdivision in a manner which results in a denial or 
abridgement of the right of any citizen of the United States to vote on account of race or color, or 
in contravention of the guarantees set forth in section 1973b(f)(2) of this title, as provided in 
subsection (b) of this section. 

(b) A violation of subsection (a) of this section is established if, based on the totality of 
circumstances, it is shown that the political processes leading to nomination or election in the 
State or political subdivision are not equally open to participation by members of a class of 
citizens protected by subsection (a) of this section in that its members have less opportunity than 
other members of the electorate to participate in the political process and to elect representatives 
of their choice. 

In order for the national election of the 43 

rd President of the United States to be viewed as fair and 
impartial in the eyes of all USA voters who participate in that process, as well as the world or 
other third party objective observers it is imperative these federal standards, set forth in the 
Voting Rights Act as upheld by this Court, be met. When use of the law is popularly viewed as 
unfair and people believe that something happened that was improper, such that voters feel 
cheated by the process itself in Florida, (whether or not there has been any underlying fraud or 
corruption in the process itself,) impurity of the voice of the people thereby undermines the voice 
of all franchised voters who voted in the same national election for the US President. 

These types of irregularities bespeak an underlying corruption in the process, whether or not any 
such improprieties have occurred and resemble more of the civil and political rights issues seen in 
foreign nations than the USA’s proud democratic history. The harms caused by that appearance of 
impropriety which is repugnant to our democratic system of governance must be remedied. In 
such a case the sole valid remedy must be to remove the taint upon the people’s franchise by 
calling for a re-election whereby the voters of Florida whose voice has been overtaken by the 
existing system will have a new opportunity to vote for the President and Vice President of the 
United States. 

QUESTION 2: 

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

A. THE UNITED STATES CONSTITUTION ALLOWS LEEWEAY TO THE STATES 
BUT DOES NOT ALLOW OR ENCOURAGE LEGISLATORS TO SUBSTITUTE THEIR 
WISHES OR DESIRES FOR THE WILL OF THE PEOPLE. 

Ironically, the answer to Petitioner’s seemingly obvious question in this case is one of first 
impression without precedent before this Court. Thus, we must look to the logic of the plain 

15 

meaning of the words in their context, as a part of the totality of the precepts that create a 
framework for democratic republican governance, in order to guide the use of these words. 
Although States are left to fashion their methods of determining electors as their representatives, 
it is nonetheless dictated by logic as well as constitutional principles that such electors must vote 
in a manner that is consistent with the will of the majority and that any selection before all votes 
have been counted, or any selection based on an arbitrary portion of the votes to be tallied (but not 
all the ballots cast that have been tallied) is a usurpation of the legitimate power of the people as 
expressed through exercising their franchise. It is unlikely, if not inconceivable, that the US 
Constitution could be read to allow Florida legislators (or the legislators of any other State) to 
simply select a Presidential candidate of their choice who has not been chosen by the majority of 
the voters in their state. The full faith and credit clause Article IV of the US Constitution, 
demands that such appointment of electors be achieved without abridging the rights of any voters 
in order to maintain the integrity of the votes of citizens from other states. Marbury v. Madison 1 
Cranch 137, 2 L.Ed. 60 (1803), instructs us that in such situations, “ The constitution is either 
superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary 
legislative acts, and like other acts, is alterable when the legislature shall please to alter it. If the 
former part of the alternative be true, then a legislative act contrary to the constitution is not law: 
if the latter part be true, then written constitutions are absurd attempts, on the part of the people, 
to limit a power in its own nature illimitable”. 

The US Constitution grants States leeway and discretion in selecting their electors, but only 
insofar as the selection is consistent with the fundamental precepts of democracy. The choice 
must not be anarchistic or autocratic, but consistent with democratic principles, guided by and 
reflecting the will of the majority of the voters in that State. Furthermore, the methods chosen by 
said legislatures must comport with the parameters of democratic governance set forth in the 
United states Constitution and must exhibit mutual respect for the other States, consistent with 
Article IV’s commitment by the States to accord each other full faith and credit. Thus, the States 
have reserved the right to make certain discretionary choices regarding the methodology for 
selecting electors, but the candidate for whom those electors cast their ballots must be chosen by 
democratic means and must be consistent with the wishes of the majority of voters in the State. 

B. THE WILL OF THE PEOPLE OF FLORIDA IS PRESENTLY UNKNOWN 

It would be unconscionable, as well as unconstitutional for the legislature to disregard the will of 
the people by selecting a candidate that the people would not have elected. So too, in an election 
so close that the difference between the votes separating the certified winner and the loser is 
smaller than the statistical margin of error for counting, it is unclear whether the will of the people 
can be discerned or clearly heard. Therefore, the Florida legislature cannot proceed to select 
electors if either of the two following consequences have arisen: (1) the underlying Florida law 
that governed the election itself was based on an unconstitutional statute or (2) the votes from the 
State have not been counted properly or all votes have not been tallied, regardless of the 
certifications by election officials. 

The consequences of finding otherwise, would be the ability of a state Legislature to pick any 

16 

electors they wish, without regard to the total vote of the people, thereby breaking the full faith 
and credit clause of the US Constitution. 

QUESTION 3 

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

UNCONSTITUTIONAL ELECTION LAWS REQUIRE REMEDIES SUCH AS 
RECOUNT OR A NEW ELECTION 

If Florida is found to have breached the social contract between the states that implicitly but 
inevitably is a fundamental part of the respect accorded each and every State of the United States 
to the other States, breaking the obligation to grant each State “full faith and credit” under Article 
IV of the US Constitution, immediate and deliberate efforts must be made to repair the breach. 
Otherwise, such a breach of the social contract by Florida would taint the democratic process of 
the national election, thereby disenfranchising each citizen in the United States who voted in the 
election. 

The simplest and most trustworthy method for correcting these defects for the immediate 
question at bar concerning the election of the 43rd President of the United States of America: 
either recount all the votes in the State of Florida with oversight from federal authorities, or hold a 
new election with federal oversight pursuant to the precepts of the Voting Rights Act 42 US.C. 
1973. Judicial oversight in this regard, despite the disparaging characterization used by 
Petitioner, is a necessary and appropriate use of the power of Judicial Review as it appears as a 
gloss in the text of Article III of the United States Constitution, and is commonplace when there 
are election problems to be sorted out. In the alternative, we believe the People of this Nation will 
be better satisfied if all the discomfort of the tainted Florida election can be removed by calling 
for a new direct ballot election in the State of Florida. 

CONCLUSION: 
UNCONSTITUTIONAL LAWS CANNOT BE SUPPLANTED BY THE ARBITRARY 
SELECTION OF ELECTORS BY LEGISLATORS AND REQUIRE A FULL RECOUNT 
OF ALL BALLOTS OR A NEW ELECTION 

The full faith and credit clause in Article IV of the US Constitution requires that states extend the 
same rights to all citizens of the United States and to express the same respect for all of the laws 
of the separate states equally. As Justice Marshall stated in McCulloch v Maryland 17 US (4 
Wheat.) 316, 421 (1819), “Let the end be legitimate, let it be within the scope of the constitution, 
and all means which are appropriate, which are plainly adapted to this end, which are not 
prohibited but consistent with the letter and spirit of the constitution are constitutional”. 

Due to the exceptionally small margin which is within the margin of error of the machines 
themselves, a hand count of all ballots in Florida essential to preserving the franchise of every 
citizen who has voted in this nations’’November 2000 election. It is inconceivable that a manual 

17 

hand count, although cumbersome and time consuming, can be so long in its duration to amount 
to a violation of due process rendering it unconstitutional. In the event that this Court finds such 
delays would harm the Republic without regard to Constitutional issues, it is respectfully 
requested that there be a new vote in the State of Florida, following, if necessary, laws that may 
be written by its State legislature to correct defects in existing Florida State Election laws, or such 
other remedies as this Court may deem appropriate. We nonetheless most respectfully and most 
vehemently pray that this Court should make every effort to include the votes of all Florida 
voters, whether by hand count or by a new voter election, so that democratic process will go 
forward and that the franchise of all voters shall be preserved. 

PLEASE NOTE: TWO BRIEFS WRITTEN BY CITIZENS ALONE WILL APPEAR AS 
EXHIBIT ONE AND EXHIBIT TWO IN THE FINAL VERSION OF THIS DOCUMENT 

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