No. 00-836 

IN THE 

Supreme Court of the United States 

GEORGE W. BUSH, 

Petitioner, 

v. 

PALM BEACH COUNTY CANVASSING BOARD, et al., 

Respondents. 

On Writ Of Certiorari 
To The Supreme Court Of Florida 

REPLY BRIEF FOR PETITIONER 

MICHAEL A. CARVIN 
COOPER, CARVIN & 

ROSENTHAL, P.L.L.C. 
1500 K Street, N.W. 
Suite 200 
Washington, D.C. 20005 
(202) 220-9600 

BARRY RICHARD 
GREENBERG TRAURIG, P.A. 
101 East College Avenue 
Post Office Drawer 1838 
Tallahassee, FL 32302 
(850) 222-6891 
THEODORE B. OLSON 

Counsel of Record 
TERENCE P. ROSS 
DOUGLAS R. COX 
THOMAS G. HUNGAR 
MARK A. PERRY 
GIBSON, DUNN & CRUTCHER LLP 
1050 Connecticut Avenue, N.W. 
Washington, D.C. 20036 
(202) 955-8500 

BENJAMIN L. GINSBERG 
PATTON BOGGS LLP 
2550 M Street, N.W. 
Washington, D.C. 20037 
(202) 457-6000 

[Additional counsel listed on inside front cover] 

Counsel for Petitioner 

GEORGE J. TERWILLIGER III 
TIMOTHY E. FLANIGAN 
MARCOS D. JIMÉNEZ 
WHITE & CASE LLP 
601 Thirteenth Street, N.W. 
Suite 600 South 
Washington, D.C. 20005 
(202) 626-3600 
WILLIAM K. KELLEY 
Notre Dame Law School 
Notre Dame, Indiana 46556 

JOHN F. MANNING 
435 W. 116th Street 
New York, N.Y. 10027 

BRADFORD R. CLARK 
2000 H Street, N.W. 
Washington, D.C. 20052 

i 

TABLE OF CONTENTS 

Page 

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

I. Respondents’ Efforts To Recharac-terize 
The Decision Below Cannot Withstand 
Scrutiny...................................................................1 

II. The Decision Below Cannot Be Re- 
conciled With Article II........................................5 

III. The Judgment Below Should Be Va- 
cated Because It Does Not Comply With 
3 U.S.C. § 5..........................................................10 

A. The Decision Below Fails To 

Comply With § 5 ..........................................10 

B. This Court Should Vacate The 

Lower Court’s Decision In Order To 
Vindicate The Federal Mecha-nism 
In 3 U.S.C. § 5 ..............................................16 

C. The Decision Below Violates Due 

Process.................................................................................18 

IV. Petitioner’s Claims Are Clearly Justi- 
ciable .....................................................................19 

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

ii 

TABLE OF AUTHORITIES 

Page(s) 

CASES 

Three Affiliated Tribes v. Wold Eng’g, 467 

U.S. 138, 152 (1984) ...................................................17 

Baker v. Carr, 369 U.S. 186 (1962)................................19 

Bolden v. Potter, 452 So. 2d 564 (Fla. 1984)...................5 

Bouie v. City of Columbia, 378 U.S. 347 
(1964) ..............................................................................2 

Broward County Canvassing Board v. 

Hogan, 607 So. 2d 508 (Fla. App. 1992)....................3 

Burdick v. State, 594 So. 2d 267 (Fla. 1992)....................7 

California v. Superior Court, 482 U.S. 400 
(1987) ............................................................................17 

Dice v. Akron, Canton & Youngstown R.R., 
342 U.S. 359 (1952) ....................................................17 

Foster v. Love, 522 U.S. 67 (1997) .................................20 

General Motors Corp. v. Romein, 503 U.S. 
181 (1992).......................................................................2 

Growe v. Emison, 507 U.S. 25 (1993) ..............................8 

Herndon v. Georgia, 295 U.S. 441 (1935).......................6 

Indiana ex rel. Anderson v. Brand, 303 U.S. 
95 (1938).........................................................................2 

McPherson v. Blacker, 146 U.S. 1 (1892).............9,19,20 

Moore v. Oglivie, 394 U.S. 814 (1972)...........................20 

NAACP v. Alabama ex rel. Patterson, 357 

U.S. 449 (1958)..............................................................2 

Nelson v. Adams, 120 S. Ct. 1579 (2000).........................6 

iii 

Powell v. McCormack, 395 U.S. 486 (1969)..................20 

Roe v. Alabama, 43 F.3d 574 (11th Cir. 
1995)..............................................................................19 

Roudebush v. Hartke, 405 U.S. 15 (1972)................ 19,20 

Smiley v. Holm, 285 U.S. 355 (1932).............................7,8 

State ex rel. Davis v. Hildebrant, 241 U.S. 
565 (1916).......................................................................7 

United Air Lines v. Mahin, 410 U.S. 623, 
632 (1973).....................................................................17 

United States v. Boyle, 469 U.S. 241 (1985)....................4 

United States v. Nordic Village, Inc., 503 

U.S. 30 (1992)..............................................................12 

Walters v. Metropolitan Educ. Enters., Inc., 
519 U.S. 202 (1997) ....................................................12 

Williams v. Rhodes, 393 U.S. 23 (1968).........................20 

STATUTES 

U.S. CONST. art. I, § 7, cl. 2 ...............................................7 

U.S. CONST. art. II, § 1, cl. 2 .......................1,5,6,16,19,20 

U.S. CONST. amend. XIV § 1...........................................19 

U.S. CONST. amend. XIV § 5...........................................19 

3 U.S.C. § 5 .......1,4,5,10,11,12,13,14,15,16,17,18,19,20 

3 U.S.C. § 7 ..........................................................................4 

3 U.S.C. § 15 ......................................................................13 

FLA. CONST. art. II, § 3 .......................................................8 

Fla. Laws ch. 99-339, § 1....................................................9 

Fla. Laws 1989, c. 89-338 § 30..........................................3 

Fla. Laws 1989, c. 89-348 § 15..........................................3 

iv 

Fla. Stat. § 20.02 ..................................................................8 

Fla. Stat. § 102.111...........................................................2,3 

Fla. Stat. § 102.112...........................................................2,3 

Fla. Stat. § 102.166..............................................................3 

Fla. Stat. § 102.166(7).........................................................3 

Fla. Stat. § 102.168(6).........................................................5 

OTHER AUTHORITIES 

15 CONG. REC. 5079 (June 12, 1884) .............................18 

18 CONG. REC. 47 (Dec. 8, 1886).............................. 10,14 

18 CONG. REC. 75 (Dec. 9, 1886).........................10,14,15 

1 The Records of the Federal Convention of 
1787 (Max Farrand ed., 1966)......................................7 

2 The Records of the Federal Convention of 
1787 (Max Farrand ed., 1966)......................................7 

1 Dec. 1803, Annals 13:129, reprinted in 
5 FOUNDERS’ CONST.. ...................................................1 

REPLY BRIEF FOR PETITIONER 

The arguments advanced to this Court by respon- 
dents depend upon minimizing into insignificance the 
meaning of Article II, §1, cl. 2 of the Constitution, 3 
U.S.C. § 5, and the effect of the post-election revision of 
Florida election law by the Florida Supreme Court. If 
respondents are correct, the constitutional delegation to 
state legislatures of the power to determine the manner 
in which presidential electors are appointed, and Con- 
gress’s effort to provide a means by which a State’s se- 
lection of electors will be determined in a timely and 
conclusive manner according to rules and procedures 
adopted before the election, may easily be circumvented. 
The predictable consequence will be post-election chaos, 
turmoil, litigation and uncertainty whenever a state court 
changes the law for ascertaining the results of an elec- 
tion in the midst of that post-election process. Every 
close presidential election will be transformed into a 
litigation circus, the outcome of which will be deter- 
mined in substantial part by state court changes in elec- 
tion laws “passed for the occasion.” 1 Dec. 1803, An- 
nals 13:129 (reprinted in 5 FOUNDERS’ CONST. at 453). 

I. Respondents’ Efforts To Recharacterize The 
Decision Below Cannot Withstand Scrutiny 

Respondents’ lengthy and tortured efforts to rechar- 
acterize the decision below as a modest, hardly notice- 
able, garden-variety act of ordinary statutory interpreta- 
tion fail to withstand the mildest scrutiny.1 

1 Respondents contend that the Florida Supreme Court’s 
revision of Florida election law is impervious to any review 
by this Court. Gore Br. 1; Butterworth Br. 8-9. Where, 
however, the resolution of a federal question turns on 
whether a state tribunal adopted a new rule of law to the det- 
riment of the federal petitioner, this Court has not hesitated to 
examine the decision in light of preexisting state law. See 

2 

First, the Florida Supreme Court plainly rewrote the 
election laws in a number of significant respects. See 
Harris Br. 11-20. Its decision was as far removed as it 
could be from a “garden variety” statutory interpreta- 
tion. Gore Br. 1. In fact, while the court seasoned its 
opinion with discussions of canons of statutory construc- 
tion, even the court acknowledged that it was changing, 
not construing, the law. Throughout its opinion, the 
court repeatedly stressed that it would not be bound by 
“technical statutory requirements” (Pet. App. 36a), but 
would use its “equitable powers,” id. at 37a, to be 
guided by “the will of the people,” id. at 8a, “to reach 
the result that reflects the will of the voters,” id. at 10a, 
and to ascertain not the meaning of a statute but the 
“will of the electors,” id. at 36a. The court plainly un- 
derstood that its decision changed the meaning of clear 
statutory provisions in a manner that could affect the 
outcome of the election (and will, presumably, apply to 
future elections). 

Respondents’ efforts to rationalize what the court 
below actually did are most transparent in their argu- 
ment that the court was doing nothing other than resolv- 
ing a purported “conflict between one provision 
[§ 102.111] saying that counties filing returns after 
seven days ‘shall’ be ignored and another [§ 102.112] 
saying that returns filed past the deadline ‘may’ be ig- 
nored.” Gore Br. 14. Petitioner has already demon- 

Pet. Br. 20; General Motors Corp. v. Romein, 503 U.S. 181, 
187-88 (1992); Indiana ex rel. Anderson v. Brand, 303 U.S. 
95, 100 (1938); NAACP v. Alabama ex rel. Patterson, 357 
U.S. 449, 455 (1958). Indeed, in Bouie v. City of Columbia, 
378 U.S. 347, 353 (1964), this Court exercised independent 
judgment to determine whether a state supreme court’s “con- 
struction unexpectedly broaden[ed] a [criminal] statute which 
on its face had been definite and precise.” Such an “unfore- 
seeable state-court construction,” the Court held, violated the 
defendant’s due process right to fair notice by retroactively 
changing the law. Id. at 354-355. 

3 

strated the fallacy of that contention. Pet. Br. 22-25 & 

n.6, 45-46; see also Harris Br. 16-18 & n.13. Whatever 
“reconciliation” may be appropriate between the manda- 
tory and permissive non-inclusion of returns submitted 
after the deadline, no conceivable manipulation of those 
provisions could have led to the conclusion that the Sec- 
retary “shall accept” such returns. 

Respondents’ assertion that the mandatory statutory 
deadline of 5 p.m. on the 7th day after the election, 
which is contained in equally forceful language in both 
§ 102.111 and § 102.112, conflicts with the counties’ 
discretionary power to grant requests for manual re- 
counts (§ 102.166) “because in many cases a full manual 
recount simply cannot be completed by 5:00 p.m. on the 
seventh day following the election,” is equally indefen- 
sible. Gore Br. 14. The Florida legislature was un- 
doubtedly aware of this potential conflict, since it 
adopted the recount provision at the same time it reiter- 
ated the requirement that counties “must” file their re- 
turns within seven days of the election. See Fla. Laws 
1989, c. 89-338 §30, c. 89-348 § 15. Moreover, any 
perceived conflict is wholly illusory, since the decision 
to initiate a manual recount is wholly discretionary. 
Broward County Canvassing Board v. Hogan, 607 So. 
2d 508, 509 (Fla. App. 1992). If a county board believes 
it cannot make the legislative time limit for submitting 
its returns, it need not conduct the recount. And, if a 
county board chooses to conduct a recount, the legisla- 
ture has directed that “[t]he county canvassing board 
shall appoint as many counting teams of at least two 
electors as is necessary to manually recount the ballots” 
(Fla. Stat. § 102.166(7)(a) (emphases added))—pre- 
sumably to enable the county to meet the deadline. If it 
fails to complete the recount by the deadline, § 102.112 
provides that the Secretary “may .. . ignore[]” untimely 
returns. See Pet. Br. 22 & n.6. 

Respondents—like the court below—close their 
eyes to the fact that the setting of deadlines constitutes a 

4 

balancing of numerous factors and is an inherently legis- 
lative task. Here, for example, the Florida legislature 
had to strike a balance between potentially lengthy re- 
count proceedings, an appropriate period for protests, a 
suitable period for judicially conducted contests with po- 
tential appeals, and the need for finality in the context of 
the deadlines that apply to a presidential election. It bal- 
anced those factors and decided on a seven-day window 
after the election for protests and limited recounts and 
twenty-eight days or so for any potential contests. To be 
sure, such deadlines are “inherently arbitrary,” but fixed 
dates “are often essential to accomplish necessary re- 
sults.” United States v. Boyle, 469 U.S. 241, 249 (1985). 
That is particularly true in the context of presidential 
elections, where federal law fixes precise deadlines for 
the appointment of electors because the need for finality 
has significance for the entire nation. See 3 U.S.C. §§ 5, 

7. The simple truth is that the Florida legislature estab- 
lished clear, unambiguous and sensible statutory dead- 
lines enforceable by the Secretary of State. The Florida 
Supreme Court revoked those deadlines and essentially 
terminated the Secretary’s statutorily granted authority. 

Second, the Florida Supreme Court also decided to 
create, out of whole cloth, a new deadline for a selective, 
standardless, changing and unequal manual recount 
process for this particular election—an “equitable” de- 
cree completely untethered to any legislative judgment. 
See Pet. App. 37a. Having determined to abandon the 
statutory November 14 deadline, the court was forced to 
devise another date to ensure some semblance of final- 
ity. At oral argument in the court below, one of the jus- 
tices asked, “Are we just going to reach up [for] some 
inspiration and put it down in paper?” Unofficial Tr. of 
Oral Arg. 14. Since respondents’ counsel could offer no 
alternative date, the court apparently did reach some- 
where for inspiration and settled on 5:00 p.m. on Sun- 
day, November 26. Pet. App. 38a. Respondents make 
no effort to contend that the deadline devised by the 

5 

court below is not a new rule adopted for purposes of 
this election. 

The court’s equitable decree divining a new dead- 
line to fulfill its vision of the will of the electorate did 
not just substitute one arbitrary deadline for another. 
The court’s ruling also had the effect of substantially 
shortening the legislatively decreed time for post- 
certification contests to the election results (assuming 
arguendo that such contests are even permissible in this 
context). Once the results were finally certified on No- 
vember 26, respondent Gore filed a contest to the elec- 
tion. Under Florida law, the defendant(s) must respond, 
Fla. Stat. § 102.168(6), and defend the certified outcome 
in full judicial proceedings, including discovery, trial, 
and appeals. See, e.g., Bolden v. Potter, 452 So. 2d 564, 
565-66 (Fla. 1984). In light of the federal deadline for 
the appointment of electors, the court’s extension of the 
certification deadline has dramatically compressed the 
time for efforts to contest the election and, most signifi- 
cantly, for defending against such efforts. 

The partisan struggle in Florida today is precisely 
the kind of chaotic situation that would have been 
avoided by adherence to the statutory deadline. The 
Florida Supreme Court’s willingness to fashion new 
rules of law for this election has cast the election into 
turmoil and prolonged a dispute that should have been 
avoided. The court’s revision of Florida election law, 
which is inconsistent with Article II and incompatible 
with Florida’s implementation of 3 U.S.C. § 5, should be 
set aside so that the presidential election can achieve 
lawful finality. 

II. The Decision Below Cannot Be Reconciled 
With Article II 

As previously explained (Pet. Br. 36-50), the Florida 
Supreme Court’s equitable reworking of Florida’s statu- 
tory electoral scheme cannot be reconciled with Article 
II, § 1, cl. 2 of the Constitution, which provides that 

6 

electors shall be appointed “in such Manner as the 
[state] Legislature . . . may direct.” Respondents have 
failed to justify the post-election judicial revision of the 
Legislature’s direction as to how Florida’s electors are 
to be appointed.2 

The Gore respondents contend that “Article II’s 
command is directed to the States qua States.” Gore Br. 
34-35. That assertion is incorrect. Article II does vest 
the authority to appoint electors in “Each State.” How- 
ever, the Constitution vests the authority to “direct” the 
“Manner” of appointing electors in each State in “the 
Legislature thereof.” As petitioner has already estab- 
lished (Pet. Br. 41-43), this distinction is of constitu- 
tional significance. Where the Framers intended to vest 
authority in the States as such, they said so. But where 
they wanted to specify an organ of state government to 
perform a function (or carry out a responsibility), they 
also said so. Where the Constitution spells out the 
agency of the State that is assigned a particular function, 
fulfillment of the constitutional design requires that such 
a designation be afforded legal meaning. 

2 The Gore respondents suggest that “this claim may not be 
properly before the Court.” Gore Br. 33. That suggestion, 
tentative though it is, is unwarranted. Petitioner argued be- 
low that Article II of the Constitution “provides that the leg- 
islatures of the States will prescribe the manner in which 
presidential electors are chosen,” and that it would “violate 
federal law for the state courts to use equitable doctrines to 
supplement the legislature’s judgment, reflected in the stat- 
utes of the state, regarding the methods and time limits for 
selecting presidential electors.” Pet. App. 62a-63a n.15. 
This was sufficient to put the Florida Supreme Court on no- 
tice of precisely the claim presented in this Court: That the 
court would (and, ultimately, did) exceed its constitutional 
authority if it were to supplant the legislature’s directives re- 
garding the manner of appointing electors with its own. See, 

e.g., Nelson v. Adams USA, Inc., 120 S. Ct. 1579, 1586 
(2000); Herndon v. Georgia, 295 U.S. 441, 443-44 (1935). 

7 

Relying primarily on Smiley v. Holm, 285 U.S. 355 
(1932), respondents assert that state statutes governing 
the appointment of electors “have always been subject to 
state law processes including state judicial review and 
gubernatorial veto.” Gore Br. 36; see also Butterworth 
Br. 14-15. Smiley held that a state governor could par- 
ticipate through the veto power in the enactment of elec- 
toral legislation; it did not address, nor has this Court 
ever addressed, the authority of a state court to revise 
laws relating to presidential elections enacted under Ar- 
ticle II. The distinction is significant, because the Fram- 
ers anticipated participation by the executive branch 
(through the veto power) in the legislative process, but 
specifically rejected any involvement of the judiciary in 
that process. Compare U.S. CONST. art. I, §7, cl. 2, 
with 1 The Records of the Federal Convention of 1787 
21 (Max Farrand ed., 1966), 2 Farrand 75 (Framers re- 
jected proposal for “council of revision,” comprised 
partly of judges, with power to nullify legislation). As 
explained earlier, the Framers contemplated various 
means by which electors might be selected in their 
lengthy consideration of this subject; the one alternative 
that was roundly rejected was that the selection be 
lodged with the state judiciary. Pet. Br. 38. 

Smiley actually supports petitioner, not respondents. 
This Court in Smiley made clear that the constitutional 
delegation to state legislatures to regulate the “manner” 
of congressional elections (under Art. I, §4) involves 
“lawmaking.” 285 U.S. at 366. Because, under the state 
constitution there involved, the governor had a role in 
the “lawmaking” function (i.e., the veto power), his ex- 
ercise of that role was constitutional. Id. at 368; see also 
State ex rel. Davis v. Hildebrant, 241 U.S. 565, 568-69 
(1916) (sustaining use of referendum in respect of con- 
gressional election because state constitution allowed 
“lawmaking” through referendum). In Florida, however, 
the judiciary does not have a role in the “lawmaking” 
process. FLA. CONST. art. II, § 3; Fla. Stat. § 20.02; see 
Burdick v. State, 594 So. 2d 267, 270 n.8 (Fla. 1992) 

8 

(“Clearly this Court’s role is to interpret, not to legislate. 
Accordingly, we can do no more than point out what ap- 
pears to us to be a serious inconsistency between the two 
statutory . . . schemes”). Thus, the state supreme court’s 
revision of Florida’s duly enacted legislation, in contra- 
vention of the restrictions imposed on it under the state 
constitution, is the opposite of the situation presented in 
Smiley.3 

In short, the problem with respondents’ approach to 
Article II is the applicability of the general principle 
they discuss to the circumstances of this case. Despite 
their effort to clothe the decision below in benign col- 
oration, that court materially revised the manner of ap- 
pointing Florida’s electors. This was not the formal and 
authorized participation in the process considered in 
Smiley, but the usurpation of power, however well in- 
tended, by the judiciary from the legislature—the spe- 
cific branch of state government entrusted by the Consti- 
tution to perform this function.4 

The Gore respondents concede (as, indeed, they 
must) that “[i]f the state supreme court or Governor de- 
cided to pick electors on its own, in disregard of state 
law, that would violate the Constitution.” Gore Br. 37 

3 Moreover, Smiley involved redistricting rather than a di- 
rect regulation of elections. The apportionment of legislative 
districts is committed to the States qua States by Article I, 
Section 2. See Growe v. Emison, 507 U.S. 25, 34 (1993). 
For this reason, the Gore respondents’ attempted reliance on 
Growe’s approval of state-court involvement in this area (see 
Gore Br. 38) is also misplaced. 

4 Respondent Butterworth actually insists (Br. 17-18) that 
the state judiciary wields power over elections, including the 
adjustment of deadlines, that is “wholly independent” of the 
legislature. While the exercise of such authority might be 
permissible under state law in elections for state officers, it is 
clearly not authorized by Article II in presidential elections. 
The court below apparently overlooked this point 

9 

n.24. But that is very close to the reality of what hap- 
pened in this case. The Florida Supreme Court, by uni- 
laterally altering the statutory deadlines for certifying 
election returns, authorizing extended manual recounts 
in selected counties, and changing the circumstances 
under which recounts can be considered, altered the 
“manner” of appointing electors. The state supreme 
court here arrogated to itself a power—the power to “di- 
rect” the “manner” in which electors will be selected— 
reserved by our Constitution exclusively to the legisla- 
ture. See McPherson v. Blacker, 146 U.S. 1, 27 (1892).5 
That unauthorized exercise of constitutionally delegated 
power cannot escape this Court’s scrutiny through the 
simple expedient of labeling it “judicial review.”6 

Finally, the Gore respondents refute an argument 
not made by petitioner, asserting that the separation of 
powers is generally not mandatory on the States. Gore 
Br. 42. As a general proposition, that is unexception- 
able. In this context, however, the Constitution specifi- 
cally assigns the power to determine the manner of ap- 
pointing presidential electors to the state legislature, not 
to the State. The Constitution thus, in this instance, does 
select a specific agency of state government in which to 
repose this authority. Moreover, petitioner has not ar- 
gued that the Florida legislature cannot constitutionally 

5 Petitioner notes that a citation to McPherson in the open- 
ing brief (at 47) inadvertently omitted the fact that the Court 
was quoting, with approval, from an 1874 Senate Report on 
the subject of the Electoral College. 

6 For this reason, the Gore respondents’ lengthy recitations 
of judicial and administrative interpretations of state election 
laws (Gore Br. 39-41 & nn.28-30), as well as their observa- 
tion that state courts can adjudicate violations of election 
laws (id. at 43-44), are completely irrelevant. Petitioner has 
never contended that state courts, or executive officers, are 
precluded by Article II from construing laws relating to elec- 
tions. 

10 

grant authority to the judiciary where it has explicitly 
chosen to do so. See Pet. Br. 43. Petitioner’s point is 
that the Florida legislature has not done so; and in the 
absence of an express grant of the authority reserved to 
the legislature by the Constitution, the state supreme 
court was constitutionally prohibited from exercising 
that authority of its own volition. 

III. The Judgment Below Should Be Vacated Be- 
cause It Does Not Comply With 3 U.S.C. § 5 

A. The Decision Below Fails To Comply 

With § 5 

Section 5 is much more simple, straightforward and 
functional than respondents have described. It provides 
an opportunity for States, if they enact pre-election laws 
providing for the determination of controversies con- 
cerning the appointment of electors, and if they resolve 
such controversies pursuant to such laws in a timely 
manner, to ensure that the State’s determination “shall 
be conclusive, and shall govern in the counting of the 
electoral votes.” Florida did enact such laws and was in 
the midst of ascertaining the results of its election pursu- 
ant to those laws when the Florida Supreme Court, exer- 
cising its equitable powers, rewrote Florida’s laws for 
determining election controversies, enjoined the state 
executive from complying with those laws, and changed 
various deadlines and dispute resolution procedures. 
That intervention violated Article II and jeopardized the 
State’s (and petitioner’s) right to the conclusive effect 
accorded by §5. The judgment below is, therefore, a 
nullity. 

Respondents’ characterization of petitioner’s argu- 
ment concerning the effect of § 5 and respondents’ ren- 
dition of §5’s legislative history are wide of the mark. 
It is true that States are not required to adopt election 
laws as contemplated by §5. But if they do not do so, 
they run the risk of the uncertainty and confusion 
regarding the appointment of their electors that is occur- 

11 

garding the appointment of their electors that is occur- 
ring in Florida today. 

Florida did, however, adopt laws designed to ensure 
that the State, its voters, and its electors would receive 
the due process, finality and conclusiveness that § 5 
promises. And Florida was in the process of resolving 
disputes and certifying its electors in accordance with 
§ 5 when the Florida Supreme Court sua sponte issued 
an injunction to stop that process dead in its tracks ten 
days after the election and, four days later, rewrote the 
law that embodied Florida’s attempt to comply with and 
gain the benefits of § 5. If that intervention is sustained, 
Florida and its voters face a risk that they will not obtain 
the benefits of § 5. If it is a nullity, as petitioner con- 
tends, this Court can restore the order to Florida’s elec- 
tion that its legislature endeavored to give it pursuant to 
Article II and § 5. 

There is no dispute that one purpose of § 5 is to en- 
sure that determinations of controversies over electors 
will govern in the counting of electoral votes. Where re- 
spondents err is in asserting that the legislative history 
reveals “that the statute’s only purpose and effect is to 
provide the States with a way to guarantee that a State’s 
electors will not be subject to challenge in Congress at 
the time the electors’ votes are tabulated pursuant to the 
Twelfth Amendment.” Gore Br. 23 (emphasis added). 
Both the text and the legislative history of § 5 make 
plain that any state court decision resolving a contro- 
versy over the appointment of electors on the basis of a 
new rule of law that had not been enacted prior to the 
election does not receive the binding and conclusive ef- 
fect accorded when § 5 is complied with. 

Section 5 expressly provides that determinations by 
state tribunals regarding disputes over presidential elec- 
tors will have two consequences if they comply with the 
requirements of § 5: First, such determinations “shall be 
conclusive,” and second, they “shall govern in the 
counting of electoral votes.” 3 U.S.C. §5. Respon- 

12 

dents’ interpretation of § 5 effectively reads the first of 
these consequences out of the statute. In respondents’ 
view, the sole and exclusive effect of compliance with 
§ 5 is that the state tribunal’s determination “shall gov- 
ern in the counting of electoral votes”; the separate al- 
lowance of “conclusive” effect is wholly superfluous. 
Respondents’ interpretation is thus irreconcilable with 
“the settled rule that a statute must, if possible, be con- 
strued in such fashion that every word has some opera- 
tive effect.” United States v. Nordic Village Inc., 503 
U.S. 30, 36 (1992). 

By declaring that only those state court determina- 
tions complying with §5 would be “conclusive,” Con- 
gress made clear that § 5 is not aimed solely at determin- 
ing which electoral votes “shall govern in the counting.” 
Instead, §5 also addresses the broader question of the 
types of state court determinations that will receive 
“conclusive” effect in the process of certifying electoral 
votes from a State. In order to avoid any incentive for 
the type of post hoc judicial legislation at issue in this 
case, Congress decided that a state tribunal’s resolution 
of controversies or contests concerning the appointment 
of electors would not bind the parties and state officials 
involved, unless such determinations were made “pursu- 
ant to” the law as enacted prior to election day. Only 
this reading of § 5 gives independent meaning to the two 
distinct phrases contained in the statute—“shall be 
conclusive” and “shall govern in the counting.” 

The error in the Gore respondents’ interpretation of 
§ 5 is confirmed by the structural relationship between 
§ 5 and 3 U.S.C. § 15. Section 15 sets forth procedures 
for Congress to follow in determining whether to count a 
given set of electors from a State. As previously ex- 
plained (Pet. Br. 31), in some circumstances §15 re- 
quires Congress to count disputed electoral votes in ac- 
cordance with the certification of the state executive. 
See 3 U.S.C. § 15 (if the Senate and House disagree over 
multiple electoral vote returns from a State, “the votes of 

13 

the electors whose appointment shall have been certified 
by the executive of the State, under seal thereof, shall be 
counted”). If state courts were permitted to fashion new 
rules of law and apply them retroactively to change the 
results of a presidential election, and were further per- 
mitted to compel state executive branch officials to cer- 
tify election results in compliance with that act of post 
hoc judicial legislation, such state court decisions could 
govern in the counting of electoral votes despite Con- 
gress’s express determination in §5 that judicial deter- 
minations of that nature must not be given binding ef- 
fect. Only petitioner’s reading of § 5 avoids this irrec- 
oncilable conflict between the provisions of § 5 and § 15 
by making clear that judicial decisions in violation of the 
requirements of § 5 are not “conclusive” and thus do not 
bind state executive officials in the performance of their 
legislatively conferred responsibilities. 

The Gore respondents also contend (Gore Br. 31-33) 
that because the state supreme court itself was in exis- 
tence prior to election day and empowered to settle elec- 
tion controversies, § 5 was satisfied. That contention is 
would make § 5 a virtual nullity. Section 5 requires that 
the tribunal’s determination be made “pursuant to” the 
“laws enacted prior to” election day. This statutory re- 
quirement refutes any implication that courts can com- 
ply with § 5 while invoking their equitable powers to 
decree new election rules in contravention of plain statu- 
tory text. See Pet. Br. 26. By overriding the clear legis- 
lative directives imposing a November 14 deadline on 
the submission of county election returns and by crafting 
a new twelve-day extension through its equitable pow- 
ers, the Florida Supreme Court failed to satisfy § 5. 

This post-election departure plainly contravenes the 
purpose of §5’s requirement that disputes be resolved 
pursuant to laws enacted prior to the election, not under 
post-election rules of procedure and dispute resolution 
crafted with full knowledge of their potential effect on 
the outcome of a disputed presidential election. The leg- 

14 

islative history clearly reveals Congress’s concern with 
ensuring that the rules governing election contests would 
be enacted prior to the election: 

In my judgment it would be wise if it could be 
provided that these contests should be decided 
under and by virtue of laws made prior to the 
exigency under which they arose, made prior to 
the existence of the particular contest to be de- 
cided. . . . I think that it would be wise if the 

contest should be made in the face of existing 
law rather than that the law should be made in 
the face of the existing contest. 

18 CONG. REC. 47 (Dec. 8, 1886) (remarks of Rep. Coo- 
per) (emphasis added).7 

Representative Herbert echoed this same sentiment 
and presciently explained the danger in invoking new 
legal rules to resolve a dispute over presidential electors: 

The country never will be satisfied in any politi- 
cal case with a temporary expedient or device 
under a law passed at the moment, after parties 
had taken sides on the question. The party los- 
ing under such circumstances will naturally be- 
lieve it has been cheated. The people of this 
country are law-loving and law-abiding, but 
they want laws passed before cases arise, and 
not with reference to any special case that may 
have arisen. 

18 CONG. REC. 75 (Dec. 9, 1886).8 

7 Representative Cooper’s comments were made in re- 
sponse to a minority objection to the inclusion of the provi- 
sion that disputes between contending electors should be set- 
tled pursuant to the “laws enacted prior to” election day. 18 
CONG. REC. 47. Notably, the Gore respondents’ many cita- 
tions to the legislative history behind 3 U.S.C. §5 do not in- 
volve this crucial aspect of the statute, let alone undermine 
this clear evidence of Congress’s intent. 

15 

Nothing in the legislative history cited by the Gore 
respondents answers this primary point. Congress did 
not intend state courts to be free to change the rules after 
a presidential election and then impose those newly 
fashioned rules on the executive branch officials charged 
with certifying the election results. That is particularly 
true where, as here, such a state court decision threatens 
to nullify the legislature’s decision (in the exercise of its 
exclusive authority under Article II) to claim for the 
State the benefits of compliance with § 5. 

Respondents also err in suggesting (Gore Br. 28-30) 
that applying § 5 in accordance with its terms would 
raise serious constitutional questions. Respondents’ Ar- 
ticle II concerns are wholly misplaced. As discussed 
elsewhere (Pet. Br. 36-39; Part II, supra), Article II vests 
in the state legislature, not the state supreme court, the 
power to determine the manner of appointing electors. 
Applying § 5 to prevent state courts from adopting new 
retroactive rules that were not enacted by the legislature, 
and which undermine a State’s ability to select its elec- 
tors, hardly conflicts with Article II. To the contrary, 
§ 5 advances the constitutional interests expressed in Ar- 
ticle II by ensuring that the legislature, rather than state 
courts or other tribunals, determines the manner of ap- 
pointing presidential electors.9 

8 Ironically, Representative Herbert compared the people’s 
interest in having disputes resolved under pre-set laws with 
the proper judicial role of interpreting the law as enacted: 
“Like the upright judge, when he is compelled to decide what 
his conscience does not approve, he says: ‘This, indeed, is 
very hard, but so the law is written.’ And therefore it is that 
an unjust law, an imperfect law, is better than no law at all. 
Let the people know beforehand what the law is and what 
they are to expect.” 18 CONG. REC. 75 (emphases added). 

9 An interpretation of § 5 that purported to limit the 
legislature’s authority to enact post-election legislation re- 
garding the appointment of electors might raise constitutional 
questions under Article II, but no such issue is presented in 

16 

Respondents’ federalism argument is equally with- 
out merit, as it rests on an inaccurate caricature of peti- 
tioner’s arguments. Petitioner nowhere contends that 
§ 5 “preclude[s] judicial involvement in state election 
disputes.” Gore Br. 29-30. Petitioner’s point is simply 
that where, as here, a state supreme court has adopted a 
new rule and attempted to apply it retroactively to affect 
the results of a presidential election, the court’s decision 
is not binding on either the Congress or state election 
officials. 

B. This Court Should Vacate The Lower 

Court’s Decision In Order To Vindicate 
The Federal Mechanism In 3 U.S.C. § 5 

Respondents’ mistaken reading of § 5 drives their 
inadequate response to the specific question posed by 
this Court: What would be the consequences of this 
Court’s finding that the decision of the Supreme Court 
of Florida does not comply with 3 U.S.C. § 5? The Gore 
respondents brush aside that question in a single para- 
graph. Gore Br. 30-31. 

According to the Gore respondents, this Court can- 
not vacate the judgment below, even if the Court con- 
cludes that the Florida Supreme Court’s decision is in- 
consistent with the requirements of § 5. As shown 
above, that argument ignores the substance of § 5; 
moreover, it ignores the effects that the judgment below 
has had and may continue to have on state officials at- 
tempting to perform their role in presidential elections. 
See Pet. Br. 32-36. 

Florida, through its legislature and consistent with 
Article II, has created a system whereby officers of Flor- 
ida’s executive branch are authorized to act to secure for 
Florida the advantages of § 5: That “its final determina- 
tion” according to laws enacted before the election—not 

tions under Article II, but no such issue is presented in this 
case. 

17 

the determination of some other entity—shall be “con- 
clusive” and shall “govern in the counting of the elec- 
toral votes.” Actions by the responsible state officials to 
perform their duties under §5 cannot be overthrown by 
the state court, whether or not its ruling is correct as a 
matter of state law. E.g., California v. Superior Court, 
482 U.S. 400 (1987) (state supreme court reversed for 
attempting to prevent state executive from performing 
duties under federal statute). That the court below pur- 
ported to base its decision on state law does not shield it 
from review (or reversal) by this Court when important 
federal interests are at stake. See, e.g., Dice v. Akron, 
Canton & Youngstown R.R. Co., 342 U.S. 359 (1952) 
(reversing attempt by state supreme court to enforce 
state law on grounds that state law would impair sub- 
stantial federal interest); see also Pet. Br. 31-32 & n.10. 

Moreover, the Court has made clear that when a 
state court decision is predicated on an erroneous under- 
standing of federal law, the normal course is to vacate 
that decision and remand for further consideration in 
light of a proper understanding of federal law. Three Af- 
filiated Tribes v. Wold Engineering, Inc., 467 U.S. 138, 
152 (1984); see also United Air Lines, Inc. v. Mahin, 
410 U.S. 623, 632 (1973). Thus, even if the Gore re- 
spondents are correct that §5 merely provides a “safe 
harbor” where the election laws are not changed after 
election day, it is plain both that the Florida court was 
concerned that its actions comport with Title III and that 
it did not understand that its decision might jeopardize 
such a “safe harbor.” E.g., Pet. App. 32a & n.55. 
Whether or not there has been a change in law under § 5 
is a federal question, and, if the Florida court was incor- 
rect in its understanding of federal law, in light of the 
impending time constraints, this Court should simply 
vacate the decision below to rectify that error. 

It would defeat § 5’s very purpose to hold, as re- 
spondents urge, that only Congress can enforce the stat- 
ute. That argument would have the perverse effect of 

18 

largely rendering § 5 a nullity in precisely those cases— 
close, contested elections—in which Congress clearly 
intended § 5 to have the most force. As the Gore re- 
spondents acknowledge, the presidential election of 
1876, in which Congress had to resolve the conflicting 
claims of multiple sets of electors, pushed the Nation 
toward the brink of a “r enewed civil war.” Gore Br. 23. 
In the wake of this grave threat to the country’s political 
stability, “Congress recognized that .. . it was essential 
to take ‘this question out of the political cauldron.’” 
Gore Br. 23-24 n.14 (quoting 15 CONG. REC. 5079 (June 
12, 1884) (statement of Rep. Browne)). Section 5 em- 
bodies the congressional mechanism for ensuring that in 
a close election, state tribunals are authorized to act to 
determine electors with fairness and finality and with 
reference to pre-existing rules, so that Congress will 
only rarely be compelled to exercise its ultimate author- 
ity to determine which electors are valid. Yet under the 
Gore respondents’ minimalist interpretation, §5 would 
simply return the question of contested electors to “the 
political cauldron” of Congress, even where a state leg- 
islature has complied with the statute to obtain for its 
constituents the benefits of §5—as Florida’s had done 
here, before the court below intervened. The statute 
should not be interpreted to require that self-defeating 
result. 

The court below failed to comply with § 5; this 
Court should vacate the judgment below in order to pre- 
serve the federal statutory system and to provide the cer- 
tainty and finality for presidential elections that Con- 
gress intended. 

C. The Decision Below Violates Due Process 

As 3 U.S.C. § 5 demonstrates, Congress has decided 
that in the election context in particular, retroactive new 
rules are fundamentally and unacceptably unfair— 
reinforcing the Due Process Clause’s general concern 
for fundamental fairness and adequate notice. See U.S. 

19 

CONST. amend. XIV §§ 1, 5. The Gore respondents ar- 
gue that the new election procedures announced by the 
court below are factually distinct from the new vote- 
counting rule found to be unconstitutional in Roe v. Ala- 
bama, 43 F.3d 574 (11th Cir. 1995). Gore Br. 45. But 
here, as in Roe, ballots that would not have been counted 
as lawful votes under the rules in place on election day 
may have their legal status changed as a result of the 
new timetable, as a direct conseuence of selective, sub- 
jective, standardless and shifting methods of manual 
vote recounting and as a result of the Gore respondents’ 
recent, tactical embrace of “dimpled” ballots. Pet. Br. 
33 & n.12. Such post-election changes violate due proc- 
ess. See Alabama Br. 13-28. 

IV. Petitioner’s Claims Are Clearly Justiciable 

Amici Florida Senate and House contend that com- 
pliance with 3 U.S.C. § 5 is a nonjusticiable political 
question properly resolved by the Florida legislature or 
Congress. Amici Br. 4. That claim is misplaced. This 
case presents precisely the sort of “judicial question” 
this Court decided in McPherson v. Blacker, 146 U.S. 1, 
23 (1892), and numerous other cases that happen to arise 
in a political context. See Baker v. Carr, 369 U.S. 186, 
217 (1962) (“The doctrine . . . is one of ‘political ques- 
tions,’ not one of ‘political cases.’”). 

There is no “textually demonstrable constitutional 
commitment of the issue to a coordinate political de- 
partment,” nor is there “a lack of judicially discoverable 
and manageable standards for resolving” the issues un- 
der either 3 U.S.C. § 5 or Article II, § 1. Baker v. Carr, 
369 U.S. at 217. To the extent that a determination un- 
der either provision tangentially relates to a constitu- 
tional function that may be performed by Congress or 
the Florida legislature, such an attenuated connection 
does not preclude judicial review. See, e.g., Roudebush 

v. Hartke, 405 U.S. 15 (1972); Powell v. McCormack, 

20 

395 U.S. 486 (1969); Moore v. Oglivie, 394 U.S. 814 
(1969); Williams v. Rhodes, 393 U.S. 23 (1968). 

Perhaps the most significant result of a ruling for pe- 
titioner in this case would be to clarify the governing 
federal law standards and thereby avoid a potential con- 
stitutional crisis. By making clear in this case the un- 
warranted nature of the Florida Supreme Court’s intru- 
sion into the legislatively mandated process for appoint- 
ing electors, this Court will eliminate the potential for an 
unseemly conflict between Florida’s legislative and ju- 
dicial branches regarding the appointment of electors. 

Moreover, the fact that other governmental entities, 
such as the Florida legislature and Congress, may review 
the issue—and may have other means of remedying vio- 
lations of Article II and §5—does not render these is- 
sues nonjusticiable. In McPherson, 146 U.S. at 23, this 
Court exercised jurisdiction over a challenge to Michi- 
gan’s statutory scheme for appointing electors, even 
though (as the Michigan Secretary of State argued) state 
or federal actors might later have adjudicated the same 
questions in the exercise of their respective authorities. 
See also Foster v. Love, 522 U.S. 67 (1997) (congres- 
sional power to judge elections and qualifications of 
members did not foreclose Court’s review of Louisiana 
election scheme). Consequently, the fact that the state 
legislature and the Congress might address issues in- 
volved in the appointment of Florida’s electors in no 
way precludes this Court from exercising jurisdiction 
over the present controversy. 

CONCLUSION 

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

Respectfully submitted. 

MICHAEL A. CARVIN 
COOPER, CARVIN & 

ROSENTHAL, P.L.L.C. 
1500 K Street, N.W. 
Suite 200 
Washington, D.C. 20005 
(202) 220-9600 

BARRY RICHARD 
GREENBERG TRAURIG, P.A. 
101 East College Avenue 
Post Office Drawer 1838 
Tallahassee, FL 32302 
(850) 222-6891 

GEORGE J. TERWILLIGER III 
TIMOTHY E. FLANIGAN 
MARCOS D. JIMÉNEZ 
WHITE & CASE LLP 
601 Thirteenth Street, N.W. 
Suite 600 South 
Washington, D.C. 20005 
(202) 626-3600 
THEODORE B. OLSON 

Counsel of Record 
TERENCE P. ROSS 
DOUGLAS R. COX 
THOMAS G. HUNGAR 
MARK A. PERRY 
GIBSON, DUNN & CRUTCHER LLP 
1050 Connecticut Avenue, N.W. 
Washington, D.C. 20036 
(202) 955-8500 

BENJAMIN L. GINSBERG 
PATTON BOGGS LLP 
2550 M Street, N.W. 
Washington, D.C. 20037 
(202) 457-6000 

WILLIAM K. KELLEY 
Notre Dame Law School 
Notre Dame, Indiana 46556 

JOHN F. MANNING 
435 W. 116th Street 
New York, N.Y. 10027 

BRADFORD R. CLARK 
2000 H Street, N.W. 
Washington, D.C. 20052 

Counsel for Petitioner 

November 30, 2000