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 

BRIEF OF RESPONDENTS 
AL GORE, JR., AND FLORIDA DEMOCRATIC PARTY 

(Additional Counsel Listed 

Laurence H. Tribe 

In Signature Block) 

(Counsel of Record) 

Hauser Hall 420 
1575 Massachusetts Ave. 
Cambridge, MA 02138 

November 28, 2000 

STATEMENT OF THE CASE 

This case involves a decision of the Florida Supreme Court 
interpreting Florida’s Election Code in accord with the laws and 
constitution of the State of Florida. Petitioner attempts to convert the 
state law issues decided by the Florida court into questions of federal 
law under 3 U.S.C. § 5, Article II, § 1, cl. 2 of the United States 
Constitution, and the Due Process Clause of the Fourteenth 
Amendment. But in fact the Florida court applied garden variety 
principles of statutory interpretation to resolve ambiguities and 
reconcile conflicting provisions within the Florida Election Code. 
Even if federal law had something to say about the scope of state 
judicial authority to construe state legislation, which it does not, the 
decision below effected no “change” in Florida law “which cannot be 
reconciled with state statutes enacted before the election.” See Pet. 
i (Question Presented 2). 

In any event, petitioner flatly misreads the provisions of federal 
law on which he relies. Section 5 of Title 3 does not “require[]” the 
States to do anything, contrary to the phrasing of the first Question 
Presented, but merely offers to the states a safe harbor with respect 
to controversies regarding electors that might arise before Congress 
when the electoral votes are counted. As to the additional question 
framed by this Court, there can be no judicial remedy for failure to 
“comply” with Section 5. 

Moreover, Article II, § 1, cl. 2 does not cut into the authority of 
state courts to review and construe state election statutes under state 
law and thus would not be offended in this case even if the Florida 
Supreme Court had made “new” law. Nothing in the Constitution’s 
several delegations of power to the “legislatures” of the States has 
ever been held to limit the role of the other branches of state 
government in the lawmaking process, including the authority of the 
state courts to act as final expositors of the meaning of the statutes 
enacted pursuant to those delegated powers. Nor would the 
decision below rise to the level of a due process violation, even if its 
construction of Florida law were wrong. Consequently, the judgment 

2 

below should be affirmed. 

1. Background. On November 7, 2000, Florida citizens cast 
almost 6,000,000 ballots in the general election for President of the 
United States. Under Florida’s election law, this election’s outcome 
would determine which slate of electors would cast Florida’s twenty- 
five electoral votes for President. Fla. Stat. § 103. 

The State Elections Canvassing Commission, which ordinarily is 
composed of the Governor, the Secretary of State, and the Director 
of the Division of Elections, is charged with certifying the results of 
statewide elections based on the “total number of votes cast for 
persons for said office.” Fla. Stat. §§ 102.111(1), 102.121 (2000).1 
The State Commission bases its certification on certifications 
submitted by the individual election canvassing boards of Florida’s 
sixty-seven counties. 

Based on initial returns transmitted to it by the county canvassing 
boards on Wednesday, November 8, 2000, the Florida Division of 
Elections reported that petitioner Governor George W. Bush had 
received 2,909,135 votes for President and that respondent Vice- 
President Al Gore had received 2,907,351 votes. 

Because the margin between the two leading candidates was less 
than one-half of one percent of the total votes cast for that office, the 
provisions of Florida’s election law relating to recounts and 
certification of election results required an automatic recount of the 
ballots. Fla. Stat. § 102.141(4). The Election Code does not 
mandate any specific process for conducting this recount. Most 
counties simply repeated whatever process, usually a machine count, 
they had used to tabulate the ballots initially. Others, however, 
conducted manual recounts. At the end of this initial automatic 
recount, the margin between candidates Gore and Bush was reduced 

1 

commission. See Pet. App. at 14a n.17. 

On November 8, 2000, Florida Governor Jeb Bush removed himself from the 

3 

from the initially stated 1,784 votes to 300 votes. 

To recheck the results, Florida law provides that counties may 
conduct a further manual recount to address any “error in the vote 
tabulation which could affect the outcome of the election.” Fla. Stat. 
§ 102.166(5). Any candidate “may file a written request with the 
county canvassing board for a manual recount” “prior to the time the 
canvassing board certifies the results for the office being protested or 
within 72 hours after midnight of the date the election was held, 
whichever occurs later.” Id. § 102.166(4)(a), (b). The request must 
“contain a statement of the reason the manual recount is being 
requested.” Id. § 102.166(4)(a). 

If a county canvassing board grants a request for a manual 
recount, it need not initially order such a manual recount county-wide. 
Rather, an initial manual recount need only “include at least three 
precincts and at least 1 percent of the total votes cast for such 
candidate or issue * * * . The person who requested the recount 
shall choose three precincts to be recounted, and, if other precincts 
are recounted, the county canvassing board shall select the additional 
precincts.” Fla. Stat. § 102.166(4)(d). The statute further provides 
that: 

If the manual recount indicates an error in the vote 
tabulation which could affect the outcome of the election, the 
county canvassing board shall: 

(a) Correct the error and recount the remaining 
precincts with the vote tabulation system; 

(b) Request the Department of State to verify the 
tabulation software; or 

(c) Manually recount all ballots. 

Id. § 102.166(5) (emphasis added). 

These procedures for conducting manual recounts require that the 

4 

county canvassing board appoint counting teams of at least two 
electors who are members of different political parties. Fla. Stat. § 
102.166(7). If a counting team is unable to determine a voter’s intent 
in casting a ballot, the ballot must be “presented to the county 
canvassing board for it to determine the voter’s intent.” Id. § 
102.166(7)(a)-(b). 

After the automatic statewide recount reduced the margin 
between Governor Bush and Vice-President Gore to 300 votes, 
petitioner declined to request a manual recount in any county. The 
Florida Democratic Party requested a manual recount in four Florida 
counties: Palm Beach, Volusia, Broward, and Miami-Dade. Two 
of those counties, Palm Beach and Broward, are parties to the instant 
litigation. Pursuant to those requests and the requirements of Section 
102.166(4)(d), the county canvassing boards of those counties 
conducted a sample manual recount of one percent of the total votes 
cast in their respective counties.2 

2 

system. Voters in the counties are given a rectangular card ballot covered with 
perforated squares. 

Although the squares are numbered, the candidates’ names do not 

appear on the ballot. Voters are instructed to slide the card into a machine, which 
holds a book listing the candidates for office next to a series of holes. 

Voters are told 

Both Palm Beach County and Broward County employ a punch card balloting 

to insert a stylus into the hole next to their candidate of choice. 

The aim of the voting 

machine design is that the stylus be inserted in such a way that a “chad,” one of the 
perforated squares, is completely separated from the ballot. If this happens, a 
machine reader generally will later be able to count the votes reflected on the ballot. 
Unfortunately, a chad does not always fully separate from a ballot when punched by 
a stylus. 

The chad may only partially detach from the card, or, if the voting machine 

is old or has become clogged with chads from previous voters, the ballot may only be 
indented, or “dimpled.” The machine reader will not be able to read the ballot. Such 
uncounted ballots are called “undervotes.” 

Because of the high percentage of undervotes created by punch card voting 
systems, the vast majority of counties in Florida do not use them. In Broward 
County, the undervote in the November 7, 2000, election for President was over 6,000 
ballots. In Palm Beach County, it was 10,750 ballots. Absent a manual recount, the 
votes reflected on these ballots would not be counted in the election. 

5 

At the conclusion of those initial recounts, each of the four county 
canvassing boards determined that the sample had revealed 
tabulation discrepancies that could affect the outcome of the election 
and decided, consistent with the requirements of Section 
102.166(5)(c), to manually recount all of the ballots. 

Concerned that it would not be able to complete the full county 
recount in time, the Palm Beach County Canvassing Board, pursuant 
to Section 106.23, sought an advisory opinion from the Division of 
Elections of the Florida Department of State. The Division of 
Elections responded by issuing Advisory Opinion DE 00-10, stating 
that all county returns had to be received by November 14. 
Secretary of State Katherine Harris then issued a statement on 
Monday, November 13, announcing that she would not accept any 
county vote certifications received after 5:00 p.m. on November 14. 
On that date, she issued two further opinions. In one, she stated that 
manual recounts were authorized under Florida law only when there 
existed a software defect or mechanical error in the vote tabulation 
equipment. In the other, she asserted that undertaking statutorily 
authorized manual recounts would not excuse a failure to comply with 
the 5:00 p.m. deadline for transmitting results. Later that day, the 
Attorney General of Florida issued an opinion squarely disagreeing 
with the Secretary of State’s conclusion that a recount could be 
authorized only on the basis of a “voting tabulation error” caused by 
a defect in the machine itself. 

2. Procedural History of This Litigation. On November 13, 
2000, Volusia County, joined later by Palm Beach County, filed an 
action in the Circuit Court of the Second Judicial Circuit in Leon 
County, seeking a declaratory judgment that the county was not 
bound by the November 14, 2000, deadline set by the Secretary of 
State for submitting certified vote totals and requesting an injunction 
prohibiting the Secretary from ignoring election returns resulting from 
manual recounts authorized by Florida law but submitted after that 
date. Candidates Gore and Bush both intervened. On November 

6 

14, the Leon County Circuit Court held that, although the county 
canvassing boards were required in the first instance to comply with 
the statutory deadline, they could file supplemental returns reflecting 
the outcome of hand recounts. Pet. App. at 44a-50a. The court 
enjoined the Secretary against preemptive rejection of supplemental 
certificates, admonishing her that she could not “decide ahead of time 
what late returns should or should not be ignored,” but was instead 
required “to exercise her discretion” and “consider[] all attendant 
facts and circumstances” before deciding whether to accept revised 
or amended returns. Pet. App. at 48a-50a. The counties appealed 
this first order to the First District Court of Appeals. 

In response to the Leon County Circuit Court’s order, Secretary 
Harris issued a directive requiring that all counties intending to submit 
late returns inform her of that fact and of the reasons for the late 
returns by 2:00 p.m. on Wednesday, November 15. Four counties 
did so. The Secretary again rejected the amended returns and 
announced that she would rely on the earlier certified totals for the 
four counties. The Florida Democratic Party and Vice-President 
Gore filed a motion in the Leon County Circuit Court seeking to 
enforce that court’s prior injunction against the Secretary. On 
Friday, November 17, the Leon County court ruled that the 
Secretary’s actions had not violated the court’s injunction. Pet. App. 
at 42a-43a. The Florida Democratic Party and Vice-President Gore 
appealed this second order, and the First District Court of Appeals 
certified both appeals for immediate review by the Florida Supreme 
Court. 

3. The Florida Supreme Court. On Tuesday, November 21, 
2000, after full briefing and oral argument, the Florida Supreme 
Court issued a unanimous opinion interpreting the Florida Election 
Code and pointedly noting that “[n]either party has raised as an issue 
on appeal the constitutionality of Florida’s election laws.” Pet. App. 
at 10a n.10. The court interpreted the Florida Election Code to 
require county canvassing boards to submit their returns to the 

7 

Secretary of State by 5:00 p.m. of the seventh day following the 
election, pursuant to Section 102.111. Id. But the court eliminated 
the resulting incoherence in the statutory scheme by further holding 
that the county boards may also submit subsequent amended returns 
to reflect statutorily authorized recounts under Section 102.166, 
which the Secretary may reject only if they come so late as to 
preclude a candidate, elector, or taxpayer from contesting the 
certification of an election pursuant to Section 102.168, or to prevent 
Florida voters from participating fully in the federal electoral process 
pursuant to 3 U.S.C. §§ 1-10. Pet. App. at 33a n.55. 

The court reached this result by applying familiar principles of 
statutory construction to resolve the textual ambiguities and gaps in 
the Florida Election Code, guided by an appreciation of the 
importance of the right to vote under Florida’s constitution and laws. 
The court began by explaining that, “[w]here the language of the 
Code is clear and amenable to a reasonable and logical 
interpretation, courts are without power to diverge from the intent of 
the Legislature as expressed in the plain language of the Code.” Pet. 
App. at 23a. “[H]owever, chapter 102 is unclear concerning both 
the time limits for submitting the results of a manual recount and the 
penalties that may be assessed by the Secretary.” Id. “In light of this 
ambiguity, the Court must resort to traditional rules of statutory 
construction in an effort to determine legislative intent.” Id. at 24a. 

The ambiguity identified by the state supreme court arose from 
two Florida statutes that define the obligation of the county 
canvassing boards to transmit their certifications to the Secretary of 
State. Section 102.111 provides that county returns must be 
transmitted to the Secretary of State no later than 5:00 p.m. of the 
seventh day following the election and that any missing counties 
“shall be ignored.” (Emphasis added). By contrast, Section 
102.112(1), which the Florida legislature enacted subsequently, 
provides that any county returns not received by 5:00 p.m. on the 
seventh day “may be ignored.” (Emphasis added). 

8 

Further, Section 102.166 (the “protest” provision) grants a 
candidate the statutory right to request a manual recount at any point 
prior to certification by a canvassing board, and such action can lead 
to a full recount of all votes in the county. The Florida Supreme 
Court observed that “logic dictates that the period of time required 
to complete a full manual recount may be substantial, particularly in 
a populous county, and may require several days.” Pet. App. at 21a. 
The court held that the protest provision thus conflicted with any 
reading of Section 102.111 that imposed an unalterable deadline. 
“For instance, if a party files a pre-certification protest on the sixth 
day following the election and requests a manual recount and the 
initial recount indicates that a full countywide recount is necessary, the 
recount procedure in most cases could not be completed by * * * 
5:00 p.m. of the seventh day following the election.” Pet. App. at 
21a. 

The Florida Supreme Court applied four traditional canons of 
construction to resolve the ambiguity of the Election Code: “First, it 
is well-settled that where two statutory provisions are in conflict, the 
specific statute controls the general.” Pet. App. 24a n.42 (citing 
State ex rel. Johnson v. Vizzini, 227 So. 2d 205 (Fla. 1969)). The 
court found that Section 102.111 (the “shall” provision) addresses 
the general makeup and duties of the Elections Canvassing 
Commission, and “only tangentially addresses the penalty for 
returns filed after the statutory date.” Id. at 25a. Section 102.112 
(the “may” provision), by contrast, “constitutes a specific penalty 
statute that defines both the deadline for filing returns and the 
penalties for filing returns thereafter * * * .” Id. (Emphasis added). 

“Second, it is also well-settled that when two statutes are in 
conflict, the more recently enacted statute controls the older statute.” 
Pet. App. at 25a (citing McKendry v. State, 641 So. 2d 45 (Fla. 
1994)). Section 102.112 (“may”) was enacted in 1989; Section 
102.111 (“shall”) was enacted almost four decades earlier, in 1951. 

9 

Id. 

“Third, a statutory provision will not be construed in such a way 
that it renders meaningless or absurd any other statutory provision.” 
Pet. App. at 26a. Section 102.112 contains a detailed provision 
authorizing the assessment of fines against the members of a dilatory 
county canvassing board. “If, as the Secretary asserts, the 
Department were required to ignore all returns received after the 
statutory date, the fine provision would be meaningless.” Id. “For 
example, if a Board simply completed its count late and the returns 
were going to be ignored in any event, what would be the point in 
submitting the returns? The Board would simply file no returns and 
avoid the fines. But, on the other hand, if the returns submitted after 
the statutory date would not be ignored, the Board would have good 
reason to submit the returns and accept the fines.” Id. at 24a-25a. 

“Fourth, related statutory provisions must be read as a cohesive 
whole.” Pet. App. at 25a (citing Sun Ins. Office, Ltd. v. Clay, 133 
So. 2d 735 (Fla. 1961)). The court held that reading Section 
102.111 as an iron-clad deadline would conflict with the protest right 
provided in Section 102.166, because in many cases a full manual 
recount obviously could not be completed by 5:00 p.m. on the 
seventh day after the election. Id. at 26a. In addition, overseas 
ballots cannot be counted until after the seven-day deadline has 
expired. Id. at 27a. 

Based on these principles, the court held that the permissive 
language of Section 110.112 necessarily superseded the apparently 
mandatory language of Section 102.111. See Pet. App. at 2a n.1. 
The court explained that “we have used traditional rules of statutory 
construction to resolve these ambiguities to the extent necessary to 
address the issues presented here. We decline to rule more 
expansively, for to do so would result in this Court substantially 
rewriting the Code. We leave that matter to the sound discretion 
of the body best equipped to address it – the Legislature.” Id. at 

10 

37a (emphasis added). 

Having determined that the Secretary was permitted to accept 
returns filed after the deadline, and in light of the importance of the 
right to vote under the Florida Constitution, Pet. App. at 29a, the 
court also determined the scope of the Secretary’s discretion to 
“ignore” returns submitted after the seven-day period for initial 
certification. The court concluded that, under the statutory scheme,3 
the manual recounts should be “allowed to proceed in an expeditious 
manner.” Id. at 32a. It noted that – as all must concede – 
“[i]gnoring the county’s returns is a drastic measure,” id., and it held 
that the Secretary’s discretion to reject “amended returns that would 
be the result of ongoing manual recounts” provided for by state law, 
id. at 34a, was limited to “returns * * * submitted so late that their 
inclusion will preclude a candidate from contesting the certification or 
preclude Florida’s voters from participating fully in the federal 
election process.” Id. at 35a. 

The court invoked its standard equitable powers to ensure the 
counting of all lawfully cast votes while allowing adequate time to 
satisfy Florida’s contest provisions and federal electoral college 
deadlines. Pet. App. at 37a-38a. After noting that the court at oral 
argument had inquired whether the presidential candidates were 
interested in the court’s consideration of reopening the opportunity 
for recounts in additional counties, and that neither candidate had 
requested such an opportunity, id. at 38a n.56, the court set 
deadlines designed to protect the interests of candidates in contesting 
certification, and the interests of Florida’s voters in being able to 

3 

certifications and that she does not apply that deadline to overseas absentee ballots. 
Although the Secretary contends that she is required to accept such ballots for ten 
days after the election because of federal law, both Florida law and federal law require 
that absentee ballots be received by the date of the election. 

See Fla. Stat. § 101.67; 

In fact, the Secretary admits both that she has discretion not to reject untimely 

42 U.S.C. §§ 1973aa-1, 1973ff-2. See note 22, infra. 

11 

participate in the electoral college process. Specifically, the court 
ruled that the Secretary should accept amended certificates reflecting 
manual recounts if they were filed by 5:00 p.m. on Sunday, 
November 26. 

On November 22, the Miami-Dade County Canvassing Board 
announced that it would not conduct a manual recount because it 
could not comply with the November 26 deadline. On November 
26, the Secretary of State denied a request by the Palm Beach 
County Canvassing Board for an extension until the morning of 
November 27 to complete its manual recount. Palm Beach County 
then submitted the results of its partially completed manual recount, 
which the Secretary refused to accept. At approximately 7:30 p.m. 
on November 26, 2000, the Secretary of State certified that George 
W. Bush had received 2,912,790 votes in Florida and Al Gore, Jr., 
2,912,253 – a difference of 537 votes. 

SUMMARY OF ARGUMENT 

This dispute over the Florida Supreme Court’s interpretation of 
the Florida Election Code is a state-law case that, despite its 
undoubted importance, does not belong in federal court. The 
process legislatively adopted by Florida for resolving disputes 
regarding the appointment of electors includes state judicial review. 
Principles of federalism counsel strongly against interference by this 
Court, or any federal court, in that process. The federal claims 
purportedly presented by petitioner are insubstantial. 

I. The entire petition rests on intemperate and insupportable 
mischaracterizations of the Florida Supreme Court’s decision as 
usurping the role of the state legislature. In fact, the Florida court 
played a familiar and quintessentially judicial role: it interpreted 
Florida law “us[ing] traditional rules of statutory construction to 
resolve [statutory] ambiguities.” Pet. App. at 37a. Hence, this case 
does not in fact present the first two questions framed by petitioner. 

12 

II. Even if the Florida Supreme Court’s decision could be said 
to have “enact[ed]” new law (first Question Presented) or to be 
irreconcilable “with state statutes enacted before the election was 
held” (second Question Presented), the court’s decision did not 
violate 3 U.S.C. § 5 for the simple reason that Section 5 does not 
impose any mandate or requirement on the States – nor could it do 
so consistent with Article II, § 1 or settled principles of federalism. 
Properly understood, Section 5 merely offers the States a safe harbor 
with respect to a hypothetical controversy that has not yet arisen – a 
dispute over electors that might arise before Congress when the 
electoral votes are counted. Accordingly, apropos the additional 
question framed by this Court, there can be no judicial remedy for 
failure to comply with Section 5. 

III. In any event, the Florida Supreme Court’s decision complies 
with 3 U.S.C. § 5. Section 5 offers a safe harbor to determinations 
that are made “by judicial or other methods or procedures” 
“provided[] by laws enacted prior to” election day. Florida meets 
this test because it has long provided, under laws enacted prior to 
November 7, 2000, for judicial resolution of disputes regarding 
questions of state law, including those relating to the appointment of 
presidential electors. 

IV. The Florida Supreme Court’s decision also is entirely 
consistent with Article II, § 1, cl. 2 of the United States Constitution, 
which provides that “Each State shall appoint” electors “in such 
Manner as the Legislature thereof may direct.” 
This provision neither 

displaces the state judiciary nor forbids it from undertaking statutory 
interpretation pursuant to state law. Thus, where a state legislature 
has enacted an election code (as Florida has), nothing in Article II, 
§ 1, cl. 2 prevents the state courts from playing whatever interpretive 
role state law grants to them. 

V. Finally, nothing in the Florida Supreme Court’s decision raises 

13 

due process concerns of “retroactive” changes in state law. To the 
contrary, due process is furthered by ensuring, as the Florida 
Supreme Court has attempted to do, that as many votes as possible 
are fairly and accurately counted. 

ARGUMENT 

I. THE FLORIDA SUPREME COURT’S DECISION DID 
NOT ABROGATE EXISTING FLORIDA STATUTORY 
LAW. 

Petitioner’s claims – under 3 U.S.C. § 5, Article II, and the Due 
Process Clause – are all premised on his thesis that the Florida 
Supreme Court retroactively altered the Florida legislature’s scheme 
for counting ballots cast in the presidential election. As we will 
demonstrate below, these provisions of federal law are not bases for 
invalidating a construction of state law by the state courts with which 
petitioner, or even this Court, disagrees. Petitioner’s repeated 
attempts to persuade this Court that the Florida Supreme Court 
misapplied state law, e.g., Reply Br. On Pet. for Certiorari 
[hereinafter “Pet. Rep.”] at 6 (state court decision “deviate[d]” from 
state law), accordingly, cannot state the basis for a federal claim. 

But 

before exploring the weakness of petitioner’s specific claims, we 
address the assumption that underlies all of petitioner’s Questions 
Presented – namely, that the decision of the Florida Supreme Court 
somehow created a “new legal rule” that amended Florida law in 
“retroactive” fashion. That is simply not so. The decision by the 
Florida Supreme Court was an ordinary exercise in statutory 
interpretation, admittedly dealing with an important and hotly 
contested issue, but one governed by state laws that long antedate 
this election. The decision therefore could not be the sort of “new 
legal rule” that could possibly offend the Due Process Clause or 
Article II, § 1, cl. 2, or take Florida out of the safe harbor of 3 
U.S.C. § 5. 

14 

Whether one agrees or disagrees with the decision as a matter of 
Florida law, it cannot be denied that the court applied ordinary 
principles of judicial interpretation to a complex statutory scheme. 
The state supreme court addressed the seven-day deadline for filing 
certified results set out in Sections 102.111 and 102.112, seeking to 
resolve a patent conflict between one provision saying that returns 
filed after seven days “shall” be ignored and another saying that those 
returns “may” be ignored. Reading Section 102.111 to create an 
absolute, inflexible deadline, the court held, would do violence to 
Section 102.112, which is the later-enacted, more specific provision 
addressing both the deadline for filing returns and the penalties for 
filing returns thereafter. 

It would be incorrect as a matter of4 

statutory interpretation to override Section 102.112 with the earlier, 
more general provision of Section 102.111, which is directly 
concerned not with the deadline for filing returns but rather with 
establishing the general makeup and duties of the Elections 
Canvassing Commission. Further, reading Section 102.111 as an 
absolute, exceptionless deadline would render meaningless, said the 
court, the detailed provision in Section 102.112 authorizing the 
assessment of fines against the members of a dilatory county 
canvassing board. Such a reading would also conflict with the 
statutory protest right provided in Section 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. 

And it would conflict with 

the Secretary of State’s discretion to accept late-filed returns. The 
court accordingly gave credence to the more specific, more recently 
enacted provision, utilizing canons of construction certainly familiar to 
and routinely relied on by this Court. See Pet. App. at 24a-25a. 

4 

Petitioner’s view that Section 102.112 is restricted to the circumstances of 

Chappell v. Martinez, 536 So. 2d 1007 (Fla. 1988) (see Pet. at 14 n.3), is belied by 
the very text of Section 102.112, which is obviously not so limited. 

In any event, the 

Florida Supreme Court’s decision finding this state-law argument unpersuasive is 
hardly extraordinary. 

15 

The court relied upon the plain text of the statute, and in 
particular its statement that the “official return of the election” must 
include “write-in, absentee and manually counted results.” Pet. App. 
at 27a-28a. Accordingly, the court concluded that, although the 
county canvassing boards are required to submit their returns by 5:00 

p.m. on the seventh day following the election, the Secretary was not 
required to ignore supplemental certifications after that date. Rather, 
the court held, under Section 102.112, she was merely permitted to 
ignore supplemental certifications filed after that date. Id. at 28a. 

The court then addressed the scope of the Secretary’s discretion 
to ignore such supplemental certifications. It concluded, in light of the 
state constitution 
and the provisions outlining detailed procedures for5 

manual recounts, that the Secretary’s discretion to ignore the results 
of those manual recounts was limited. Pet. App. at 28a-34a. It 
found that she lacked discretion to ignore supplemental certifications 
of returns that are submitted late solely “because the Board is acting 
in conformity with other provisions of the Code,” see id. at 36a, 
unless the returns are submitted too late for Florida to make the 

5 

protection of the right to vote. See, e.g., Beckstrom v. Volusia County 
Canvassing Bd., 707 So.2d 720, 725 (Fla. 1998) (recognizing that the “will of the 
voters” is paramount); Chappell v. Martinez, 536 So.2d 1007 (Fla. 1988) (because 
right to vote is guaranteed by constitution, mere technical noncompliance cannot 
justify a refusal to count validly cast votes); Boardman v. Esteva, 323 So. 2d 259, 
263 (Fla. 1975) (“[t]he right to vote is the right to participate; it is also the right to 
speak, but more importantly the right to be heard.”); Barancik v. Gates, 134 So. 2d 
497, 499-500 (Fla. 1961) (right to vote is the “keystone in the arch of liberty.”); 
Special Tax Sch. Dist. v. Florida, 123 So. 2d 316, 323 (Fla. 1960) (election 
statutes must be construed in favor of the voter); State ex rel. Titus v. Peacock, 
170 So. 309 (Fla. 1936) (ballots cast by qualified voters not to be thrown out if 
capable of being given proper effect); State v. Gibbs, 13 Fla. 55, 7 Am. Rep. 233 
(1869) (when legal returns are received by state board of canvassers at any time before 
canvass is complete, which could have been counted if received on the day appointed 
by law, those votes must be counted). 

The Florida Constitution has long been interpreted as guaranteeing vigorous 

16 

federal December 12 deadline. 

The act of interpreting and reconciling ambiguous or apparently 
conflicting statutory provisions is an exercise with which this Court is 
thoroughly familiar and has never been regarded as the “making” of 
law exceeding the bounds of the judicial role. 

See, e.g., United6 

States v. Estate of Romani, 523 U.S. 517, 534 (1998) (examining 
“how Congress would want the conflicting statutory provisions to be 
harmonized”); District of Columbia v. Pace, 320 U.S. 698, 702 
(1944) (confronting the conflicting provisions of a District of 
Columbia statute and deferring to the conclusion of the United States 
Court of Appeals for the District of Columbia); United States v. 
American Trucking Ass’n, 310 U.S. 534, 543 (1940) (observing 
that the Court often “has followed th[e] purpose, rather than the 
literal words” of legislation (footnote omitted)); J.C. Penney Co. v. 
Commissioner, 312 F.2d 65, 66 (CA2 1962) (Friendly, J.) (“[I]t is 
as clear as anything ever can be that Congress did not mean what in 
strict letter it said”).7 

6 

“Anything that is written may present a problem of meaning, and that is the 

essence of the business of judges in construing legislation.” 
Felix Frankfurter, Some 

Reflections on the Reading of Statutes, 47 COLUM. L. REV. 527, 528 (1947). 
Thus, Judge Learned Hand was able to reject administrative interpretation and 
subsequent legislative action in construing a disputed portion of the Selective Training 
and Service Act of 1940, ch. 720, § 8(b), 54 Stat. 885, 890 (expired 1947), because 
“upon the courts rests the ultimate responsibility of declaring what a statute means.” 
Fishgold v. Sullivan Drydock & Repair Corp., 154 F.2d 785, 790 (CA2), aff’d, 
328 U.S. 275 (1946). 

The Florida Supreme Court’s interpretation of Florida’s election law is no 

7 

different from this Court’s interpretation of many federal statutes, interpretations that 
have often become the target of the rejected criticism that the Court is “making” law. 
See, e.g., Green v. Bock Laundry Mach. Co., 490 U.S. 504, 510 (1989); id. at 527- 
28 (Scalia, J., concurring); id, at 531-32 (Blackmun, J., dissenting); FDA v. Brown & 
Williamson Co., 120 S. Ct. 1291, 1306 (2000) (“Considering the FDCA as a whole, 
it is clear that Congress intended to exclude tobacco products from the FDA’s 
jurisdiction.”); id. at 1316-25 (Breyer, J., dissenting); West Virginia Univ. Hosps. 

v. Casey, 499 U.S. 83, 93-97 (1987); id. at 115 (Stevens, J., dissenting); Christensen 

17 

The text-oriented canons of construction on which the Florida 
Supreme Court relied are garden variety interpretive rules “designed 
as short-cuts to the discovery of the legislature’s ‘true’ intent.” 
They8 

are “commonsensical” linguistic and syntactic guides for finding9 
meaning in statutory text as illuminated by “principles that involve 
predictions as to what the legislature must have meant, or probably 
meant, by employing particular statutory language.” 
Such canons 

10 

effectuate the legislation’s purpose; they do not create new law. 
Hence, this Court has recognized that employing these canons does 
not constitute forbidden judicial lawmaking, for they are merely “part 

v. Harris County, 120 S. Ct. 1655, 1661 (2000) (interpreting statute in context of 
overall statutory scheme and finding Secretary’s interpretation unreasonable); BFP 

v. Resolution Trust Corp., 511 U.S. 531, 546-48 (1994); id. at 549-57 (Souter, J., 
dissenting); Chisom v. Roemer, 501 U.S. 380, 395-400 (1991); id., at 404-09 (Scalia, 
J., dissenting); Babbitt v. Sweet Home Chapter of Communities, 515 U.S. 687, 
698-704 (1995); id. at 709-11 (O’Connor, J., concurring); id. at 715-21 (Scalia, J., 
dissenting); McNally v. United States, 483 U.S. 350, 355-60 (1987); id. at 361 
(Stevens, J., dissenting). 

Daniel B. Rodriguez, The Presumption of Reviewability: A Study in 

8 

Canonical Construction and its Consequences, 45 VAND. L. REV. 743, 743 
(1992). See generally William N. Eskridge, Jr., and Phillip P. Frickey, CASES AND 

MATERIALS ON LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY 634-716 
(2d ed. 1995); William N. Eskridge, Jr., DYNAMICSTATUTORYINTERPRETATION(1994); 
Otto J. Hetzel et al., LEGISLATIVE LAW ANDPROCESS: CASES ANDMATERIALS 389-91, 
622-702 (2d ed. 1993); Cass R. Sunstein, AFTER THE RIGHTS REVOLUTION: 
RECONCEIVING THE REGULATORY STATE 150-57 (1990). 

Antonin Scalia, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 

9 

26 (1997). See also Antonin Scalia, Judicial Deference to Administrative 
Interpretations of Law, 1989 DUKE L.J. 511, 514 (“[T]he ‘traditional tools of 
statutory construction’ include not merely text and legislative history but also, quite 
specifically, the consideration of policy consequences * * * . [O]ne of the most 
frequent justifications courts give for choosing a particular construction is that the 
alternative interpretation would produce * * * results less compatible with the reason 
or purpose of the statute.”). 

Stephen F. Ross, Where Have You Gone, Karl Llewellyn? Should 

10 

Congress Turn its Lonely Eyes to You?, 45 VAND. L. REV. 561, 563 (1992). 

18 

of the established background of legal principles against which all 
enactments are adopted, and which all enactments (absent contrary 
indication) are deemed to accept.” Wisconsin Dept of Revenue v. 
William Wrigley, Jr., Co., 505 U.S. 214, 231 (1992) (per Scalia, 
J.); United States Dept of Energy v. Ohio, 503 U.S. 607, 615 
(1992) (noting assumed legislative familiarity with canons); 
Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253 (1992) 
(“canons of construction are no more than rules of thumb that help 
courts determine the meaning of legislation”). 

Nor, of course, were these canons of construction newly minted 
by the Florida Supreme Court. Long before the instant election, that 
court was established as the supreme expositor of Florida law. See, 

e.g., Dade County Classroom Teachers Ass’n v. Legislature of 
the State of Fla., 269 So. 2d 684, 686 (Fla. 1972) (“The doctrine 
of judicial authority and responsibility was early established in the 
historic case of Marbury v. Madison, 5 U.S. (1 Cranch) 137 
(1803).”). Accordingly, the Florida Supreme Court has been the 
entity charged by the people of Florida with the task of interpreting 
ambiguous or conflicting provisions of the Florida Election Code. 
For example, in State ex rel. Drew v. McLin, 16 Fla. 17 (1876), the 
Florida Supreme Court construed, in the context of a post-election 
contest, the power of the Florida Board of State Canvassers under 
an 1868 statute and issued a writ of mandamus compelling the state 
board to meet and include votes of certain counties. Similarly, in 
State ex rel. Knott v. Haskell, 72 So. 651 (Fla. 1916), the state 
supreme court granted a writ of mandamus to require county election 
commissioners to perform a recount in the primary election for the 
Democratic gubernatorial nominee. 

In State ex rel. Peacock v. 

11 

11 

been precluded once the ballots had been delivered in a sealed ballot box to the 
Supervisor of Registration. 72 So. at 659. The court considered several provisions of 
the Election Code and concluded that “[t]he general election law contains no evidence 

The court rejected a statutory construction under which a recount would have 

19 

Latham, 170 So. 475, 478 (Fla. 1936), the court held that a statute 
setting a twenty-day deadline for the submission of names of 
nominated candidates did not apply when election officials had failed 
to properly count and return the ballots cast in the primary election. 

12 

In State ex rel. Andrews v. Gray, 125 Fla. 1 (1936), the court held 

whatever of a legislative purpose to make the first determination of a board of 
inspectors to be forever final, notwithstanding such determination may have been 
induced by fraud or reached by disregarding the requirements of the statute or arrived 
at by the grossest and most flagrant errors, mistakes and misconception of duty, and, 
in the absence of such legislative purpose, we think that it would be the duty of the 
court in a proper case by writ of mandamus to order the inspectors to make their 
returns and certificates speak the truth if by any possibility it could be accomplished.” 
Id. at 660. 

“The statute involved here must be considered in paria materia with other 

12 

statutes governing the holding of Primary Elections * * * . A deviation from the 
proper performance of the duties of the election officials, as in this case, may so 
frustrate the contemplated orderly procedure as to make inapplicable provisions of 
this statute which would otherwise be held to be mandatory.” 170 So. at 478. “The 
duties of a State Canvassing Board of Primary Elections are * * * ministerial. 
Under 

the Primary Election Law of this State the vote actually cast determines the rights of 
the candidates. 

If the vote actually cast is through error or fraud, by accident or design 

incorrectly returned so that a candidate may be deprived of his rights it is difficult to 
understand how it can reasonably be urged that no power exists to correct the error.” 
Id. at 479. See also Beckstrom v. Volusia County Canvassing Bd., 707 So. 2d 
720, 726 (Fla. 1998) (holding that election code prohibited county practice of re- 
marking ballots for optical scanner, “even though the process was widely used, 
recommended by the manufacturer’s representative, and approved by the state 
Division of Elections”); State ex rel. Chappell v. Martinez, 536 So. 2d 1007, 1009 
(Fla. 1988) (holding that seven-day deadline of Section 102.111 was satisfied when 
county transmitted election results telephonically to Secretary of State within seven 
days after the election, even though vote counts were not received in writing prior to 
deadline); State ex rel. Fair v. Adams, 139 So. 2d 879, 883-84 (Fla. 1962) 
(interpreting state statutes to determine that a ballot containing the name of the same 
individual as a candidate for several offices was illegal, while conceding that “neither 
our constitutional prohibition nor statutory oath requirement expressly precludes a 
candidate from seeking numerous offices”); McConihe v. State ex rel. McMurray, 
17 Fla. 238 (1879) (ordering an election to be held after the time prescribed by statute 
for the holding of the election had passed). 

20 

that the state judiciary retains the power to reconcile apparently 
conflicting election statutes by “supplement[ing] the intendments of 
the positive words, fill[ing] in the vacant spaces, and * * * 
correct[ing] uncertainties and harmoniz[ing] results with justice 
through a method of judicial decision.” Id. at 18. The court 
observed, “You may call this process legislation, if you will. In any 
event, no system of jus scriptum has been able to escape the need 
of it.” Id. at 19-20. See also Advisory Opinion to Governor, 157 
Fla. 885, 889 (1946), 27 So. 2d 409 (judicial interpretation of laws 
governing replacement of Senator who died in office necessary where 
statutes produced only “hopeless confusion”); cf. James B. Beam 
Distilling Co. v. Georgia, 501 U.S. 529, 549 (1991) (Scalia, J., 
concurring in judgment) (“I am not so naive (nor do I think our 
forebearers were) as to be unaware that judges in a real sense 
‘make’ law. But they make it as judges make it, which is to say as 
though they were ‘finding’ it--discerning what the law is, rather than 
decreeing what it is today changed to, or what it will tomorrow be.”) 

Indeed, the Florida legislature has itself plainly acquiesced in state 
judicial resolution of election disputes in presidential elections. In 
Section 102.171, it provided that the legislature, not the courts, 
should resolve disputes involving elections of state legislators. By 
contrast, it assigned to the courts the duty of resolving all other 
election disputes, including those arising in presidential elections. See 
Fla. Stat. § 102.168(1). 

Nor is it relevant that the Florida Supreme Court was not asked 
to resolve the particular ambiguities and conflicts within the Florida 
Election Code at issue here until after November 7. It is quite typical 
for interpretations of state electoral law to be made after the election 
has been held. See, e.g., State ex rel. Peacock v. Latham, 170 
So. 2d 475, 478 (Fla. 1936); State ex rel. Knott v. Haskell, 72 So. 
651 (Fla. 1916); State ex. rel. Drew v. McLin, 16 Fla. 17 (1876). 
Indeed, most disputes about the meaning of a law arise only after an 
event takes place whose significance under that law is contested. 

21 

State courts as well as attorneys general are routinely called upon to 
interpret and construe state election laws to resolve post-election 
disputes. Permitting state courts to interpret their laws – in ways 

13 

that will, by definition, disappoint one or another litigant – does not 
violate either 3 U.S.C. § 5, even under petitioner’s strained reading, 
or the federal Constitution. At bottom, petitioner’s contention is that 
the Florida Supreme Court committed an error in interpeting state 
law. This argument does not describe post-election judicial 
legislation. 

Although petitioner’s attack on the supposed usurpation of 
lawmaking authority by the Florida Supreme Court is, to be sure, 
hitched to the wagon of Article II and Title 3, its basic thrust reaches 
well beyond those sources of law. Not to rebuff that attack 
decisively would cast a shadow of illegitimacy over much of the 
indispensable and wholly lawful work of this Court and of state and 
federal courts throughout the nation. 

II. TITLE 3, SECTION 5 PROVIDES ONLY A RULE FOR 
DETERMINING WHETHER A STATE’S ELECTORS 
SHALL BE SUBJECT TO CHALLENGE BEFORE 
CONGRESS; IT DOES NOT PROHIBIT ANY ACTION 
OR DECISION BY A STATE. 

Petitioner argues that the decision of the Supreme Court of 
Florida “violates” the “federal mandate” contained in 3 U.S.C. § 5, 
which, he has represented to this Court, “requires States to resolve 
any disputes over the appointment of electors by exclusive reference 
to state laws ‘enacted prior to’ election day.” Pet. Rep. at 2 (quoting 
3 U.S.C. § 5). This Court has accordingly directed the parties to 

13 

ex rel. Dahlman v. Piper, 69 N.W. 378 (Neb. 1896); Woods v. Sheldon, 69 N.W. 
602 (S.D. 1896); Miss. Op. Att’y Gen. No. 1999-0697 (Dec. 22, 1999), 1999 WL 
1333481; Tex. Op. Att’y Gen. No. JC-0293 (Oct. 11, 2000), 2000 WL 1515422; Ark. 
Op. Att’y Gen. No. 94-366 (Nov. 21, 1994), 1994 WL 702001. 

See, e.g., State ex rel. Stephens v. Marsh, 221 N.W. 708 (Neb. 1928); State 

22 

brief and argue the question of what the “consequences [would be] 
of this Court’s finding that the decision of the Supreme Court of 
Florida does not comply with 3 U.S.C. Sec. 5.” See Bush v. Palm 
Beach County Canvassing Bd., No. 00-836 (Nov. 24, 2000) 
(Order granting certiorari). 

A. SECTION 5 IS A SAFE HARBOR OPTION, NOT A 

MANDATE 

As its plain language reveals, 3 U.S.C. § 5 does not contain any 
“mandate” or legal prohibition; it does not “require” anyone to do 
anything. Instead, it purports to set out a rule by which the Houses 
of Congress shall determine which electors for President of the 
United States from a particular State will be entitled to have their 
votes counted if more than one return purporting to contain the 
electoral votes of that State is received by the President of the 
Senate. Tellingly, the State’s own legislature, appearing as an 
amicus before this Court, has rejected petitioner’s reading of Section 

5. 

The statute provides that “if” certain rules are followed by a State 
in making its “final determination of any controversy or contest 
concerning the appointment of all or any of the electors of such State 

* * * such determination * * * shall be conclusive, and shall govern 
in the counting of the electoral votes as provided in the Constitution, 
and as hereinafter regulated, so far as the ascertainment of the 
electors appointed by such State is concerned.” 3 U.S.C. § 5. The 
regulation “hereinafter” to which the statute refers is 3 U.S.C. § 15, 
which announces a rule by which the Houses of Congress will decide 
which electors’ votes to count when the President of the Senate 
receives “more than one return or paper purporting to be a return 
from a State.” 3 U.S.C. § 15. In such a case, Section 15 provides 
that “those votes, and those only, shall be counted which shall have 
been regularly given by the electors who are shown by the 
determination mentioned in section 5 of this title to have been 

23 

appointed, if the determination in said section provided for shall have 
been made.” Id. 

The language of 3 U.S.C. § 5 thus provides a safe harbor for the 
State’s “final determination” of who its electors are, protecting them 
from subsequent challenge before the Houses of Congress if that final 
determination is made “by judicial or other methods or procedures” 
“provided[] by laws enacted prior to” election day. 3 U.S.C. § 5. 
It does not require the States to follow any procedure with respect 
to determining who its electors are, nor does it prohibit any such 
procedure. But it does contemplate the exact course of events 
followed here – a law set before election day, and the resolution of 
those disputes occurring after election day through “judicial” 
“methods” under that law. 

The legislative history of 3 U.S.C. § 5 confirms this 
understanding. That history establishes conclusively 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. 

Both Sections 5 and 15 of Title 3 were a direct reaction to the 
Hayes-Tilden debacle of 1877 in which multiple sets of presidential 
electors from Florida, Louisiana, and South Carolina claimed 
legitimacy and sought to have Congress count their votes. 

Given that 

the electoral college tally was exceedingly close (Samuel Tilden 
needed only a single electoral vote to prevail), the choice would 
determine the outcome of the election. But federal law at that time 
did not specify how such conflicting claims should be resolved, a 
circumstance that raised the realistic prospect of renewed civil war. 
The matter was referred to a commission that included five Justices 
of this Court and was ultimately resolved through a compromise in 
which Democrats acquiesced in the counting of votes in favor of 
Hayes in exchange for a promise that federal troops supporting 

24 

Republican governments in South Carolina and Louisiana would be 
withdrawn, allowing Democratic governments to be seated, and 
effectively ending Reconstruction. 

14 

Congress debated for more than a decade how to avoid a reprise 
of the Hayes-Tilden incident. The solution adopted, as contemporary 
commentators recognized, was to permit the States themselves to 
adopt procedures that would ensure that their electors were properly 
identified. Thus, under Section 5 as enacted, “Congress does not 
command the states to provide for a determination of the 
controversies or contests that may arise concerning the appointment 
of the electors, does not even declare it to be the duty of the states 
to do so, but simply holds out an inducement for them so to act.” 
John W. Burgess, The Law of the Electoral Count, 3 POL. SCI. Q. 
633, 635 (1888) (emphasis added); see also Haworth, supra, at 
305-06 (law “provides that a state may finally determine every 
contest connected with the choice of electors, but that such 
determination must be made in accordance with a law passed before 
the electors are chosen and that the decision must have been made 
at least six days before the meeting of the electors. Where such a 
determination has been made, it must be accepted * * * .”). The 
legislative history specifically reflects a recognition that a State was 
free not to take advantage of Section 5’s safe harbor, with the only 
implication being that the State’s electors would be subject to 
challenge in the Congress. According to the Senate Report on the 

14 

peace or war, the existence of the United States, the election of a President,” 17 CONG. 
REC. 1023 (Feb. 1, 1886) (statement of Sen. Sherman), it was essential to take “this 
question out of the political cauldron.” 15 CONG. REC. 5079 (June 12, 1884) 
(statement of Rep. Browne). See generally Paul L. Haworth, THE HAYES-TILDEN 
DISPUTEDPRESIDENTIALELECTION OF1876(1906);Keith I. Polakoff,THEPOLITICSOF 
INERTIA: THE ELECTION OF 1876 AND THE END OF RECONSTRUCTION (1973); C. Vann 
Woodward, REUNION AND REACTION: THE COMPROMISE OF 1877 AND THE END OF 

RECONSTRUCTION (1951). 

Congress recognized that, because a similar conflict over electors could “affect 

25 

bill published in the Congressional Record: 

In those States where a tribunal has been established, under 
the laws thereof, for the determination of contests concerning 
the appointment of electors therein, and such tribunal has 
decided what electors were duly appointed, the 
determination of the State tribunal shall be conclusive. * * * 
Congress having provided by this bill that the State tribunals 
may determine what votes are legal coming from that State, 
and that the two Houses shall be bound by this 
determination, it will be that State’s own fault if the 
matter is left in doubt. 

18 CONG. REC. 30 (Dec. 7, 1886) (emphasis added) (report by 
Select Committee on the Election of President and Vice-President, 
accompanying Senate Bill 9). 

15 

Indeed, supporters of the bill took great care to address and 
refute without contradiction precisely the construction of Section 5 
that petitioner now erroneously presses 110 years later. These 
supporters explained that the statute could not result in the 
invalidation of a State’s votes but provided only a safe harbor against 
a challenge in Congress to the State’s slate of electors. As 
Representative Herbert explained: 

[T]he Senate bill does not undertake to interfere in any 
manner whatever * * * with the right of a State absolutely to 

15 

(“If the States will not dutifully exercise their own powers, so that their rights can not 
be abridged, they can not justly complain if the two Houses, [having] met to count 
their votes, are unable to agree as which of two sets of electors are the rightful 
representatives of the electoral powers of such States. If the vote is lost in such cases, 
the fault is wholly with the State.”); id. at 1023 (Feb. 1, 1886) (statement of Sen. 
Hoar) (“The bill says, therefore, that in case the State declines to appoint any other 
tribunal and chooses to leave it on the governor’s certificate, we will leave it where the 
State has left it.”). 

See also, e.g., 17 CONG. REC. 867 (Jan. 25, 1886) (statement of Sen. Morgan) 

26 

choose its electors * * * . The Senate bill does not interfere 
with the election at all nor with the right of election. 

It simply 

undertakes to lay down a mode in which it shall be 
ascertained who has been chosen. That is all. It undertakes 
simply to legislate with reference to the rules of evidence by 
which it shall be ascertained what the State has done, 
what electors the State has appointed. * * * [T]he power 
of the voters is absolute to choose whom they please, but this 
absolute power of election is not at all inconsistent with the 
right resting here to decide who has been chosen. You must 
separate between the right to choose and the right to 
decide who has been chosen. 

15 CONG. REC. 5547 (June 24, 1884) (emphasis added). And 
Representative Eden made virtually the identical point: 

The States are entirely free under the Constitution to adopt the 
mode of appointment of electors that the legislatures thereof may 
prescribe. This bill only provides that if the States shall have 
settled all controversies relative to the appointment of electors, 
within a given time before the meeting of the electors and by a 
tribunal of its own selection, the votes of the electors thus 
appointed and regularly given shall be counted. If any State 
neglects to use the means within its power to identify who are its 
legally appointed electors, the two Houses of Congress, when in 
joint meeting to count the electoral vote, are to resort to other 
provisions of the bill to determine who are the legally appointed 
electors of the State. The bill contemplates no exclusion of 
electoral votes from the count because of the failure of a 
State to settle disputes as to the lawful vote of the State. 

18 CONG. REC. 75 (Dec. 9, 1886) (emphasis added). 

There is no 

16 

16 

(“But there may be, and possibly will be, times when it may be necessary to 

See also, e.g., 17 CONG. REC. 1060-61 (Feb. 2, 1886) (statement of Sen. Teller) 

27 

question that Congress fully understood and embraced this 
understanding of Section 5. Burgess, supra, at 637 (“The majority 
of the House was however finally made to comprehend that this 
provision was no interference by Congress with the right of the states 
to appoint their electors in such manner as they might determine, but 
was only a notice to the states as to what evidence Congress would 
accept from a state as conclusive in case a contest should arise in 
that body concerning the counting of the electoral vote of a state.” 
(emphasis in original)). 

17 

Petitioner’s contrary rendition of the legislative history, see Pet. 
at 12-13 and Pet. Rep. at 2, rests on a total misreading of a 
statement by one member of the House. In the remarks quoted by 
petitioner, Representative Cooper merely addressed opponents’ 
“object[ion] * * * to the phrase ‘enacted prior to the day,’” asserting 
that it was essential that the state “legislature [not] be permitted to 
meet concurrently with the contesting electors and provide a method 
of deciding the contest at the time the contest is proceeding.” 18 

CONG. REC. 47 (Dec. 8, 1886). But Representative Cooper never 
suggested that the statute would, as petitioner supposes, invalidate 
the selection of electors made under law enacted after the date of the 
election, or permit this Court to strike down whatever state action 
had allegedly taken the state outside the statute’s safe harbor. 

To the 

contrary, he explained that the bill merely addressed Congress’s 
determination of a State’s electors and, indeed, flatly rejected the 
claim that Section 5 could result in the invalidation of a State’s votes: 

determine what the State has settled, or rather, to put it more properly, to determine 
which is the State, whether it is the people who come here represented by one man as 
governor or another, when there is a dual State government. 

It is then, and then only, 

* * * that there can be any inquiry at all * * * .”). 

See also, e.g., 17 CONG. REC. 1020 (Feb. 1, 1886) (statement of Sen. Hoar) (“As 

17 

far as possible this bill remands everything to the State, and simply gives a decisive 
weight and power to certain official action of the State itself * * * .”). 

28 

[N]obody claims that the Senate and the House have the 
right to say that the vote of any State shall be rejected. But 
they have a right, and as I understand the matter, it is their 
duty, to ascertain whether a State has voted or not, and 
ascertain whether the vote that has been deposited under the 
forms of law, with the proper officer, is in fact the lawful vote 
of a State. It is, as has been already said, a question of 
identity, and these two assembled bodies, the Senate and the 
House of Representatives, have the right, and have the duty 
imposed upon them, to see to it that the votes counted are in 
fact the votes of the States. 

Id. at 48. 

18 

B. ANY READING OF SECTION 5 AS A MANDATE TO 

THE STATES WOULD RAISE SERIOUS 
CONSTITUTIONAL QUESTIONS UNDER ARTICLE II 
AND SETTLED PRINCIPLES OF FEDERALISM THAT 
ARE PROPERLY AVOIDED BY READING IT AS A 
SAFE HARBOR. 

If there remains any ambiguity about the appropriate reading of 
Section 5, it should nonetheless be interpreted as only a safe harbor 
in order to avoid the serious constitutional questions that would be 
raised by reading it as a mandate to the States as petitioner urges. 
First, such a reading would raise serious constitutional questions 
under Article II. Article II delegates to the state legislatures the 

18 

States as petitioner suggests, it would run afoul of Article II, which vests the States, 
and not the federal government, with exclusive authority to determine the “Manner” 
in which the Electors of a State shall be appointed. U.S. Const. art. II, § 1, cl. 2. 
Properly construed, Section 5 does not abridge that provision because its framers took 
care to ensure that, although it might create an incentive for a State to adopt a 
particular system for deciding who its lawful electors were to be, the provision does 
not impose any requirements upon the States. 

As those who adopted it recognized, if 3 U.S.C. § 5 did purport to bind the 

29 

determination of the “manner” by which the State shall appoint 
presidential electors. Article II reserves no power to the Congress 
to override the States’ determination of the manner of appointment 
of electors, providing only for its determination of the time on which 
they are chosen and a uniform day on which they shall vote. This 
stands in pointed contrast to Article I, Section 4, which delegates 
authority in the first instance to the state legislatures to determine the 
time, place and manner of congressional elections, but expressly 
reserves to Congress the power to “make or alter” such regulations. 

Even if Congress has, by virtue of Article II and the Necessary 
and Proper Clause of Article I, Section 8, cl.18, the power to 
prescribe rules for its own determination of how to “count” the votes 
of the electors, and such power encompasses the power to enact 3 
U.S.C. § 5, Congress would arguably exceed its powers if it were to 
make any law respecting any State’s own determination of the 
manner of selecting its own electors. The framers’ express omission 
from Article II of any congressional override power comparable to 
that provided for in Article I plainly suggests, by negative implication, 
that Congress lacks any such power. Where the framers wished 
Congress to have the power to override the States as to election 
methods in federal elections, they explicitly provided it. Omission of 
such a power from Article II suggests none was intended. Reading 
Section 5 of Title 3 as a safe harbor rather than a mandate avoids the 
serious question of whether that section exceeds Congress’s 
delegated authority. 

Second, petitioner’s reading of Section 5 as preempting a State’s 
own choice of procedures for selecting electors raises serious 
constitutional questions under settled principles of federalism. 
“Through the structure of its government, and the character of those 
who exercise government authority, a State defines itself as a 
sovereign.” Gregory v. Ashcroft, 501 U.S. 452, 460 (1991). A 
congressional attempt to rearrange the constitutional structure of state 
government – for example, by purporting to preclude judicial 

30 

involvement in state election disputes that the state has sought through 
its own constitution and laws to provide – is one of the few sorts of 
intrusion upon state sovereignty that might well be unconstitutional 
even after this Court’s decision in Garcia v. San Antonio 
Metropolitan Transit Authority, 469 U.S. 528, (1985). See id. at 
556 (citing Coyle v. Oklahoma, 221 U.S. 559 (1911) (invalidating 
a congressional attempt to relocate a state capital)). 

Construing Section 5 to permit but not require States to avail 
themselves of its safe harbor avoids any such intrusion upon the 
State’s own internal allocation of power and hence upon its 
fundamental attributes of sovereignty. At a minimum, this Court has 
required congressional intent to be quite clear before it may upset the 
usual constitutional balance of federal and state powers. See id.; 
Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242 
(1985); Pennhurst State School & Hosp. v. Halderman, 465 U.S. 
89, 99 (1984). Section 5 does not set forth a mandate with such 
clarity and accordingly should be construed in the manner most 
favorable to the preservation of Florida’s right to structure its own 
internal separation of powers as it sees fit – namely, as a safe harbor 
that allows but does not require any state to conform to the 
procedures set forth in Section 5. 

C. A DETERMINATION BY THIS COURT THAT THE 

DECISION BELOW DID NOT “COMPLY” WITH THE 
PROVISIONS OF SECTION 5 THUS CANNOT LEAD 
TO A JUDGMENT OF REVERSAL 

A determination by this Court that the decision of the Florida 
Supreme Court did not “comply” with 3 U.S.C. § 5 would not 
support a reversal of the judgment below. Because the statute does 
not require the States to do anything, a failure to meet the standard 
set out in the statute is not a ground for reversal. At most, the 
consequence of such a determination by this Court would be to 
render the safe-harbor provision inapplicable, so that Florida’s 

31 

selection of electors might not be “conclusive” in the event of a 
dispute before Congress about its Electors pursuant to 3 U.S.C. § 

15. 

19 

III. THE FLORIDA SUPREME COURT DECISION 
SATISFIES THE CONDITIONS OF THE “SAFE 
HARBOR” PROVISION OF SECTION 5 

In any event, the Florida Supreme Court decision was fully 
consistent with the safe harbor provision set out in 3 U.S.C. § 5. 

The 

statute provides that each state’s procedures for settling “any 
controversy or contest concerning the appointment of all or any of the 
electors” shall be conclusive with respect to the choice of that state’s 
electors if the state procedures were “provided[] by laws enacted 
prior to the day fixed for the appointment of the electors.” 
Petitioner 

argues that the decision of the Florida Supreme Court contravened 
this requirement by creating a “new legal rule[]” that would apply 
“retroactively.” Pet. at 13-17. 

To begin with, petitioner’s argument is based on a flat 
misstatement of the requirements of the statute’s safe harbor 
provision. Petitioner reads the statute as if its text provided that all 
the substantive rules of decision by which a State makes its “final 
determination of any controversy or contest” must be set out in “laws 
enacted prior to the day fixed for the appointment of the electors.” 
But no such language appears in the statute. Rather, the statute 
specifies that a safe harbor shall be given determinations that are 
made “by judicial or other methods or procedures” “provided[] by 
laws enacted prior to” election day. 3 U.S.C. § 5. 

19 

was not in compliance with Section 5 would not necessarily take Florida out of the 
safe harbor since subsequent developments such as the contest actions now pending 
in Leon County could result in changes to ultimate vote totals regardless of the Florida 
Supreme Court’s decision. 

Even a determination now by this Court that the Florida Supreme Court decision 

32 

Florida has complied with this standard. The institutional 
mechanism of judicial review to decide disputes about electors was 
in place in Florida long before the day fixed for the appointment of 
electors. See Fla. Const. art. V, § 1 (“The judicial power shall be 
vested in a supreme court, district courts of appeal, circuit courts and 
county courts.”); id. art. V, § 20(c)(3) (granting circuit courts original 
jurisdiction “in all cases in equity” and reaffirming the Supreme 
Court’s pre-existing jurisdiction). If the text of the statute left any 
doubt, it is clear from the legislative history, beyond any second- 
guessing, that the Florida system comports with congressional intent: 

It means precisely this: The State may by statute enacted 
before the day of election fix any tribunal that within its 
judgment it may be deemed necessary to decide any 
controversy concerning the appointment of the electors, or 
any one of them; and when that tribunal, whatever it may be, 
shall have settled that question within a certain period before 
the meeting of the electors, that result is final and conclusive 
upon Congress, and the electors decided by that tribunal to 
be legally appointed must be counted by the House and the 
Senate. That is what it means. 

15 CONG. REC. 5461 (June 21, 1884) (statement of Rep. Springer). 
“Tribunals are established in the States for trying such cases, and the 
only effect of this is that their decision is binding upon Congress.” 
Id. 

(statement of Rep. Hiscock). “The bill provides that where the State 
has created a tribunal for the determination of these questions the 
proceedings of that tribunal shall be conclusive * * * .” 17 CONG. 
REC. 1020 (Feb. 1, 1886) (statement of Sen. Hoar). 

The legislative history nowhere suggests that, if States vested the 
judiciary with jurisdiction over election contests (which Congress 
believed would be the most likely course), the safe harbor would 
apply only if the courts issued decisions unambiguously on all fours 
with pre-election precedent. To the contrary, it was understood that 

33 

election contests would “be decided according to the laws of each 
State by judicial interpretation.” 17 CONG. REC. 816 (Jan. 21, 1886) 
(statement of Sen. Sherman). 

So long as the State has “submitted the 

controversy to its judicial tribunals, and they have determined it, that 
is the act of the State, and it ought to bind the Congress * * * .” 15 

CONG. REC. 5078 (June 12, 1884) (statement of Rep. Browne). No 
more was expected than that the matter would be resolved “by the 
judicial tribunals appointed to try judicial contests in a judicial way.” 
17 CONG. REC. 1064 (Feb. 2, 1886) (statement of Sen. Edmunds); 
see also 15 CONG. REC. 5462 (June 21, 1884) (statement of Rep. 
Springer) (explaining that, under Section 5, “this tribunal must have 
been in existence before[]” the election). 

Even if 3 U.S.C. § 5 had anything to say about the substantive 
rules under which ballots in Florida are counted – which, by its terms, 
it does not – it is clear that, after the Florida Supreme Court’s 
decision under review, as before, those ballots are being counted 
under “laws enacted prior to the day fixed for the appointment of the 
electors.” 3 U.S.C. § 5. That decision was a routine state court 
adjudication interpreting state law. And, of course, the wildly 
creative “construction” of 3 U.S.C. § 5 that petitioner urges on this 
Court as a means of reversing the decision below dwarfs any “judicial 
departure from the well-established law of Florida” by the state 
supreme court below. Contra Pet. at 15. 

IV. NEITHER FLORIDA’S SYSTEM FOR 
APPOINTING ELECTORS, NOR THE FLORIDA 
SUPREME COURT DECISION CONSTRUING 
THAT SYSTEM, VIOLATES ARTICLE II 

Petitioner next argues that the procedure Florida is now 
employing to appoint its electors “contraven[es]” Article II of the 
Constitution because of the role played in that procedure by the 
Florida Supreme Court. See Pet. Rep. at 7; Pet. at 18-20. At the 
outset, we note that this claim may not be properly before the Court 

34 

because it was neither pressed nor passed upon below. See Yee v. 
Escondido, 503 U.S. 519, 533 (1993). This is an appeal from a 
state court judgment, under 28 U.S.C. § 1257. See Pet. 1. That 
statutory authority prevents this Court from deciding federal 
constitutional claims that are raised for the first time before it in 
appeals from state court decisions. See Adams v. Robertson, 520 
U.S. 83, 88 (1997) (per curiam); Cardinale v. Louisiana, 394 U.S. 
437, 438-439 (1969). Before a claim will be considered here on 
appeal, it must “‘be brought to the attention of the state court with fair 
precision and in due time.’” Street v. New York, 394 U.S. 576, 584 
(1969) (quoting New York ex rel. Bryant v. Zimmerman, 278 U.S. 
63, 67 (1928)). 

That standard was not met here. 

20 21 

In any event, Article II’s command is directed to the States qua 

20 

the constitutional question which petitioner seeks to present first “arose from [the 
state court’s] unanticipated act in giving to the statute a new construction which 
threatened rights under the Constitution,” at least when the constitutional question is 
subsequently presented to the state court in a petition for rehearing or reargument. 
See Herndon v. Georgia, 295 U.S. 441, 443-444 (1935). Even if the requirement of 
filing a petition for reargument or rehearing in the state court could be waived, 
petitioner cannot invoke this exception since the ruling of the state court could not 
have been “unanticipated.” The Florida Supreme Court ruled essentially as petitioner 
asked them to. (Indeed, the court below gave respondents somewhat less than they 
asked for by setting a rigid November 26 deadline for completion of the manual 
recounts.) And petitioner did anticipate the ruling, arguing that it would violate 3 
U.S.C. § 5. 

What he failed to do was to raise a claim under Article II, and it is for that 

reason that he is now foreclosed from raising any such claim before this Court. 

An examination of the brief filed by petitioner below reveals that no Article II 

21 

claim was adequately made before the Florida Supreme Court. 

There does appear to be an exception to the “pressed or passed on” rule when 

The only reference to 

Article II in the portion of petitioner’s brief in that Court on which he relies was in a 
description in a footnote of the source of state authority to prescribe the manner by 
which electors are chosen. See Brief of George W. Bush in Palm Beach County v. 
Katherine Harris, at 43 n.15; Pet. App. at 62a-63a. The only argument made in that 
footnote was that “under the relevant federal statutes and the SupremacyClause” the 
state procedures for choosing electors is “incorporate[d] by reference” into federal 
law. See id. 

35 

States and cannot become a warrant for federal court intrusions into 
state election disputes, much less for federal judicial supervision of 
state court decisions regarding those disputes. Here, it is clear that 
the requirements of Article II, § 1, cl. 2 have been satisfied, for the 
Florida legislature did “direct” (in the Florida Election Code) a 
“Manner” for the appointment of electors. Under Florida law, this 
“Manner” of appointment happens to be subject to review by the 
state’s highest court. And the Florida Supreme Court acted well 
within its statutory jurisdiction in this case. Article II, § 1, cl. 2 
neither displaces the state judiciary nor forbids it from performing its 
traditional function under state law of construing statutes to fill gaps, 
clarify ambiguities and harmonize inconsistencies. Indeed, 3 U.S.C. 
§ 5 provides strong evidence that Congress itself recognized the 
propriety of state judicial review regarding the appointment of 
electors. For Section 5 offers a safe harbor to states that use 
“judicial or other methods or procedures” to resolve controversies 
concerning electors. 

Petitioner concedes that, under Article II, § 1, cl. 2, “[h]ad 
the Florida legislature seen fit to vest the decision in the hands of the 
judiciary, presumably it could have done so.” Pet. at 20. But if the 
state judiciary could have been delegated the task of selecting the 
electors by name, then surely it may engage in the much less intrusive, 
and more familiar, role of garden variety statutory interpretation. In 
the end, petitioner seems ultimately to agree that state courts should 
play some interpretive role. See Pet. Rep. at 7 (conceding a role for 
the state judiciary in the interpretation of laws for the appointment of 
presidential electors). 

Although petitioner insists that “[w]here a State’s judiciary * * * 
eviscerat[es] a state statutory rule applicable to electoral disputes, 
federal court review is plainly appropriate,” id., the decision below 
did not “eviscerate” the state statutes it construed. It interpreted and 
harmonized them, making sense of the entire statutory scheme. 
More 

fundamentally, as this Court has repeatedly held, a grant of 

36 

lawmaking power to the “legislature” of a State imposes no 
requirement that only the legislature itself make the law. 

Such a grant 

does not impose any restriction on the lawmaking machinery 
employed by the States. State statutes governing the appointment of 
electors, like those enacted pursuant to other constitutional 
delegations of lawmaking power to the “legislatures” of the States, 
have always been subject to state law processes including state 
judicial review and gubernatorial veto. 

22 

Thus, in Smiley v. Holm, 285 U.S. 355 (1932), this Court held 
that the delegation to each state’s “Legislature” in Article I, § 4 of the 
authority to prescribe the “Times, Places and Manner of holding 
Elections for Senators and Representatives,” U.S. Const. art. I, § 4, 
did not preclude the state executive, the Minnesota Governor, from 
vetoing a state congressional reapportionment law. Obviously such 
action – which completely overturned the action of the state 
legislature – would run afoul of petitioner’s “evisceration” principle. 
This Court held, however, that § 4 does not exclude other branches 
of the state from participating as they ordinarily do in the lawmaking 
process of prescribing the manner of elections. It rejected the 
argument put forward by petitioner that, in passing laws pursuant to 
the constitutional grant of authority in Art. I, § 4, the legislature is “not 
acting strictly in the exercise of a lawmaking power but merely as an 
agency, discharging a particular duty in the manner which the Federal 
Constitution required.” Smiley, 285 U.S. at 335. 

This Court found in the constitutional language no “attempt to 
endow the legislature of the State with power to enact laws in any 
manner other than that in which the constitution of the state has 

22 

current practice of giving a ten-day extension for overseas absentee ballots, a practice 
that rests only on an administrative role. See Fla. Div. of Elections Rule 1S2.013. See 
note 3, supra. 

Petitioner’s reading of Article II would also call into question the Secretary’s 

37 

provided that laws shall be enacted. Whether the Governor of the 
State, through the veto power, shall have a part in the making of state 
laws is a matter of state policy. Article I, Section 4, of the Federal 
Constitution, neither requires nor excludes such participation.” Id. at 
368. Nothing in the Article I delegation of lawmaking power to the 

23 

States “precludes a State from providing that legislative action in 
districting the State for congressional elections shall be subject to the 
veto power of the Governor.” Id. at 372. Similarly, nothing in 
Article II prevents the State from having its judiciary play its ordinary 
role in the lawmaking process, that of interpreting the laws enacted 
by the legislature. 

24 

23 

Court considered whether citizens could reject via popular referendum a law enacted 
by the state legislature to regulate elections. 

The Ohio constitution granted the people 

the right to overturn any legislation in a referendum; the people exercised that power 
to overturn a congressional apportionment scheme. The Court ruled that Article I, § 
4 did not preclude this referendum. The Court held that, in order to show that this 
clause was violated, the petitioners would have to demonstrate that the Republican 
Guarantee Clause was also violated, that is, that the inclusion of a referendum as a 
check on the legislature’s authority would “introduce a virus which destroys that 
power, which in effect annihilates representative government and causes a State where 
such condition exists to be not republican in form.” Id. at 569. 

In Davis, as here, no 

Similarly, in Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565 (1916), this 

such argument could be made. 

Petitioner has cited a single sentence in McPherson v. Blacker, 146 U.S. 1, 25 

24 

(1892), which states that the words of Article II operate “as a limitation upon the 
state in respect of any attempt to circumscribe the legislative power.” We do not 
disagree. If the state supreme court or Governor decided to pick electors on its own, 
in disregard of state law, that would violate the Constitution. 

But where, as here, the 

state supreme court is simply interpreting existing law, such action is clearly 
constitutional. See id. at 23 (“We are not authorized to revise the conclusions of the 
state court on these matters”); id., at 35 (quoting Senate Report permitting state 
supreme court to appoint electors if legislature so wishes). Indeed, in McPherson 
itself, the state Supreme Court below had measured the statute providing for the 
appointment of electors for conformity with “the state constitution and laws,” and 
this Court concluded that it was “not authorized to revise the conclusions of the state 
court on these matters of local law.” Id. at 23. This very conclusion is enough to 
dispose of petitioner’s Article II claim. 

38 

Only this principle can explain this Court’s recent decision in 
Growe v. Emison, 507 U.S. 25, 34 (1993), in which, despite the 
reference to “Legislature[s]” in Article I, § 4, cl. 1, this Court 
unanimously held that state courts as well as state legislatures could 
redraw congressional districts. This Court criticized the district 
court’s “mistaken view that federal judges need defer only to the 
Minnesota Legislature and not at all to the State’s courts,” thus 
“ignoring the possibility and legitimacy of state judicial redistricting.” 
Id. at 34. 

This Court reaffirmed Scott v. Germano, 381 U.S. 407, 

25 

409 (1965) (per curiam) (“The power of the judiciary of a State to 
require valid reapportionment or to formulate a valid redistricting plan 
has not only been recognized by this Court but appropriate action by 
the States in such cases has been specifically encouraged.”). 

26 

Smiley and related cases construing constitutional language 
identical in relevant part to that relied upon by petitioner here 
foreclose his argument under Article II. Indeed, the case for 
subjecting election laws to judicial interpretation at the state level is 
markedly stronger than the case for subjecting them to a state law 
executive veto mechanism. Smiley observed that, although the veto 
mechanism existed in “only two states” at the time of the Founding, 
it was nonetheless sufficiently “well known” to have informed the 

25 

I, § 4, cl. 1, which refers to state “Legislature[s].” See Brief of Appellants Joan Growe, 
Secretary of the State of Minnesota, et al., in Growe v. Emison, No. 91-1420, 1991 
U.S. Lexis Briefs 1420, at n.15 (“The United States Constitution gives responsibility 
for drawing congressional district boundaries to state legislatures. 

U.S. Const. art. I, 

The source of state court redistricting authority is the “Manner” clause of Article 

§ 4. When a state legislature fails to adopt a congressional redistricting plan, state 
courts are urged, under the doctrine established in Scott v. Germano, to adopt a plan. 
Numerous state courts have met this responsibility * * * .”). 

Although the Florida legislature might have reserved to itself the power to select 

26 

electors, it decided to treat Presidential elections as part of its general framework for 
all other elections. This framework implicates judicial review, executive 
decisionmaking, and conformity to Florida’s constitutional principle of voter 
sovereignty. 

39 

drafting of the constitutional provisions empowering state legislatures 
to enact laws on the election of federal officials. 285 U.S. at 368. 
In contrast to the veto mechanism, judicial power to interpret statutes 
was routine in all of the original states. As Alexander Hamilton 
explained in the Federalist Papers – and Chief Justice Marshall 
repeated in Marbury v. Madison – “interpretation of laws is the 
proper and peculiar province of the courts.” 

27 

Thus, state judicial power to interpret state election laws has 
been an established practice in the centuries since the Founding. 

28 

27 

U.S. (1 Cranch) 137, 177-78 (1803); Henry P. Monaghan, Marbury and the 
Administrative State, 83 COLUM. L. REV. 1, 12 (1983). 

See, e.g., In re Opinion of the Justices, 107 A. 705, 707-08 (Maine 1919) 

28 

(construing women’s suffrage legislation in conjunction with state referenda and also 
stating “The clause, ‘in such manner as the Legislature thereof may direct,’ means, 
simply that the state shall give expression to its will, as it must, of necessity, through 
its lawmaking body, the Legislature.* * * . But these acts and resolves must be passed 
and become effective in accordance with and in subjection to the Constitution of the 
state, like all other acts and resolves having the force of law. 

The Legislature was not 

THE FEDERALIST NO. 78 (Alexander Hamilton); see Marbury v. Madison, 5 

given in this respect any superiority 
over or independence from the organic law of the 

state in force at the time when a given law is passed. * * * . [Legislative acts under 
Section 4] must always be subject to the provisions of the Constitution of the state 
in force at the time such acts are passed and can be valid and effective only when 
enacted in compliance therewith.”); State v. Marsh, 34 N.W.2d 279, 282-83 (Neb. 
1948) (resolving this question: “The question then is--what manner of appointment 
of electors has the Legislature of this state directed?” and deciding between conflicting 
state statutes about “political parties” by interpreting these various laws); Markham 

v. Bennion, 252 P.2d 539, 540-44 (Utah 1953) (interpreting phrase “public officers” 
in Utah election law governing presidential elections through canons of construction 
and judicial examination of the “intent of legislature” in enacting law); State v. Myers, 
4 N.E.2d 397, 398-99 (Ohio 1936) (interpreting registration provisions of Ohio 
Election Code and stating that Code is “not unconstitutional” because “there is no 
provision in the Ohio Constitution limiting the exercise of that delegated power” under 
Article II to select the manner of appointing Electors); McClendoon v. Slater, 554 
P.2d 774, 778-81 (Okla. 1976) (interpreting Oklahoma election law, such as provisions 
governing independent voters, recognition of parties, and party affiliation changes); 
Commonwealth v. O’Connell, 181 S.W.2d 691 (Ky. Ct. App. 1944) (construing 

40 

Petitioner’s understanding of Article II would place federal courts in 
the business of selecting which, if any, of these state court decisions 
are permissible. 

29 

Moreover, petitioner’s claim that the Florida Supreme Court may 
not interpret state electoral statutes calls into question not only that 

state law governing absentee ballots in presidential election with state constitution’s 
provisions); McLavy v. Martin, 167 So. 2d 215 (La. Ct. App. 1964) (interpreting 
Louisiana Presidential Elector Law and finding that it is not an unconstitutional 
delegation of power to a political party); Opinion of the Justices, 34 So. 2d 598 
(Ala. 1948) (stating that law that binds electors violates the Constitution); In re 
Opinion of the Justices, 113 A. 293 (N.H. 1921) (interpreting proposed bill 
governing absentee voters, and finding that bill would be constitutional insofar as it is 
passed under Article II power); Opinion of Justices, 1864, 45 N.H. 595 (1864) 
(deciding that proposed bill governing absentee voting is constitutional); Opinion of 
Justices, 37 Vt. 665 (1865) (deciding similar issue); Stanford v. Butler, 181 S.W.2d 
269, 271-73 (Tex. 1944) (interpreting phrase “state office” in Texas Election Code and 
holding that such laws could not apply to Presidential elections becausesuch a reading 
“was not intended by the Legislature” and stating that because the state legislature has 
not directed how a party should select its nominees, “the party is free to follow any 
method which it may choose in keeping with party usages and customs”); State v. 
Osborne, 125 P. 884, 885 (Ariz. 1912) (reviewing the constitutionality of an act 
providing for, among other things, election of Presidential electors and stating that 
“[t]he constitutionality of an act of the Legislature, although it may determine the 
legality of holding an election and thereby have a political effect, is strictly a judicial 
question. For whether the act is within the limits of its delegated power or not is a 
strictly judicial question to be decided by the courts, and in no sense political” and 
that judicial review does not “interfere with the discretionary powers of the 
Legislature”). 

As the Court explained in Smiley: 

29 

General acquiescence cannot justify departure from the law, but long and 
continuous interpretation in the course of official action under the law may 
aid in removing doubts as to its meaning. This is especially true in the case 
of constitutional provisions governing the exercise of political rights, and 
hence subject to constant and careful scrutiny. Certainly, the terms of the 
constitutional provision furnish no such clear and definite support for a 
contrary construction as to justify disregard of the established practice in 
the states. 
285 U.S. at 369. 

41 

court's indisputable power of judicial review, but also the important 
and established interpretation of such statutes by state Attorneys 
General nationwide. 

30 

30 

Alaska Election Code regarding write-in votes and Twelfth Amendment after an 
election); Atty. Gen. Op. No. 81-134, 1981 WL 155208, Feb. 4, 1981 (construing 
absentee voting statutes); Miss. Atty. Gen. Op., 1980 WL 28870, Oct. 28, 1980 
(construing Mississippi absentee ballot provisions and "vacation" exception); Miss. 
Atty. Gen. Op., 1980 WL 28885, Oct. 27, 1980 (interpreting other provisions of 
absentee ballot law); 1979-80 Mass. Op. Atty. Gen. 98, 1979 WL 42140, Oct. 29, 
1979) (interpreting Massachusetts absentee ballot law); Mich. Op. Atty. Gen., No. 
6775, 1993 WL 494593, Nov. 18, 1993 (deciding whether federal and state government 
employees can serve as Presidential electors under Michigan law); 20 Okl. Op. Atty. 
Gen. 156, No. 88-68, 1988 WL 424327, Oct. 4, 1988 (deciding same issue for 
Oklahoma Electors); Tenn. Op. Atty. Gen. No. 80-62, 1980 WL 103680, Feb. 5, 1980 
(deciding same issue in Tennessee); S.C. Op. Atty. Gen. 196, 1960 S.C. Op. Atty. 
Gen. No. 88, 1960 WL 9016, Sept. 21, 1960 (interpreting South Carolina statute to 
say that Presidential electors are nominated by Party officials, not through a primary); 
Tenn. Op. Atty. Gen. No. 79-525, 1979 WL 34133, Dec. 11, 1979 (interpreting 
Tennessee Presidential Elector statutes); Op. S.C. Atty. Gen., 1960 WL 12012, April 
22, 1960 (interpreting South Carolina statute regarding names of Presidential electors 
on ballot); Op. S.C. Atty. Gen., 1981 WL 158040, Nov. 6, 1981 (interpreting South 
Carolina nomination law for Presidential Electors); Tex. Atty. Gen. Op. JM-998, 1988 
WL 406325, Dec. 23, 1988 (interpreting Texas Election Code about straight-line party 
votes); 1980-81 Va. Op. Atty. Gen., WL 101405, Oct. 22, 1980 (interpreting Virginia 
Code as not requiring a special provision for write-in votes for president on a voting 
machine); Op. Mich. Atty. Gen., 1982 WL 183571, June 16, 1982 (interpreting 
Michigan election law governing political parties on ballots); 69 Md. Op. Atty. Gen. 
133, 1984 WL 247042, Jan. 6, 1984 (interpreting similar law in Maryland); Mo. Op. 
Atty. Gen., Op. No. 179, 1980 WL 115003, Aug. 22, 1980 (interpreting similar law 
in Missouri); Kan. Op. Atty. Gen. 24, May 18, 1992 (deciding whether one Vice 
Presidential nomination can be substituted for another under Kansas Election Law); 
Op. Ky. Atty. Gen., No. 00-1, 2000 WL 121765, Jan. 11, 2000 (interpreting 
Kentucky election statutes to decide that Reform Party is not a "political party" 
entitled to use presidential primary); 42 Oreg. Op. Atty. Gen. 93, 1981 WL 152270, 
Sept.25,1981(interpretingOregonlawgoverningnominationofPresidentialelectors); 
Op. Atty. Gen. Tenn., No. 81-460, 1981 WL 169408, Aug. 18, 1981 (similar issue 
under Tennessee law); 1988 Ariz. Op. Atty. Gen. 93, No. I88-069, 1988 WL 249646 
(June 27, 1988) (stating that an Arizona statute that failed to allow a way for new 

See 1989 Alaska Op. Atty. Gen. 85, 1989 WL 266932, July 1, 1989 (interpreting 

42 

The rule set out in Smiley, Growe, and the other cases 
described above, resonates with the fundamental principle that the 
federal Constitution takes the arrangement of state governmental 
branches as it finds them. “[T]he concept of the separation of powers 
embodied in the United States Constitution is not mandatory in state 
governments.” Sweezy v. New Hampshire, 354 U.S. 234, 255 
(1957). Indeed, “[i]t would make the deepest inroads upon our 
federal system for this Court now to hold that it can determine the 
appropriate distribution of powers and their delegation within the 
forty-eight states.” Id. at 256 (Frankfurter, J., joined by Harlan, J., 
concurring in the judgment). 

31 

Petitioner’s argument that the delegation of authority to the 
state legislatures in Article II works a change in the ordinary process 
of making state law rests solely on a case construing not a delegation 

political parties to place the names of their presidential electors on the ballot was 
unconstitutional); 1984 Ariz. Op. Atty. Gen. 51, No. I84-059, 1984 WL 61256 (April 
20, 1984) (deciding that an Arizona statute did not entitle a particular party to 
representation as a political party). Petitioner's reading, which would permit the state 
courts to review all state election law with the sole exception of those governing 
Presidential elections, would create a baffling array of confusions in state law. State 
officials tend to examine general provisions of state election law in a uniform way. 
E.g., Del. Op. Atty. Gen. 00-IB11, 2000 WL 1092964, June 19, 2000 (interpreting 
Delaware's general statutory language restricting voting rights of "idiots or insane 
people"). 

See also Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 480-81 

31 

(1981) (Stevens, J., dissenting) (“[T]he allocation of functions within the structure of 
a state government [is] a matter for the state to determine. 

I know of nothing in the 

Federal Constitution that prohibits a State from giving lawmaking power to its 
courts.”); Highland Farms Dairy, Inc. v. Agnew, 300 U.S. 608, 612 (1937) 
(Cardozo, J.) (rejecting argument that lawmaking authority of the legislature had been 
improperly assigned to another branch: “The Constitution of the United States in the 
circumstances here exhibited has no voice upon the subject.”); Illinois, 187 U.S. 71, 
84 (1902) (Harlan, J.) (“Whether the legislative, executive and judicial powers of a 
State shall be kept altogether distinct and separate * * * is for the determination of the 
State.”). 

43 

of lawmaking authority to the state legislatures, but the wholly 
different delegation to the state legislatures of power to ratify 
constitutional amendments under article V. 

Petitioner relies on the 

32 

Court’s statement in Hawke v. Smith, 253 U.S. 221 (1920), that the 
term “Legislature” in Article V means only the legislature (and not the 
people via a plebiscite). See Pet. at 20 (quoting Hawke, 253 U.S. 
at 227). Yet as Smiley explained, Hawke is inapposite precisely 
because it does not involve a delegation of “lawmaking” authority. 

33 

Indeed, Hawke itself makes clear that its holding is confined to those 
constitutional clauses that impose a non-lawmaking role on state 
legislatures under the Constitution. Hawke, 253 U.S. at 231 
(“[L]egislative action [under Article I, § 4] is entirely different from 
the requirement of the Constitution as to the expression of assent or 
dissent to a proposed amendment to the Constitution.”). 

34 

This Court itself has confirmed state court authority to interpret 
and enforce state election laws passed pursuant to Article II, § 1, cl. 

32 

amendments to be called “on the Application of the Legislatures of two thirds of the 
several States.” 
It further provides that an amendment will be valid “when ratified by 

the Legislatures of three fourths of the several states,” if Congress chooses this “Mode 
of Ratification.” 

Smiley, 285 U.S. at 365-66. (“The legislature may act as an electoral body, as 

33 

in the choice of United States Senators under Article I, section 3, prior to the adoption 
of the Seventeenth Amendment. It may act as a ratifying body, as in the case of 
proposed amendments to the Constitution under Article V. Hawke v. Smith, No. 1, 
supra; Id., No. 2, 253 U.S. 231; Leser v. Garnett, 258 U.S. 130, 137. 

It may act as a 

Article V of the Constitution provides for a Constitutional Convention for 

consenting body, as in relation to the acquisition of lands by the United States under 
Article I, section 8, paragraph 17. Wherever the term ‘legislature’ is used in the 
Constitution it is necessary to consider the nature of the particular action in view.”) 

Hawke discussed seven different clauses in which state legislatures are given 

34 

federal constitutional roles. 253 U.S. at 227-28. In all seven, the legislatures act in 

nonlawmaking roles. Thaere were two, and only two, exceptions from this list 

– the 

Article I, Section 4 power to prescribe the “Manner” of congressional elections, and 
the Article II power to do the same for presidential elections. 

44 

2. More than a century ago the Court held that “Although the 
electors are appointed and act under and pursuant to the constitution 
of the United States, they are no more officers or agents of the 
United States than are the members of the state legislatures when 
acting as electors of federal senators, or the people of the states 
when acting as electors of representatives in congress.” Fitzgerald 

v. Green, 134 U.S. 377, 379 (1890) (citations omitted); see Walker 

v. United States, 93 F.2d 383, 387-88 (CA8 1937) (“It is 
contended by defendants that presidential electors are officers of the 
state and not federal officers. 

We are of the view that this contention 

is sound and should be sustained.”) (citing Fitzgerald). Moreover, 
because the selection of electors is a matter of state law, the Court 
has explained, state courts have jurisdiction over cases involving 
violations of state election laws enacted under Article II, § 1. See 
Fitzgerald, 134 U.S. at 378-79; see also Walker, 93 F.2d at 388- 
89 (“Manifestly, the right to vote for presidential electors depends 
directly and exclusively on state legislation. 

We conclude that count 

1 of the various indictments does not state a federal offense.”). The 
Court in Fitzgerald thus refused to reverse a state court judgment 
imprisoning a state resident for violating state election laws, explaining 
that the state “clearly has such power in regard to votes for 
presidential electors, unaffected by anything in the constitution and 
laws of the United States.” Fitzgerald, 134 U.S. at 378-79. 
Accordingly, the state judiciary’s traditional role in interpretation does 
not disappear under Article II, § 1, cl. 2. 

V. NOTHING IN THE FLORIDA SUPREME COURT 
DECISION VIOLATES DUE PROCESS. 

Nor, finally, is there any merit to petitioner Bush’s glancing 
contention that the Florida Supreme Court’s decision violates his 
federal right to “due process .” Pet. at 17. Again, this claim was not 
raised below. The only reference to due process in petitioner’s brief 
in the Supreme Court of Florida came in his discussion (see Pet. 

45 

App. at 63a) of the conduct of the manual recounts under the Florida 
scheme – leading to the question this Court declined to review in No. 
00-837. Not having been raised below, the due process claim is not 
properly before this Court. 

35 

Because this claim was raised for the first time in the Petition for 
Certiorari, and in a single sentence at that, it is hard to determine 
what theory, if any, petitioner seeks to urge on this Court. The 
Question Presented emphasizes the “post-election” nature of the 
decision below, so it appears that petitioner seeks to allege that the 
Florida Supreme Court’s interpretation of state law amounted to a 
retroactive change in the law so egregious that it violates “substantive 
due process.” See Eastern Enters. v. Apfel, 524 U.S. 498, 556- 
557 (1998) (Breyer, J., dissenting) (noting that Due Process Clause 
might be thought to protect against unfairly retroactive laws because 
“courts have sometimes suggested [that] a law that is fundamentally 
unfair because of its retroactivity is a law which is basically 
arbitrary”); but compare id. at 537-538 (plurality opinion of 
O’Connor, J.) (expressly declining to measure purportedly unfairly 
retroactive legislation against the substantive due process test for 
“arbitrar[iness] and irrational[ity]”). The difficulty with this argument 
is that petitioner cannot establish any of the elements that would be 
essential to such a claim. 

To establish the charge of a constitutionally impermissible 
retroactive change in the law, petitioner would have to demonstrate 
not simply that the Florida Supreme Court’s decision constituted a 
retrospective change and that the change deprived him of a 
cognizable liberty or property interest, but also that the change was 
“arbitrary and irrational.” Eastern Enters, 524 U.S. at 548 

35 

discusses it in only a single paragraph of the petition for certiorari, Pet. at 17-18, and 
not at all in the briefing below or in the reply in support of certiorari. 

It may be revealing of the force of petitioner’s due process theory that he 

46 

(Kennedy, J., concurring in the judgment and dissenting in part); see 
also id. at 537 (plurality opinion of O’Connor, J.) (same); id. at 556 
(Breyer, J., dissenting) (same). 

First, the Florida Supreme Court’s decision did not constitute a 
retroactive change in Florida law at all. For the reasons set forth 
above in Part I, the court’s decision was an unremarkable 
construction of state statutes and state constitutional provisions. 
Even 

if that were not the case, it would take an exceptional showing of 
unfair retroactive effect to hold a court decision (as opposed to a 
legislative enactment) violative of due process: court judgments are 
normally retrospective in light of their application to the parties to the 
case, and the Fourteenth Amendment has never been suggested to 
require otherwise. Indeed, this Court’s decisions reflect the strong 
presumption, consistent with this Court’s understanding of the nature 
of the judicial act, that judicial rulings (again, in contrast to legislative 
enactments) must be retrospectively applied to the parties 
themselves. See, e.g., Harper v. Virginia Dept. of Taxation, 509 
U.S. 86, 97 (1993); see id. at 107-08 (Scalia, J., concurring).. 

Second, the supposedly retroactive nature of the Florida 
Supreme Court’s decision did not deprive petitioner of any 
cognizable interest protected by the Fourteenth Amendment. There 
can be no reliance interest in an administrative deadline that the 
Florida Supreme Court held to be inconsistent with Florida law and 
the need to count Florida votes in a fair and accurate manner. The 
most that petitioner has said on the point is that “the candidates’ 
decisions whether to seek a manual recount in specific additional 
counties might well have been affected had petitioner and other 
candidates known” of the court’s decision in advance. Pet. at 18. 
That argument is both fanciful and disingenuous. Petitioner has never 
asserted that he failed to request recounts on the view that they could 
not be completed within the deadlines set by the Florida Secretary of 
State. To the contrary, he has repeatedly rejected the suggestion that 

47 

he desired such recounts, and specifically did so in response to a 
direct inquiry from the Florida Supreme Court. See Pet. App. 38a 

n.56. Moreover, even assuming that petitioner has a protected 
constitutional interest in seeking recounts in other counties, Florida’s 
election protest provisions (which petitioner has invoked with respect 
to several Florida counties) are certainly sufficient to protect that 
interest. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 436 
(1982). 

36 

Petitioner also suggests that, if the candidates had known that the 
Florida Supreme Court would permit supplemental returns to be filed 
after the deadline, “campaign strategies would have taken this into 
account,” Pet. at 18 (internal quotation marks and citation omitted), 
but that just demonstrates the extreme weakness of his due process 
claim. Petitioner obviously can point to no strategic or tactical 

36 

inapposite. Roe v. Alabama, 43 F.3d 574 (per curiam), and 68 F.3d 404 (CA11 
1995) (per curiam), involved the claim of Alabama voters that the effectiveness of 
their votes would be diluted by the retroactive abrogation of a uniform, long-standing 
prohibition on accepting certain write-in ballots. Not only does petitioner lack 
standing to raise such a claim, but the Eleventh Circuit’s holding rested on the fact that 
the change in Alabama law resulted in the counting of selected ballots that previously 
had been regarded as illegal in circumstances where voters who were not given the 
benefit of the new rule of eligibility could plausibly allege that they would have 
decided to vote had the onerous requirements lifted for others been lifted for them as 
well. Petitioner asserts here the very different interest in precluding the counting of 
entirely lawful ballots that happen not to have been counted prior to the deadline set 
by the Secretary of State, an interest that cannot possibly have constitutional footing. 

The only due process right even arguably implicated by this case is the right 
of voters to have their ballots counted, a consideration that only supports the state 
supreme court’s decision. The state has no substantial interest in enforcing an 
arbitrary deadline that has the singular effect of precluding those votes from being 
counted. See Zimmerman Brush, 455 U.S. at 428. It is worth noting in this respect 
that petitioner Bush himself is aggressively arguing in the state courts that military 
absentee votes should be counted notwithstanding various clear requirements of 
Florida statutes to the contrary, based in substantial part on the rights of voters to 
have their ballots counted. 

The only decision cited by petitioner in support of his supposed interest is 

48 

decision made during the presidential campaign in reliance on 
Florida’s specific deadline for its counties’ submission of their 
completed election returns, on the scope of the Secretary of State’s 
discretion with respect to that deadline, or on what counts as 
evidence that a voter intended to poke a hole through a machine- 
readable ballot! 

Finally, there is no serious argument that the Florida Supreme 
Court’s decision, even if retroactive, was unconstitutionally “arbitrary 
or irrational.” Unlike a case such as Eastern Enterprises, in which 
particular companies were isolated by Congress to bear retroactively 
an enormous and unexpected financial burden arguably beyond any 
reasonable expectation, the Florida Supreme Court’s decision 
applies entirely evenhandedly to all counties and candidates. 

37 

Moreover, not even petitioner Bush challenges the principal 
undercurrents supporting the state supreme court’s decision: the state 
constitutional right to have one’s vote counted and the virtue of 
reconciling competing statutory provisions. 

At bottom, all petitioner can really claim is that, in his view, the 
Florida Supreme Court got Florida law wrong. But a “‘mere error 
of state law’ is not a denial of due process.” Engle v. Isaac, 456 
U.S. 107, 121 n.21 (1982); Gryger v. Burke, 334 U.S. 728, 731 
(1948) (“otherwise, every erroneous decision by a state court on 
state law would come here as a federal constitutional question”); 
Brinkerhoff-Faris Co. v. Hill, 281 U.S. 673, 680 (1930) (Brandeis, 
J.) (“[T]he mere fact that a state court has rendered an erroneous 
decision on a question of state law, or has overruled principles or 
doctrines established by previous decisions on which a party relied, 
does not give rise to a claim under the Fourteenth Amendment or 

37 

recounts, that was only because petitioner Bush elected not to exercise his right to 
request recounts in any of the sixty-four other Florida counties. 

Although only three counties were at the time seeking to conduct manual 

49 

otherwise confer appellate jurisdiction on this Court”). To hold that 
the decision below violates due process would do violence both to 
principles of federalism and to the independence of the judiciary 
throughout the United States. It would invite an onslaught of such 
claims by the losing parties in state courts alleging that the decisions 
in their cases constituted an unconstitutional departure from 
“preexisting * * * law.” Pet i. It would effectively introduce a 
federal rule of separation of powers on the states, by holding that 
certain legal rules – those that would comprise such unlawful 
departures – may not be announced by courts, but only through 
legislation. And it would undermine the authority of the judiciary to 
decide the meaning of law, by holding that apparently routine judicial 
acts of statutory construction long thought to involve only questions 
of state law in fact amount to illegitimate and unconstitutional 
usurpations of the legislative role. 

Undoubtedly the Due Process Clause imposes some limit on truly 
outrageous and arbitrary judicial action, “the most egregious of 
circumstances.” Eastern Enterprises, 524 U.S. at 550 (Kennedy, 
J., concurring). But if the balance between state and federal power 
is to be held true, and if the judicial process of statutory interpretation 
is to be protected from promiscuous charges of usurpation, before a 
claimed error in a construction of state law can rise to the level of a 
due process violation it would have to be far graver than any that 
petitioner has erroneously attributed to the court below. 

CONCLUSION 

The judgment should be affirmed. 

Respectfully submitted, 

Teresa Wynn Roseborough 
Laurence H. Tribe 

David I. Adelman 

(Counsel of Record) 

James A. Orr 

Hauser Hall 420 

John H. Fleming 

1575 Massachusetts Ave. 

999 Peachtree St, NE 
Cambridge, MA 02138 

Atlanta, GA 30309 

David Boies 

Ronald A. Klain 
Boies, Schiller & Flexner 
Andrew J. Pincus 

80 Business Park Dr., Ste. 110 

c/o Gore/Lieberman Recount 

Armonk, NY 10504 

430 S. Capitol St. 
Washington, DC 20003 

Kathleen M. Sullivan 
559 Nathan Abbott Way 
Kendall Coffey 

Stanford, CA 94305 
Coffey Diaz & O’Naghten 
2665 South Bayshore Dr. 

Thomas C. Goldstein 
Miami, FL 33133 

Amy Howe 

4607 Asbury Pl., NW 
Jonathan S. Massey 

Washington, DC 20016 
3920 Northampton St., NW 
Washington, DC 20015 

Peter J. Rubin 
Neal K. Katyal 
Georgetown Univ. Law Ctr. 
600 New Jersey Ave., NW 
Washington, DC 20001