No. 

IN THE 

Supreme Court of the 
United States 

GEORGE W. BUSH, 

Petitioner, 

v. 

PALM BEACH COUNTY CANVASSING BOARD, ET AL., 

Respondents. 

On Petition For A Writ Of Certiorari 
To The Supreme Court Of Florida 

PETITION FOR A WRIT OF CERTIORARI 

MICHAEL A. CARVIN 
COOPER, CARVIN & 

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

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

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

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

[Additional counsel listed on inside front cover] 

Counsel for Petitioner 

GEORGE J. TERWILLIGER III 
TIMOTHY E. FLANIGAN 
MARCOS D. JIMÉNEZ 
WHITE & CASE LLP 
First Union Financial Center 
200 South Biscayne Blvd. 
Miami, Florida 33131 
(305) 371-2700 

i 

QUESTIONS PRESENTED 

The Supreme Court of Florida has held that the Sec- 
retary of State cannot certify election results in accor- 
dance with preexisting Florida law and must instead 
wait for the statutorily untimely results of manual re- 
counts conducted in three Florida counties before certi- 
fying the results of the November 7, 2000 presidential 
election. This holding raises three substantial federal 
questions that warrant immediate review by this Court: 

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

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

3. Whether the use of arbitrary, standardless, and 
selective manual recounts that threaten to overturn the 
results of the election for President of the United States 
violates the Equal Protection or Due Process Clauses, or 
the First Amendment. 

ii 

PARTIES TO THE PROCEEDING 

The following individuals and entities are parties to 
the proceeding in the court below: 

Governor George W. Bush, as candidate for Presi- 
dent; Katherine Harris, as Secretary of State, State of 
Florida; Katherine Harris, Bob Crawford, and Laurence 
C. Roberts, as members of the Elections Canvassing 
Commission; Matt Butler; Palm Beach County Canvass- 
ing Board; Broward County Canvassing Board; Broward 
County Supervisor of Elections; Robert A. Butterworth, 
as Attorney General, State of Florida; Florida Democ- 
ratic Party; and Vice President Albert Gore, Jr., as can- 
didate for President. 

iii 

TABLE OF CONTENTS 

Page 

QUESTIONS PRESENTED...............................................i 

PARTIES TO THE PROCEEDING .................................ii 

OPINIONS BELOW ...........................................................1 

JURISDICTION ..................................................................1 

CONSTITUTIONAL PROVISIONS AND 
STATUTES INVOLVED...................................................2 

STATEMENT OF THE CASE..........................................4 

I. The Underlying Litigation....................................4 

A. The Recount Authority Litigation................5 

B. The Recount Certification Litigation...........7 

II. Proceedings In The Florida Supreme 
Court .......................................................................8 

A. The State Court’s Decision ...........................8 

B. The Federal Issues Were Raised And 

Ruled On Below.............................................9 

REASONS FOR GRANTING THE PETITION...........10 

I. Review Is Warranted In This Case 
Because The Florida Supreme Court 
Disregarded Federal Law Governing 
Disputes Over The Appointment Of 
Electors.................................................................12 

II. Review Is Warranted Because The Court 
Below Disregarded Constitutional 
Limitations On The Appointment Of 
Electors.................................................................18 

III. Review Is Warranted Because The 
Supreme Court Of Florida’s Decision 
Conflicts With This Court’s And 

iv 

TABLE OF AUTHORITIES—Continued 
Page(s) 

Eleventh Circuit Precedent And The 
Recount Procedures Sanctioned By The 
Court Below Do Not Pass Constitutional 
Muster...................................................................20 

A. Equal Protection ...........................................21 

B. Due Process...................................................23 

C. First Amendment ..........................................26 

CONCLUSION..................................................................27 

PETITION FOR A WRIT OF CERTIORARI 

Petitioner George W. Bush, the candidate of the Re- 
publican Party for the office of President of the United 
States, respectfully prays that a writ of certiorari be is- 
sued to review the judgment of the Supreme Court of 
Florida in this case. In plain contravention of the re- 
quirements of the Constitution of the United States and 
federal law, the state supreme court has embarked on an 
ad hoc, standardless, and lawless exercise of judicial 
power, which appears designed to thwart the will of the 
electorate as well as the considered judgments of Flor- 
ida’s executive and legislative branches. Because the 
selection of presidential electors is governed directly by 
the Constitution and congressional enactments, as well 
as by state law, the court’s decision involves issues of 
the utmost federal importance. 

OPINIONS BELOW 

The opinion of the Supreme Court of Florida (App., 
infra, 1a-39a) is not yet reported. The orders of the Cir- 
cuit Court of the Second Judicial District for the County 
of Leon, Florida (App., infra, 43a-44a & 45a-51a) are 
not reported. 

JURISDICTION 

The judgment of the Supreme Court of Florida was 
entered on November 21, 2000. The jurisdiction of this 
Court rests upon 28 U.S.C. § 1257. 

The decision below compels the Florida Secretary of 
State and Elections Canvassing Commission to accept, 
and include in the State’s certification of election re- 
turns, untimely election results derived from selective 
manual recounts being conducted in certain Florida 
counties. App., infra, 42a. The judgment below is 
therefore “final” for purposes of this Court’s jurisdiction 
under §1257; indeed, it amounts to the entry of a per- 

2 

manent injunction against the responsible state officials. 
Market Street Ry. Co. v. Railroad Comm’n, 324 U.S. 
548, 551 (1945) (entry of injunction is “an effective de- 
termination of the litigation and not of merely interlocu- 
tory or intermediate steps therein”). 

As demonstrated infra, petitioner expressly raised 
below the federal questions presented in this petition. 
Accordingly, the Florida Supreme Court’s failure to ad- 
dress petitioner’s federal claims, and its assertion that 
“[n]either party has raised as an issue on appeal the con- 
stitutionality of Florida’s election laws” (App., infra, 
11a, n.10), is no barrier to review by this Court. “The 
issue of whether a federal question was sufficiently and 
properly raised in the state courts is itself ultimately a 
federal question, as to which this Court is not bound by 
the decision of the state courts.” Street v. New York, 394 
U.S. 576, 583 (1969). See also Black v. Cutter Labs., 
351 U.S. 292, 298 (1956) (this Court has a “duty to . . . 
determine for ourselves precisely the ground on which 
the judgment rests”). Accordingly, a state court cannot 
evade this Court’s review by failing to discuss federal 
questions in its opinion. Chapman v. Goodnow’s 
Adm’r., 123 U.S. 540, 548 (1887) (“If a federal question 
is fairly presented by the record, and its decision is actu- 
ally necessary to the determination of the case, a judg- 
ment which rejects a claim, but avoids all reference to it, 
is as much against the right . . . as if it has been specifi- 
cally referred to and the right directly refused.”). 

CONSTITUTIONAL PROVISIONS 
AND STATUTES INVOLVED 

Title 3, Section 5 of the United States Code pro- 
vides: “If any State shall have provided, by laws en- 
acted prior to the day fixed for the appointment of the 
electors, for its final determination of any controversy or 
contest concerning the appointment of all or any of the 
electors of such State, by judicial or other methods or 
procedures, and such determination shall have been 

3 

made at least six days before the time fixed for the meet- 
ing of the electors, such determination made pursuant to 
such law so existing on said day, and made at least six 
days prior to said time of meeting of the electors, 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. 

Article II, Section 1, Clause 2 of the Constitution 
provides: “Each State shall appoint, in such Manner as 
the Legislature thereof may direct, a Number of Elec- 
tors, equal to the whole Number of Senators and Repre- 
sentatives to which the State may be entitled in the Con- 
gress: but no Senator or Representative, or Person hold- 
ing an Office of Trust or Profit under the United States, 
shall be appointed an Elector.” 

The Fourteenth Amendment to the Constitution of 
the United States provides, in pertinent part, that “No 
State shall make or enforce any law which shall abridge 
the privileges or immunities of citizens of the United 
States; nor shall any State deprive any person of life, 
liberty, or property, without due process of law; nor 
deny to any person within its jurisdiction the equal pro- 
tection of the laws.” U.S. CONST. amend. XIV, § 1. 

The First Amendment to the Constitution of the 
United States provides, in pertinent part, that “Congress 
shall make no law .. . abridging the freedom of speech, 

. . . or the right of the people peaceably to assemble, and 
to petition the Government for a redress of grievances.” 
U.S. CONST. amend. I. 

Pursuant to this Court’s Rule 14.1(f), the provisions 
of Florida election law involved in this case, including 
Fla. Stat. §§ 102.111, 102.112, 102.141(4), 102.166, 
102.168, and 106.23, are set forth at App., infra, 52a- 
61a. 

4 

STATEMENT OF THE CASE 

On Tuesday, November 7, 2000, the citizens of the 
several States, including Florida, cast their votes for the 
electors for the President and Vice President of the 
United States. An initial count of the ballots cast in 
Florida showed that Governor George W. Bush and 
Dick Cheney received the most votes in the election, 
subject to the counting of absentee ballots. Because the 
margin of victory was less than .5 percent, however, an 
automatic statewide recount commenced. See Fla. Stat. 
§ 102.141(4). The automatic statewide recount con- 
firmed that Gov. Bush and Secretary Cheney received 
the most votes. The absentee ballots have now been 
counted, and Gov. Bush and Secretary Cheney again 
have received the most votes. Nonetheless, the outcome 
of the Florida election has not been certified, and the 
American people are still uncertain as to who their next 
President will be. Petitioners have no choice but to seek 
this Court’s interve ntion. 

I. The Underlying Litigation 

Once election results had been tabulated in most of 
the other states in the union, it became apparent that the 
victor in the State of Florida would almost certainly be 
the next President of the United States. Dissatisfied 
with the results of the initial count and the automatic re- 
count, officials of the Democratic Party filed requests 
for manual recounts in four selected Florida counties: 
Broward, Miami-Dade, Palm Beach, and Volusia Coun- 
ties. In each of these counties, Vice President Gore had 
received a substantial majority of the votes cast in the 
election. 

As this Court is undoubtedly aware, the chaos that 
erupted in the wake of these selectively focused requests 
for manual recounts has been striking. Unrestrained by 
statutory guidance, the counties have embarked upon 
various paths in attempting to divine the “intent of the 
voters.” Counties have adopted conflicting guidelines 

5 

for achieving this goal, and have repeatedly changed 
guidelines and standards in the midst of the recounting 
process. The widely varying and inconsistent policies 
(or lack of policies) underscores the absurdity of the 
purported objective of a manual recount conducted un- 
der these conditions. A manual recount in selected lim- 
ited counties without consistent standards according to 
guidelines that are constantly changing and where sub- 
jective judgments are being exercised by persons who 
know that their decisions may alter the results of the 
presidential election will not yield a more accurate tabu- 
lation than the original statewide machine count, it will 
simply undermine the credibility and integrity of any fi- 
nal result. 

The manual recount process has also undermined 
the physical integrity of the voters’ ballots. Ballots have 
been damaged throughout the manual recount process by 
being twisted, rumpled, creased, and dropped; some 
have been stained with ink, poked with pens, and 
crushed. This aggressive, careless treatment of the bal- 
lots has apparently changed their original character in 
that chads, still attached after voters cast the ballots, 
have been dislodged in bunches, littering the floor of the 
recount rooms. It has become impossible to determine 
the actual condition of the ballots as they appeared when 
they were cast in the November 7 election in the speci- 
fied counties. 

The chaos and confusion over the manual recount 
process has triggered numerous legal actions. Two of 
those legal actions reached the Florida Supreme Court 
and are the subject of this petition. 

A. The Recount Authority Litigation 

One lawsuit at issue involves the authority of the se- 
lected counties to conduct a manual recount of the votes 
cast on November 7. This proceeding centers on a re- 
quest by the Palm Beach County Canvassing Board, 
which asked whether an “error in the vote tabulation” 

6 

under Florida election law (Fla. Stat. § 102.166(5)), 
which was the statutory condition precedent for the ex- 
ercise of the authority to initiate manual recount pro- 
ceedings, referred to errors in the tabulation system itself 
or, more broadly, included discrepancies between the 
number of votes determined by the tabulation system 
and a sample manual recount. Exhibits A and B, at- 
tached to Palm Beach County Canvassing Board’s 
Emergency Petition For Extraordinary Writ in case 
number SC00-2346. 

In response to the Palm Beach request, the state Di- 
vision of Elections, the State office charged by the legis- 
lature with responsibility for interpreting Florida elec- 
tion law, Fla. Stat. § 106.23, issued an opinion that man- 
ual recounts are not authorized unless the County Can- 
vassing Board concludes that “the vote tabulation sys- 
tem fails to count .. . properly punched punchcard bal- 
lots.” Exhibit C, attached to Palm Beach County Can- 
vassing Board’s Emergency Petition For Extraordinary 
Writ in case number SC00-2346. The opinion continued 
that “unless the discrepancy between the number of 
votes determined by the tabulation system and by the 
manual recount of four precincts is caused by incorrect 
election parameters or software errors, the county can- 
vassing board is not authorized to manually recount bal- 
lots for the entire county. . . .” Id. The following day 

Florida’s Attorney General issued an advisory opinion 
on the same issue that contradicted the Division of Elec- 
tion’s advisory opinion. Exhibit D, attached to Palm 
Beach County Canvassing Board’s Emergency Petition 
For Extraordinary Writ in case number SC00-2346. 

In response to these conflicting opinions from the 
Florida executive branch, the Palm Beach County Can- 
vassing Board filed a pleading with the Florida Supreme 
Court in which it asked the court to resolve the conflict. 

7 

B. The Recount Certification Litigation 

The second legal proceeding relevant to this petition 
arose out of the Florida statutory deadline for certifying 
election results, which by law is set for 5:00 p.m. on the 
seventh day after the election, i.e., Tuesday, November 

14. Fla. Stat. § 102.111(1).1 After a Florida Circuit 
Court enjoined the Secretary of State from declaring that 
all manual recounts had to be completed by the statutory 
deadline and directed her to exercise her discretion to 
determine whether to include untimely election returns 
in her certification of the election results, the Secretary 
asked counties interested in submitting explanations for 
extending the deadline to do so by 2:00 p.m. on 
Wednesday, November 15. FDEC App. 5, Ex. E.2 Af- 
ter receiving submissions from four counties (FDEC 
App. 5, Ex. O), the Secretary of State exercised her dis- 
cretion and concluded that insufficient reasons had been 
given to justify extending the deadline to include the re- 
sults of manual recounts not yet complete. FDEC App. 
5, Ex. H. 

Vice President Gore and others sued for an order di- 
recting the Secretary to waive the statutory deadline and 
allow late results from three counties—Broward, Miami- 
Dade, and Palm Beach—to be included in the final vote 
tally. FDEC App. 12. On November 17, after a hearing 
the previous afternoon, the Circuit Court for Leon 
County issued its decision denying the motion. FDEC 
App. 13. The court held that the Secretary of State had 
not violated its November 14 Order and explained that 

1 Volusia County submitted its manual recount results be- 
fore the 5:00 p.m., November 14 deadline and, therefore, is 
in a different category than the other three counties. 

2 “FDEC App.” refers to the Appendix to the Initial Brief 
filed on behalf of Albert Gore, Jr., and the Florida Democ- 
ratic Executive Committee in the court below. 

8 

“the Secretary has exercised her reasoned judgment to 
determine what relevant factors and criteria should be 
considered, applied them to the facts and circumstances 
pertinent to the individual counties involved, and made 
her decision.” App., infra, 44a. 

II. Proceedings In The Florida Supreme Court 

The Supreme Court of Florida consolidated the two 
cases discussed above: (a) the original action brought 
by the Palm Beach County Canvassing Board asking the 
court to resolve the conflicting advisory opinions issued 
by the Division of Elections and the Attorney General; 
and (b) the appeal from the Leon County Circuit Court’s 
decision that the Secretary of State had not abused her 
discretion in deciding not to include results from manual 
recounts filed after the 5:00 p.m. November 14 deadline 
in the statewide tabulation. 

A. The State Court’s Decision 

On Friday, November 17, 2000, the Florida Su- 
preme Court sua sponte enjoined the Secretary of State 
from certifying the November 7 presidential election re- 
sults for the State of Florida until further order from the 
Court. App., infra, 40a-41a. On Monday, November 
20, after weekend briefing by the parties, the court heard 
oral argument. 

Late on the evening of November 21, 2000, the 
Florida Supreme Court issued its opinion reversing the 
orders of the state trial court. App., infra, 1a-39a. The 
supreme court held that the trial court “erred in holding 
that the Secretary [of State] acted within her discretion 
in prematurely rejecting any amended returns that would 
be the result of ongoing manual recounts.” App., infra, 
35a. The supreme court reached this conclusion by an- 
nouncing a new rule of law to constrain the Secretary’s 
discretion under Fla. Stat. §§ 102.111 and 102.112, de- 
claring for the first time that “the Secretary may reject a 
Board’s amended returns only if the returns are submit- 

9 

ted so late that their inclusion will preclude a candidate 
from contesting the certification or preclude Florida’s 
voters from participating fully in the federal electoral 
process.” Id. at 37a. Based on this newly fashioned, 
hitherto unrecognized rule of law, the Florida Supreme 
Court directed the Secretary of State to accept untimely 
manual recount returns through Sunday, November 26, 
2000. Id. at 38a-39a. Moreover, the court maintained 
its injunction preventing the Secretary from certifying 
any election results by that date, and directed the Secre- 
tary to include in her certified election results all manual 
recount returns received by that date. Id. at 39a. 

B. The Federal Issues Were Raised And 

Ruled On Below 

Each of the issues presented by this petition was ex- 
pressly raised in the court below. First, petitioners ar- 
gued that a post hoc judicial decision on the appointment 
of electors would vi olate 3 U.S.C. §5, which requires 
that any such disputes be resolved in accordance with 
laws enacted prior to election day. Bush Answer Br. 42- 
43; App., infra, 62a. Second, petitioners contended that 
any decision overriding the Florida legislature’s proce- 
dures for appointing electors (including the November 
14 deadline for certifying votes) would violate Article II, 
which vests sole authority over such matters in the legis- 
latures of the several States. Bush Answer Br. 43 n.15; 
App., infra, 62a-63a, n.15. And third, petitioners argued 
that the manual recount being sought by the Gore faction 
would “violat[e] the United States Constitution,” by 
diluting votes in violation of the Due Process and Equal 
Protection Clauses, by allowing standardless decision- 
making in the voting arena in violation of the Due Proc- 
ess Clause, and by impairing the right of association 
through voting in violation of the First Amendment. 
Bush Answer Br. 43-44; App., infra, 63a-64a. 

As noted above, the Supreme Court of Florida did 
not expressly rule on petitioner’s federal claims. Be- 

10 

cause the judgment below necessarily rejects those fed- 
eral claims on the merits, however, those federal ques- 
tions are squarely presented here. 

REASONS FOR GRANTING THE PETITION 

Few issues could be more important than those pre- 
sented in this case. At stake is the lawful resolution of a 
national election for the office of President of the United 
States. As this Court has often recognized, the Ameri- 
can public’s right to vote is one of the most sacred pro- 
tected by our Constitution: “No right is more precious 
in a free country than that of having a voice in the elec- 
tion of those who make the laws under which, as good 
citizens, we must live. Other rights, even the most ba- 
sic, are illusory if the right to vote is undermined.” Wil- 
liams v. Rhodes, 393 U.S. 23, 31 (1968) (quoting Wes- 
berry v. Sanders, 376 U.S. 1, 17 (1964)). The Florida 
Supreme Court’s decision poses a clear and present dan- 
ger to that right, and should be corrected forthwith to en- 
sure that our Nation continues to be governed by the rule 
of law. 

The choosing of presidential electors is a matter of 
great national importance and interest. As this Court 
stated in Anderson v. Celebrezze, 460 U.S. 780 (1983), 
“[I]n the context of a Presidential election, state- 
imposed restrictions implicate a uniquely important na- 
tional interest. For the President and Vice President of 
the United States are the only elected officials who rep- 
resent all the voters in the Nation. Moreover, the impact 
of the votes cast in each State is affected by the votes 
cast for the various candidates in other States.” Id. at 
794-95. Given the national significance of the Florida 
election results, it is essential that the counting of ballots 
be conducted in a fair and consistent manner in accor- 
dance with established Florida law. Counties in Florida, 
however, have undergone a blatantly arbitrary, subjec- 
tive, and standardless process in attempting to count bal- 
lots by hand in an effort to divine the intent of the vo t- 

11 

ers. The Nation’s citizens have witnessed this standard- 
less process unfold as they anxiously await a resolution 
of the election outcome. By retroactively changing the 
law in Florida through judicial intervention, the Su- 
preme Court of Florida’s decision preventing the Secre- 
tary of State of Florida from exercising her legislatively 
conferred authority to perform the act of certification 
that would complete the electoral process in Florida has 
added to that angst and has strayed from established fed- 
eral constitutional and statutory law. 

Governor George W. Bush and Dick Cheney re- 
ceived the most votes cast in Florida, as initially 
counted, as recounted, and as retabulated again after re- 
ceipt of overseas ballots. Nevertheless, the Secretary of 
State of Florida has been precluded from certifying these 
results or appointing electors in accordance with that 
popular vote, pending the completion of an arbitrary, 
standardless and selective manual recount of ballots cast 
in three heavily populated, predominantly Democratic 
counties in Florida. 

This Court’s review of the Supreme Court of Flor- 
ida’s decision is warranted because it “decided an im- 
portant federal question that conflicts with relevant deci- 
sions of this Court,” Sup. Ct. R. 10(c); it “decided an 
important federal question in a way that conflicts with 
the decision of . . . a United States court of appeals,” 
Sup. Ct. R. 10(b); and it “decided an important question 
of federal law that has not been, but should be, settled by 
this Court .. . .” Sup. Ct. R. 10(c). As discussed in 

greater detail below, this case presents important ques- 
tions regarding the federal statutory and constitutional 
restraints on the ability of States to impose post hoc re- 
quirements on the appointment of presidential electors, 
and to change requirements for the resolution of contro- 
versies concerning the appointment of electors. The de- 
cision below also conflicts with precedents of this Court 
and the court of appeals regarding the scope of the First 
and Fourteenth Amendment protections for the funda- 

12 

mental right to vote. Moreover, these important ques- 
tions are presented in the context of one of the closest 
elections for President in our Nation’s history. 

There is a profound national interest in ensuring the 
fairness and finality of elections, particularly an election 
for the highest office in the land. This is precisely the 
type of question that the Nation justifiably expects this 
Court to decide. Indeed, absent a decision by this Court, 
the election results from Florida could lack finality and 
legitimacy. The consequence may be the ascension of a 
President of questionable legitimacy, or a constitutional 
crisis. Quite simply, this is the sort of case that this 
Court should unquestionably hear. 

I. Review Is Warranted In This Case Because 
The Florida Supreme Court Disregarded 
Federal Law Governing Disputes Over The 
Appointment Of Electors 

Although election procedures are often governed 
exclusively by state law, that is not the case in elections 
for the members of the Electoral College, who choose 
the President and Vice President of the United States. 
While some of the details of appointing presidential 
electors are left to the several States, the basic frame- 
work is established by the Constitution itself, in Section 
1 of Article II and the Twelfth Amendment. Moreover, 
Congress has enacted legislation to implement the con- 
stitutional framework, and those federal laws, of course, 
reign supreme over state laws in this area. U.S. CONST., 
art. VI, cl. 2. 

In particular, Congress has provided that when “any 
controversy or contest concerning the appointment of all 
or any of the electors” from a State arises, the dispute 
must be resolved exclusively by reference to “laws en- 
acted prior to” election day. 3 U.S.C. §5 (emphasis 
added). The evident purpose of this federal law is to en- 
sure that the applicable rules cannot be changed once the 
voters have gone to the polls. As Representative Wil- 

13 

liam Craig Cooper of Ohio explained in the congres- 
sional debate on this provision (Act of Feb. 3, 1887, ch. 
90, § 2, 24 Stat. 373), “these contests, these disputes be- 
tween rival electors, between persons claiming to have 
been appointed electors, should be settled under a law 
made prior to the day when such contests are to be de- 
cided.” 18 CONG. REC. 47 (Dec. 8, 1886) (remarks of 
Rep. Cooper); see also id. (“these contests should be de- 
cided under and by virtue of laws made prior to the exi- 
gency under which they arose”); id. (“How could any 
court, how could any tribunal intelligently solve the 
claims of parties under a law which is made concurrent, 
to the very moment perhaps, with the trouble which they 
are to settle under the law?”). Representative Cooper’s 
concerns, although expressed more than a century ago, 
seem remarkably prescient when read against the back- 
drop of events of the past fifteen days in Florida. As he 
asked rhetorically, in opposing the views of congres- 
sional Democrats who wished to permit the use of retro- 
active rulemaking to resolve electoral disputes: “To 
what anarchy, to what confusion, to what riot, if you 
please, Mr. Speaker, might such a course of procedure 
lead!” Id. 

Despite the express federal statutory prohibition 
against the post hoc creation of new legal rules to affect 
the outcome of controversies over the appointment of 
presidential electors, the Supreme Court of Florida has 
authorized a clear departure from the established legal 
requirements set forth by the Florida Legislature that 
were in place on November 7. Prior to election day 
2000, the Florida Legislature had enacted clear legisla- 
tive directives regarding the certification of votes cast in 
the Presidential election. Under § 102.111 of the Florida 
Statutes, for example, election returns by county can- 
vassing boards “must be filed by 5:00 p.m. on the 7th 
day following the . . . general election . . . .” By con- 
trast, under the new rule of law announced by the deci- 
sion below, the effective deadline for submission of 
election returns has been extended from November 14 

14 

until November 26 (App., infra, 37a), nearly tripling the 
statutory seven-day time period mandated by the Florida 
Legislature. 

In addition, §102.112 of the Florida Statutes pro- 
vides that the Elections Canvassing Commission “shall . 

. . ignore[]” county returns filed after 5:00 p.m. on the 
seventh day following the election, and “shall . . . cer- 
tif[y]” the election based on the results returned before 
the deadline. Section 102.111(1) confirms that late-filed 
returns “may be ignored” by the Elections Canvassing 
Commission.3 See Fla. Stat. §102.112. Notwithstand- 
ing this clear, and preexisting, legislative directive, the 
Supreme Court of Florida has now concluded retroac- 
tively that the Elections Canvassing Commission could 

3 Section 102.112(1) of the Florida statutes provides that if 
election returns are not received by the Department of State 
by 5:00 p.m. on the seventh day following the election, the 
returns “may be ignored.” This statute, enacted in 1989, ap- 
pears to have been passed in response to the Supreme Court 
of Florida’s decision in Chappell v. Martinez, 536 So. 2d 
1007 (Fla. 1988). In Chappell, one of the six counties in the 
Fourth Congressional District failed to submit its original 
certificate until two days after the statutory deadline in § 
102.111. The county had, however, informed the Depart- 
ment of State by telephone of its results prior to the deadline. 
The supreme court ruled that the county had substantially 
complied with § 102.111 and thus allowed the county’s votes 
to count. See Chappell, 536 So. 2d at 1008-09. In passing § 
102.112, however, the State Legislature did not repeal § 
102.111. Nor does this case involve a situation like that at 
issue in Chappell, in which a county conducting a recount in- 
formed the Department of State of its results prior to the 
deadline, but simply failed to submit its official results in 
writing by the deadline. In any event, as discussed below, § 
102.112 states that late results may be ignored, not that such 
results may not be ignored, as the Florida Supreme Court has 
now directed. 

15 

not ignore late-filed returns, but must hold the results of 
a national election open for an additional extended pe- 
riod of time, pending the completion of selective manual 
recounts in indivi dual counties. App., infra, 34a-37a. 

In addition, the judicially established waiver of the 
statutory deadline contained in § 102.112, is contrary to 
the legislative provisions contained in § 102.168 provi d- 
ing for contests to election results. See Fla. Stat. § 
102.168. That statute clearly anticipates that results will 
be certified in a timely fashion, in order for the results to 
be contested in court. Pushing back the deadline for cer- 
tification by judicial fiat thus runs headlong into the 
Florida Legislature’s intent to allow a period of time for 
court challenges. 

The Supreme Court of Florida’s decision also devi- 
ated from its prior decisions making clear that the 
“judgments” of officials such as the Secretary of State in 
fulfilling their specifically charged duties in the election 
process “are entitled to be regarded by the courts as pre- 
sumptively correct.” Krivanek v. The Take Back Tampa 
Political Comm., 625 So. 2d 840, 844 (Fla. 1993) (quot- 
ing Boardman v. Esteva, 323 So. 2d 259, 268 n.5 (Fla. 
1975)); see also Greyhound Lines, Inc. v. Yarborough, 
275 So. 2d 1, 3 (Fla. 1973) (“This Court has often reiter- 
ated the principle that a construction of a statute by the 
administrative body in whom authority to administer is 
reposed is entitled to great weight and should not be 
overturned unless clearly contrary to the language of the 
statute.”). This arbitrary judicial departure from the 
well-established law of Florida—as it plainly stood prior 
to November 7, 2000—is in flagrant violation of Con- 
gress’s federally imposed requirement that controversy 
over the appointment of electors be resolved solely un- 

16 

der legal standards “enacted prior to” the date of the 
election. 3 U.S.C. § 5.4 

Even if the Secretary of State might be authorized to 
excuse county board noncompliance with the 5:00 p.m. 
November 14 deadline (see Fla. Stat. §102.112), noth- 
ing in Florida law as it existed before November 7, 
2000, required that she do so, and certainly there was no 
preexisting rule of Florida law that mandated that result 
in the circumstances presented here. The Florida Legis- 
lature directly contemplated close elections when it en- 
acted the controlling statutory provisions at issue here. 
Indeed, the State’s legislative body required that when 
the margin of victory in an election is less than .5 per- 
cent, an automatic statewide recount is to be held. See 
Fla. Stat. § 102.141(4). The Florida Legislature also 
contemplated that manual recounts might be requested 
by candidates or parties (but not by voters) in some cir- 
cumstances, but established no standards to guide the 
discretion of county canvassing boards in determining 
whether to conduct such manual recounts See Fla. Stat. 

4 The Supreme Court of Florida purported to follow prior 
Florida case law in reaching its decision but that claim is 
manifestly without foundation. Under 3 U.S.C. § 5, of 
course, this Court has an independent obligation to ensure 
that Florida resolves any controversies over appointment of 
electors by reference to the rules of law enacted prior to the 
election, not post hoc standards announced for the first time 
some two weeks after the election. Moreover, this Court has 
repeatedly recognized that when a state court rests its deci- 
sion on a nonfederal ground that “is so plainly unfounded 
that it may be regarded as essentially arbitrary,” such action 
does not remove consideration of the federal question from 
this Court’s jurisdiction. See McCoy v. Shaw, 277 U.S. 302, 
303 (1928); Enterprise Irrigation Dist. v. Farmers Mut. Ca- 
nal Co., 243 U.S. 157, 164 (1917); NAACP v. Alabama ex 
rel. Patterson, 357 U.S. 449, 454-55 (1958). 

17 

§ 102.166(4)(c). In passing §§ 102.111 and 102.112, 
however, the legislature plainly determined that finality 
had an important place in the certification process as 
well. 

The Florida Legislature thus consciously weighed 
the interests of finality against competing interests sup- 
porting manual recounts. It is clear from the legislative 
enactments that the court struck the balance between fi- 
nality and manual recounts in such a way that ongoing 
manual recounts do not warrant abandoning the statuto- 
rily imposed deadline found in §§ 102.111 and 102.112, 
unless, in the most permissive reading of the statutes, the 
Secretary of State decides in her lawfully granted discre- 
tion that such late-filed returns should be included in the 
final election results. Where, as here, no preexisting 
rule of law required (or even authoritatively authorized) 
the Secretary of State to waive the time limit on the facts 
presented, 3 U.S.C. § 5 precludes the retroactive en- 
forcement of a new rule of law compelling that previ- 
ously unknown result. 

The federal rule enunciated by Congress in 3 U.S.C. 
§ 5 serves obvious and important public policy interests 
by prohibiting precisely what is happening in Florida to- 
day, where the candidate who did not receive the most 
votes and his supporters are attempting to overturn the 
results of the Presidential election by changing the rules 
after the election has been held. Section 5’s prohibition 
against such retroactive rulemaking in the election con- 
text provides a statutory corollary to the principle of 
federal constitutional law recognized by the Eleventh 
Circuit in Roe v. Alabama, 43 F.3d 574 (11th Cir. 1995). 
As the court of appeals held in that case, constitutional 
principles of due process and fundamental fairness pre- 
clude the States from adopting “a post-election departure 
from previous practice” and applying that post-election 
rule retroactively to determine the outcome of an elec- 
tion. Id. at 581. Here, as in Roe, “had the candidates . . . 
known” that the state supreme court would retroactively 

18 

extend the deadline for submission of election returns 
notwithstanding the plain language of the governing 
statutes, “campaign strategies wo uld have taken this into 
account .. . .” Id. at 582. Indeed, the candidates’ deci- 
sions whether to seek a manual recount in specific addi- 
tional counties might well have been affected had peti- 
tioner and other candidates known that the Florida Su- 
preme Court would subsequently extend the statutory 
deadline nearly threefold. 

The application of 3 U.S.C. § 5 in these circum- 
stances is straightforward. Perhaps because no candi- 
date has previously resisted so strenuously and resource- 
fully, the certification of election results as has Vice 
President Gore, this Court has not previously been called 
upon to decide whether or not the States must adhere to 
preexisting law in resolving election disputes. But the 
plain language of the federal statute indicates that they 
must do so, and it is also plain that the Florida Supreme 
Court failed to do so. Given the importance of the issue 
to the Nation, this is not a question that can await further 
development in the lower courts. The Court should de- 
cide—now—whether or not Congress meant what it said 
when it directed that controversies concerning the ap- 
pointment of electors be decided only “by laws enacted 
prior to” election day. 3 U.S.C. §5; see Sup. Ct. R. 
10(c) (including among the considerations supporting 
review in this Court, state court decisions that decide 
“an important question of federal law that has not been, 
but should be, settled by this Court”). If Congress did, 
then the judgment below must be reversed. 

II. Review Is Warranted Because The Court Be- 
low Disregarded Constitutional Limitations 
On The Appointment Of Electors 

The congressional directive that States decide con- 
troversies concerning electors according to “laws en- 
acted prior to” election day (3 U.S.C. §5) is derived 
from the constitutional command that each State appoint 

19 

electors “in such Manner as the Legislature thereof may 
direct.” U.S. Const. art. II, § 1, cl. 2. Significantly, the 
Framers did not see fit to leave the mechanics of elec- 
toral appointment to either the judicial or executive 
branch of the several States, but instead entrusted the 
legislative arm—the one, as in the federal government, 
most representative of the popular will—with authority 
to articulate the standards by which electors would be 
chosen. 

In Florida, the “manner” in which the legislature has 
directed that electors be appointed is quite clear. The 
citizens vote for them on Election Day (which is estab- 
lished by federal law), and the various counties must 
certify the results of the election to the state Division of 
Elections by 5:00 p.m. the following Tuesday. Fla. Stat. 
§ 102.112. As soon as practicable thereafter, the legisla- 
ture has commanded that the results of the election 
“shall” (or at least “may”) be certified, while the results 
from any counties not reporting before the statutory 
deadline “shall” (or, again, at least “may”) be ignored. 
Fla. Stat. §§ 102.111, 102.112. Notably, the creation of 
this timetable intentionally leaves time for election con- 
tests, as the legislature clearly provided for in § 102.168. 
Under this legislative directive, the results in Florida— 
as all acknowledge—are clear: The electors for the Re- 
publican candidates garnered more votes before the 
statutory deadline, and that outcome did not change 
when the results of absentee balloting (which, under 
federal law, must be counted notwithstanding the state 
deadline) were considered. 

The Florida Supreme Court has seen fit to revise the 
“manner” in which Florida’s electors are chosen by di- 
recting the Secretary of State to consider results from 
those counties that are conducting manual recounts, 
notwithstanding the fact that the statutory deadline has 
long since passed and no waiver of that deadline has 
been granted by the State agency authorized by the leg- 
islature to grant such relief: the Elections Canvassing 

20 

Commission. The Constitution admits of no such post 
hoc alterations to the scheme of electoral appointments. 
Had the Florida legislature seen fit to vest the decision 
in the hands of the judiciary, presumably it could have 
done so; but the simple fact is that it did not do so. 

It is no accident that Article II reserves the manner 
of selecting electors to the legislatures of the several 
States. As this Court has explained, “[t]hat was not a 
term of uncertain meaning when incorporated into the 
Constitution. What it meant when adopted it still means 
for the purposes of interpretation. A Legislature was 
then the representative body which made the laws of the 
people.” Hawke v. Smith, 253 U.S. 221, 227 (1920). 
And then, as now, a legislature was not a state court, sit- 
ting after the fact to decide what rules should be adopted 
and applied. Rather, by requiring the legislative branch 
to set forth the manner in which electors would be cho- 
sen, the Framers undoubtedly wanted to ensure that the 
rules would be specified in advance in order that there 
could be no doubt that their application in particular cir- 
cumstances was reflective of the will of the people. The 
events in Florida have only confirmed the wisdom of the 
constitutional design, faithful adherence to which re- 
quires that this Court review the Florida Supreme 
Court’s usurpation of legislative power in defiance of 
the Constitution’s plan. 

III. Review Is Warranted Because The Supreme 
Court Of Florida’s Decision Conflicts With 
This Court’s And Eleventh Circuit Precedent 
And The Recount Procedures Sanctioned By 
The Court Below Do Not Pass Constitutional 
Muster 

The Florida Supreme Court’s decision opens the 
door to an electoral catastrophe. The court below has 
essentially given the green light to a standardless exer- 
cise in which vote-counters in a few, carefully selected 
counties will divine the “intent of the electorate” without 

21 

any legislative guidance or uniform standards. The 
process therefore varies from county to county, and cri- 
teria for counting ballots as votes has changed repeat- 
edly in each recount county. Voters in counties not se- 
lected for recount will have ballots tabulated pursuant to 
wholly different, less permissive standards. The results 
of such lawlessness cannot be squared with fundamental 
principles of our constitutional structure. 

When it became apparent that some Florida officials 
were bent on paving the road to chaos that the state su- 
preme court has now endorsed, Governor Bush and Sec- 
retary Cheney, and various Florida voters, sought an in- 
junction in federal court. Both the district court and the 
court of appeals denied their request for an interlocutory 
injunction, although the appellate court did not foreclose 
the possibility of appropriate relief if necessary. Peti- 
tioner Bush, among others, has petitioned this Court for 
review of the federal case (Siegel v. LePore, No. 00-___, 
filed contemporaneously herewith), which raises the 
same fundamental due process and equal protection con- 
stitutional questions as does the Florida Supreme 
Court’s decision. Since those questions are addressed 
more fully in that petition, which is being submitted to 
the Court concurrently with this one, Petitioner will only 
summarize the constitutional problems here. 

A. Equal Protection 

The dilution of the weight of a citizen’s vote consti- 
tutes a denial of the right to vote. Reynolds v. Sims, 377 
U.S. 533, 555 (1964). As a result, the Equal Protection 
Clause demands that the votes of similarly situated vo t- 
ers be given similar effect. See, e.g., O’Brien v. Skinner, 
414 U.S. 524 (1974); Roman v. Sincock, 377 U.S. 695 
(1964); WMCA, Inc. v. Lomenzo, 377 U.S. 633 (1964). 
Florida’s selective manual recount procedures, as ap- 
proved by the court below, arbitrarily treat voters differ- 
ently simply because they happen to live in different 
parts of the State, and accordingly conflict with prece- 

22 

dent of this Court cited above. A partially punched bal- 
lot, for example, may not be counted at all in most coun- 
ties, might be counted as a vote in other counties, and in 
some counties it might be counted as a vote or not— 
depending on which set of ever-changing rules the elec- 
tion officials happen to be applying at the time it is re- 
viewed. This has the effect not only of arbitrarily deny- 
ing the right to vote to some persons, but of diluting the 
votes of the majority of Floridians who correctly cast 
their ballots. Either way, the present regime cannot 
withstand equal protection analysis. 

The Supreme Court of Florida’s decision cannot be 
reconciled with this Court’s opinion in O’Brien, in 
which it struck down a New York law that allowed an 
inmate incarcerated outside of his home county to cast 
an absentee ballot, while not allowing a similarly situ- 
ated inmate to cast a ballot when incarcerated within his 
home county. See O’Brien, 414 U.S. at 528-30. The 
manual recount scheme condoned by the Supreme Court 
of Florida suffers from failings similar to those con- 
tained in the New York law struck down in O’Brien. 
The right of a citizen to vote, and to have that vote 
counted equally to the votes of others similarly situated, 
cannot be infringed on the sole basis of the county in 
which the citizen resides, anymore than on the basis of 
the county in which a prisoner is incarcerated. Because 
the Supreme Court of Florida’s decision “conflicts with 
[a] relevant decision[] of this Court,” review is war- 
ranted. Sup. Ct. R. 10(c). 

The decision below also directly conflicts with the 
Eleventh Circuit’s decision in Roe v. Alabama, 43 F.3d 
574 (11th Cir. 1995). The court below held that con- 
ducting manual recounts in selected Democratic coun- 
ties in the State long past the seven-day deadline im- 
posed by state law and in a manner flatly inconsistent 
with the authoritative interpretation of the law by the 
state official charged with enforcing it does not violate 
the federal Constitution. In Roe, by contrast, as dis- 

23 

cussed above, the Eleventh Circuit held that to change 
the voting rules after election day and thus count some 
votes that should not be counted would unconstitution- 
ally dilute the votes of those who complied with the es- 
tablished voting requirements. Id. at 581-82. In this 
case, conducting a manual recount in selected counties 
with no established standards in place to determine 
whether to conduct such manual recounts and, if so, 
what procedures to follow, subjects identically situated 
voters to different treatment solely on account of the 
county in which they reside. To include ballots in the 
final statewide tally that were counted solely because 
they were subjected to the different scrutiny attendant to 
a manual recount, would be as improper in this case as 
counting the noncompliant ballots at issue in Roe. As in 
Roe, the counting of ballots that should not be counted 
will unconstitutionally dilute the votes of those who 
properly cast their ballots on election day and those who 
do not live in the counties selected for a manual recount. 
In addition to being erroneous as a general matter, there- 
fore, the Supreme Court of Florida’s decision also fails 
to comport with the Eleventh Circuit’s holding in Roe. 
This conflict further supports review in this Court. Sup. 
Ct. R. 10(b). 

B. Due Process 

The manual recount underway in certain Florida 
counties is unconstitutional because it is being con- 
ducted in the absence of meaningful objective standards. 
The officials responsible for overseeing the turmoil and 
constantly changing process that the nation has been 
watching for the past two weeks have failed to articulate 
rules for when a recount will be ordered, how long it 
will take, how it will be conducted, what votes will (and 
will not) be counted, and so on. This uncertainty derives 
from the fact that Florida law provides no meaningful 
guidance to help local canvassing boards determine 
whether to conduct a manual recount and, if so, the 
process to follow in determining whether to count any 

24 

given ballot. The only “standard” conceivably con- 
tained in the Florida statutes is the extremely general 
one that canvassing board’s are to attempt “to determine 
the voter’s intent.” Fla. Stat. § 102.166(7). This vague 
statement of generalized purpose absolutely fails to pro- 
vide any meaningful guide for local canvassing boards 
to follow in determining how to divine the voter’s intent. 

This total lack of guidance has, not surprisingly, led 
counties to apply different “standards” to the evaluation 
process, and, moreover, to the extent such standards 
have been announced, they have been renounced or 
changed within minutes or hours. Two counties that 
voted not to proceed with county-wide manual recounts 
reversed those decisions within days. The result is a 
chaotic, and entirely standardless and arbitrary, regime 
in which a question of national importance is being de- 
cided by government actors wholly unconstrained by 
limits or standards. It does not comport with the mini- 
mum standards of due process. See, e.g., Logan v. Zim- 
merman Brush Co., 455 U.S. 422 (1982). 

Moreover, counties have even departed from their 
past practices in conducting manual recounts. For ex- 
ample, the Broward County Canvassing Board has pre- 
viously rejected the need for a manual recount in a situa- 
tion strikingly similar to this one. In 1991, after an ini- 
tial machine recount of the votes cast in a local city 
council race changed the margin of victory from five 
votes to three, the Board declined to conduct a manual 
recount. The Board concluded that the change in num- 
bers was simply the result of “hanging paper chads” that 
fell away in the second count, causing two ballots ini- 
tially counted for the victor to become overvotes (and 
thus no vote) because holes were actually punched for 
two candidates. See Broward County Canvassing Bd. v. 
Hogan, 607 So. 2d 508, 509 (Fla. Dist. Ct. App. 1992). 
The Board determined that such “voter errors . . . are 
caused by hesitant piercing, no piercing, or intentional 
or unintentional multiple piercing of computer ballot 

25 

cards,” and did not warrant a manual recount. See id.5 
Despite this prior practice of not conducting manual re- 
counts in cases where a discrepancy between the initial 
count and a machine recount was due to this kind of 
“voter error,” Broward County opted to change course 
and conduct a manual recount in this case. 

Similarly, Palm Beach County is reportedly consid- 
ering reversing course from its prior guidelines to count 
so-called “dimpled” chads. See Dan Balz, Bush Spurns 
Gore Recount Plan; Fla. Official Rejects New Tallies, 
WASH. POST, Nov. 16, 2000, at A1; Don Van Natta, Jr., 
Dimpled Votes Are New Hope For Democrats, N.Y. 
TIMES, Nov. 22, 2000, at A1, available at 
http://www.nytimes.com/2000/11/22/politics/22DISP.ht 
ml?pagewanted=2. In the Palm Beach County guide- 
lines on counting ballots issued in November 1990, 
however, the County Canvassing Board made clear that 
“a chad that is fully attached, bearing only an indenta- 
tion, should not be counted as a vote.” See Guidelines 
on Ballots With Chads Not Completely Removed, 
Adopted by the November 6, 1990 Canvassing Board. 

The Eleventh Circuit made clear in Roe that chang- 
ing the rules after an election to count ballots that his- 
torically had not been counted violates the Due Process 
Clause. See Roe v. Alabama, 43 F.3d 574, 580-81 (11th 
Cir. 1995). Nonetheless, this is precisely what Broward 
County and Palm Beach County are doing: They are 
engaged in a “post-election departure from [their] previ- 
ous practice[s].” Id. at 581. This change in approach in 
determining whether to conduct a manual recount and, if 
so, how to count ballots, stands in direct conflict with 

5 The Fourth District Court of Appeals for Florida upheld 
the Board’s decision not to conduct a manual recount in the 
Hogan case. See Broward County Canvassing Bd. v. Hogan, 
607 So. 2d 508, 510 (Fla. Dist. Ct. App. 1992). 

26 

the Eleventh Circuit’s holding in Roe. Furthermore, 
these changes underscore the utter lack of standards in 
the Florida statute to guide local canvassing boards and 
the unconstitutional nature of the manual recounts that 
the Supreme of Court of Florida has approved. 

C. First Amendment 

Voting is expressive and associational activity pro- 
tected by the First Amendment. Williams v. Rhodes, 
393 U.S. 23 (1968). The arbitrary and standardless re- 
counting regime approved by the Florida Supreme 
Court, however, violates the First Amendment rights of 
those Floridians who voted. It raises some citizens’ 
voices above others, and drowns out still others. It dis- 
torts, and dilutes, the expression of political will that the 
people of Florida made on November 7—and which has 
been confirmed in subsequent recounts. It threatens to 
subvert the views of the many to those of the few, whose 
votes—after being reviewed according to no discernible, 
much less articulable, standards—are deemed by inter- 
ested local officials to have more value than those cast 
in the rest of the State. The First Amendment cannot 
withstand such governmental overreaching. 

27 

CONCLUSION 

The petition for a writ of certiorari should be 
granted. 

Respectfully submitted. 

MICHAEL A. CARVIN 
COOPER, CARVIN & 

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

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

GEORGE J. TERWILLIGER III 
TIMOTHY E. FLANIGAN 
MARCOS D. JIMÉNEZ 
WHITE & CASE LLP 
First Union Financial Center 
200 South Biscayne Blvd. 
Miami, Florida 33131 
(305) 371-2700 
THEODORE B. OLSON 

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

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

Counsel for Petitioner 

November 22, 2000 

28 

70150634_1.DOC