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 Petition For A Writ Of Certiorari 

To The Supreme Court Of Florida 
REPLY BRIEF FOR PETITIONER 

MICHAEL A. CARVIN 
COOPER, CARVIN & 

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

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

Counsel of Record 
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 

TABLE OF CONTENTS 

Page 

I. This Court’s Immediate Review Of The 
Federal Questions Squarely Presented In 
This Case Is Necessary And Appropriate ..........1 

II. Review Is Warranted In This Case 
Because The Florida Supreme Court 
Disregarded Federal Law As Enunciated 
In The Due Process Clause And 3 U.S.C. 
§ 5 ..........................................................................4 

III. Review Is Warranted Because The 
Supreme Court of Florida’s Decision Is 
In Contravention of Article II Of The 
Constitution............................................................7 

CONCLUSION ............................................................8 

ii 

TABLE OF AUTHORITIES 

CASES Page(s) 

Anderson v. Celebrezze, 460 U.S. 780 (1983) ..............1,2 

Brinkerhoff-Faris Trust & Sav. Co. v. Hill, 281 

U.S. 673 (1930)..............................................................3 

Buckley v. Valeo, 424 U.S. 1 (1976)..................................2 

Burroughs v. United States, 290 U.S. 534, 544-48 
(1934) ...........................................................................2,8 

Duncan v. Poythress, 657 F.2d 691 (5th 

Cir. 1981), cert. dismissed, 459 U.S. 1012 
(1982) ..............................................................................8 

First Alabama Bank v. Parsons Steel, Inc., 825 

F.2d 1475, (11th Cir. 1987)..........................................3 

Forsyth County v. Nationalist Movement, 505 

U.S. 123 (1992)..............................................................9 

Griffin v. Burns, 570 F.2d 1065 (1st Cir. 1978)............8,9 

Kirby v. State, 765 So. 2d 723 (Fla. Dist. Ct. App. 
1999)................................................................................3 

Lindsey v. Washington, 301 U.S. 397 (1937)...................4 

McPherson v. Blacker, 146 U.S. 1 (1892)........................7 

New York v. United States, 505 U.S. 144 (1992).............4 

Printz v. United States, 521 U.S. 898 (1997)...................4 

Saunders v. Shaw, 244 U.S. 317 (1917) ...........................3 

Williams v. Rhodes, 393 U.S. 23 (1968)...........................2 

iii 
TABLE OF AUTHORITIES—Continued 
Page(s) 

CONSTITUTION AND STATUTES 
U.S. CONST. art. II, § 1.....................................................1,7 

3 U.S.C. § 5 ................................................................passim 

3 U.S.C. §§ 1-15 ..................................................................2 

42 U.S.C. § 1983................................................................12 

OTHER AUTHORITIES 

18 CONG. REC. 47 (1886) ...................................................6 

REPLY BRIEF FOR PETITIONER 

The brief in opposition filed by the Florida Demo- 
cratic Party (the “FDP”) is long on rhetoric, but it con- 
tains no effective response to petitioner’s compelling 
showing that certiorari is warranted in this case. 

I. This Court’s Immediate Review Of The Fed- 
eral Questions Squarely Presented In This 
Case Is Necessary And Appropriate 

The FDP cannot and does not dispute that the ex- 
ceedingly important nature of this case provides a pow- 
erful justification for review by this Court. Opp. 3. In- 
deed, even the courts below emphasized the unique im- 
portance and significance of this proceeding, character- 
izing the case as one of “great public importance requir- 
ing immediate resolution” and “extraordinary impor- 
tance.” Pet. App. 2a, 37a. Nonetheless, the FDP asserts 
(Opp. 2-3, 14-15) that principles of federalism and pub- 
lic policy militate against review. The FDP’s assertions 
are without merit. 

The FDP’s repeated reliance on principles of “feder- 
alism” is particularly misplaced. This Court has repeat- 
edly recognized the powerful federal interest in the se- 
lection of presidential electors. In Anderson v. Cele- 
brezze, 460 U.S. 780, 794-95 (1983), for example, the 
Court held that “in the context of a Presidential election, 
state-imposed restrictions implicate a uniquely important 
national interest.” Thus, the federal Constitution and 
congressional enactments make clear that state laws re- 
garding the appointment of presidential electors are a 
matter of federal concern. See, e.g., U.S. CONST. art. II, 
§ 1, cl. 2; 3 U.S.C. § 5. These provisions directly refute 
the FDP’s erroneous assertion that petitioner is “at- 
tempt[ing] to federalize a state law dispute.” Opp. 15. 
Indeed, the Constitution and federal statutes have al- 
ready “federalized” numerous matters relating to the ap- 
pointment of presidential electors, including those at is- 

2 

sue here. See, e.g., 3 U.S.C. §§ 1-15; Anderson, 460 
U.S. 780 (1983); Buckley v. Valeo, 424 U.S. 1, 14 n.16 
(1976) (“Th[is] Court has also recognized broad con- 
gressional power to legislate in connection with the elec- 
tions of the President and Vice President.”); Williams v. 
Rhodes, 393 U.S. 23, 29 (1968); Burroughs v. United 
States, 290 U.S. 534, 544-48 (1934); see id. at 547 (“The 
power of Congress to protect the election of President 
and Vice President from corruption being clear, the 
choice of means to that end presents a question primarily 
addressed to the judgment of Congress.”); see also Ex 
parte Yarbrough, 110 U.S. 651 (1884). 

Title 3, § 5 of the United States Code plainly recog- 
nizes a federal interest in the manner in which States re- 
solve “controvers[ies] or contest[s] concerning the ap- 
pointment of” presidential electors. This statute requires 
States to resolve any disputes over the appointment of 
electors by exclusive reference to state laws “enacted 
prior to” election day. 3 U.S.C. § 5. The decision of the 
Supreme Court of Florida violates this federal mandate 
because it attempts to promulgate a new rule of law to 
govern the present controversy over the appointment of 
Florida’s electors. As a result, and pursuant to federal 
law, the decision below is a nullity with respect to the 
November 7, 2000, presidential election. No principle 
of federalism or comity precludes this Court from grant- 
ing certiorari in order to enforce that federal statutory 
mandate in this case.1 

1 The FDP errs in suggesting (Opp. 3 n.1) that petitioner’s fed- 
eral claims were not properly preserved below. The appendix to 
the petition reproduces the relevant excerpts from petitioner’s brief 
below (Pet. App. 62a-64a), in which petitioner clearly and ex- 
pressly raised the federal questions at issue here. See also Pet. 9. 
The FDP’s suggestion that petitioner was obligated to raise these 
claims in the trial court is mistaken. Under Florida law, petitioner 
was entitled to defend the judgment on any ground supported in 

[Footnote continued on next page] 

3 

Thus, the FDP is simply wrong in suggesting (Opp. 

2) that the States possess “plenary and exclusive power” 
over all aspects of the selection of presidential electors. 
Indeed, this Court rejected that very argument in Wil- 
liams v. Rhodes: “The State also contends that it has ab- 
solute power to put any burdens it pleases on the selec- 
tion of electors because of the First Section of the Sec- 
ond Article of the Constitution .. . . But the Constitu- 
tion is filled with provisions that grant Congress or the 
States specific power to legislate in certain areas; these 
granted powers are always subject to the limitation that 
they may not be exercised in a way that violates other 
specific provisions of the Constitution.” 393 U.S.at 28- 
29. The FDP’s attempt to immunize the decision below 
from review is baseless. 

Equally without merit is the FDP’s suggestion (Opp. 
15 & n.4) that this Court’s enforcement of 3 U.S.C. § 5 
in this case would violate the Tenth Amendment. In- 
deed, the very cases relied upon by the FDP expressly 
reject the argument advanced by the FDP in its brief, 
and instead reaffirm the self-evident proposition that the 
Tenth Amendment does not limit the power of federal 
courts to compel state and local officials to comply with 

[Footnote continued from previous page] 

the record. 

See Firestone v. Firestone, 263 So. 2d 223, 225 (Fla. 

1972) (where district court holding was based on erroneous find- 
ings, “the judgment may yet be affirmed where appellate review 
discloses other theories to support it”); Kirby v. State, 765 So. 2d 
723, 725 n.3 (Fla. Dist. Ct. App. 1999) (“As appellee, it is open to 
the state to argue for affirmance on any ground the record will 
support.”). Moreover, because the violation of federal law at issue 
here resulted from the decision of the state supreme court, peti- 
tioner had no obligation to raise that federal law claim in an antic i- 
patory manner in the trial court. Saunders v. Shaw, 244 U.S. 317, 
320 (1917); Brinkerhoff-Faris Trust & Sav. Co. v. Hill, 281 U.S. 
673, 677-78 (1930). 

4 

federal law. Printz v. United States, 521 U.S. 898, 931 

n.16 (1997); New York v. United States, 505 U.S. 144, 
179 (1992) (“the power of federal courts to enforce fed- 
eral law thus presupposes some authority to order state 
officials to comply”). 

II. Review Is Warranted In This Case Because 
The Florida Supreme Court Disregarded 
Federal Law As Enunciated In The Due 
Process Clause And 3 U.S.C. § 5 

Contrary to the FDP’s assertions (Opp. 2, 15, 17- 
18), this case involves much more than a “state law dis- 
pute,” and instead involves substantial violations of due 
process and 3 U.S.C. § 5. The FDP’s argument rests on 
the baseless assumption that this Court is absolutely pre- 
cluded from applying federal law standards to weigh the 
validity of state court decisions purporting to apply state 
law. 

The federal courts are frequently required to exam- 
ine state law in determining whether a federal statutory 
or constitutional provision has been violated, and in such 
cases the federal courts are not bound by the state 
courts’ characterizations of the federal issue. For exam- 
ple, in applying the Ex Post Facto Clause, this Court has 
held that the question whether state law has changed in a 
manner that impermissibly increases the penalties for 
past conduct is a question of federal, not state, law, even 
though resolution of that question requires a compara- 
tive analysis of state law. Lindsey v. Washington, 301 
U.S. 397, 400 (1937) (“[W]hether the [state-law] stan- 
dards of punishment set up before and after the commis- 
sion of an offense differ, and whether the later standard 
is more onerous than the earlier within the meaning of 
the constitutional prohibition, are federal questions 
which this Court will determine for itself.”). The ques- 
tion whether a State is attempting to resolve controve r- 
sies over the appointment of electors by reference to 
“laws enacted prior to the day fixed for the appoint- 

5 

ment,” or is instead attempting to impose new rules of 
law retroactively in violation of 3 U.S.C. § 5, is also ul- 
timately a question of federal law. 

The FDP appears to contend (Opp. 17) that because 
the state supreme court’s decision discusses Florida laws 
that existed prior to election day, the court’s decision 
could not have violated 3 U.S.C. § 5. That contention is 
meritless. Nothing in Florida law prior to November 7 
revealed that the seven-day period for certification of 
election results was in reality a 19-day period, or that the 
Secretary of State’s broad power to enforce the statutory 
deadline and reject untimely election returns was instead 
almost nonexistent. Whatever the merit of the Florida 
Supreme Court’s interpretation as a matter of state law, 
it is clear that for purposes of federal law the decision 
below announces a new and previously nonexistent legal 
standard applicable to disputes over the appointment of 
presidential electors.2 

Even the FDP does not dispute that a change in the 
law took place. It simply claims that the Florida Su- 
preme Court’s decision does not “‘change the rules’ in 
any way that implicates federal law.” Opp. 17 (empha- 
sis added). Under 3 U.S.C. § 5, however, any post- 
election change in the rules governing the appointment 
of presidential electors implicates—and violates— 
federal law. 

The FDP also errs in contending that so long as the 
retroactive change in the law was judicially, as opposed 

2 The FDP asserts that the 5:00 p.m., November 14 deadline was 
“set by the Secretary of State.” Opp. 9. That deadline, however, 
was established by the Florida Legislature in §§ 102.111 and 
102.112 of the Florida Statutes. The only deadline “set” by a body 
other than the legislature in this matter is the arbitrary 5:00 p.m., 
November 26 deadline that the Florida Supreme Court chose to es- 
tablish in its decision below. 

6 

to legislatively, imposed, 3 U.S.C. § 5 is satisfied. See 
Opp. 16. The FDP argues in effect that the Florida Leg- 
islature granted to the state courts the authority to de- 
termine the proper way in which to resolve controversies 
concerning the appointment of Florida’s presidential 
electors. Under the FDP’s theory, no violation of 3 
U.S.C. § 5 would occur even if the judicial tribunal de- 
viates from the law as it was established prior to the 
election, so long as the legislature had granted the courts 
jurisdiction to resolve such controversies. This argu- 
ment is without merit. To begin with, such an interpre- 
tation of 3 U.S.C. § 5 would render it a virtual nullity. If 
state legislatures could simply convey authority to a 
chosen tribunal to create new rules to govern disputes 
over the appointment of electors, States could easily 
avoid the limitations placed on them by 3 U.S.C. § 5. 

Such a self-defeating construction is also at odds 
with its legislative history. As Representative Cooper 
explained in the congressional debate on this statute, 
“these contests should be decided under and by virtue of 
laws made prior to the exigency under which they 
arose.” 18 CONG. REC. 47 (1886) (remarks of Rep. 
Cooper). The clear purpose of 3 U.S.C. § 5 is to prevent 
States from manipulating their laws after the initial elec- 
tion results are known, regardless of which branch of 
government is responsible for that change. Indeed, by 
requiring that the rules governing election disputes be 
established by “enact[ment]” prior to the election, Con- 
gress made clear that state legislatures, not the courts, 
were to establish these rules of law. That approach is 
entirely in keeping with Congress’s desire to avoid ret- 
roactive changes that could affect the results of elec- 
tions. To interpret 3 U.S.C. § 5 in the contrary manner 
suggested by the FDP would render its protections es- 
sentially meaningless. 

7 

III. Review Is Warranted Because The Supreme 
Court of Florida’s Decision Is In Contraven- 
tion of Article II Of The Constitution 

As discussed in the petition, Article II of the Consti- 
tution reserves to the state legislatures, not the state 
courts, the authority to determine the manner in which 
to appoint presidential electors. See U.S. CONST. art. II, 
§ 1, cl. 2. The FDP asserts that because this provision 
delegates authority to the States, disputes over the ap- 
pointment of electors must rest exclusively on state law, 
and thus are not subject to federal court review. See 
Opp. 18. While it is true that the appointment of presi- 
dential electors in each State will turn on the laws of the 
individual States, the suggestion that federal courts have 
no role in this area is demonstrably incorrect. Where a 
State’s judiciary intrudes upon this constitutional grant 
of authority to the State legislature by eviscerating a 
state statutory rule applicable to electoral disputes, fed- 
eral court review is plainly appropriate. See McPherson 

v. Blacker, 146 U.S. 1, 25-26 (1892) (“the words ‘in 
such manner as the Legislature thereof may direct’ . . . 
operat[e] as a limitation upon the State in respect of any 
attempt to circumscribe the legislative power”) (empha- 
sis added).3 

3 For all the reasons set forth in petitioner’s reply brief in case 
number 00-837, the FDP’s arguments regarding petitioner’s fed- 
eral constitutional claims under the Equal Protection Clause, the 
Due Process Clause, and the First Amendment are equally without 
merit, and this Court’s review of those claims is warranted. 

8 

CONCLUSION 

As this Court recognized in Burroughs v. United 
States, 290 U.S. 534, 545 (1934), “[t]he President is 
vested with the executive power of the nation. The im- 
portance of his election and the vital character of its re- 
lationship to and effect upon the we lfare and safety of 
the whole people cannot be too strongly stated.” 

For all the reasons set forth above and in the peti- 
tion, 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 24, 2000