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 AMICUS CURIAE OF THE 
AMERICAN CIVIL LIBERTIES UNION 
IN SUPPORT OF RESPONDENTS 
_____________________________________ 

James K. Green 
Steven R. Shapiro 
Randall Marshall 

(Counsel of Record) 

American Civil Liberties Union 
American Civil Liberties Union 

of Florida Foundation 

Foundation 

3000 Biscayne Boulevard 

125 Broad Street 

Suite 215 

New York, N.Y. 10004 

Miami, FL 33137-4129 

(212) 549-2500 

(305) 576-2337 

Laughlin McDonald 
Bryan Sells 
American Civil Liberties Union 

Foundation 
2725 Harris Tower 
233 Peachtree Street 
Atlanta, GA 30303 
(404) 523-2721 
Counsel for Amicus Curiae 

TABLE OF CONTENTS 
Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

Interest of Amicus 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Statement of t e Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

Summary of Argument 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

I. The decision below interpreting Florida s election law 
does not improperly usurp the power of the legislature 
to determine the manner in which the state selects its 
presidential electors 
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 

II. The decision below did not create the sort of new rule 
that cannot be imposed once the election is over 
. . . . . . . . . . . . . . . . . . . . . . . . 12 

III. Courts have broad equitable powers in resolving 
election disputes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 

A. The right to vote in a fair and reliable election 
and to have one's vote counted are constitutionally 
protected. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 

B. A court of equity has the power and duty to grant 
relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

Appendix: 

Emery v. Hunt, CIV 00-3008 (D.S.D. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a 

Alden v. Board of Commissioners of Rosebud County, Montana, 

CV 99-148-BLG-DWM (D.Mont. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8a 

ii 

TABLE OF AUTHORITIES 
Cases: 
Alabama v. United States, 304 F.2d 583 (5th Cir. 1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 

Alden v. Board of Commissioners of Rosebud County, Montana, 

CV 99-148-BLG-DWM (D.Mont. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19, 20 

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

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 
Bailey v. United States, 516 U.S. 137 (1995) 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 

Bell v. Southwell, 376 F.2d 659 (5th Cir. 1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 

Boardman v. Esteva, 323 So.2d 259 (Fla. 1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 

California Democratic Party v. Jones, 120 S. Ct. 2402 (2000) 

. . . . . . . . . . . . . . . . . . . . . . . . . . 17 

Clark v. Smith, [38 U.S. 195] 13 Pet. 195 (1839) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 

Connor v. Finch, 431 U.S. 407 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 

Cort v. Ash, 422 U.S. 66 (1975) 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 
Cousins v. Wigoda, 419 U.S. 477 (1975) 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 

Cox v. New Hampshire, 312 U.S. 569 (1941) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 

Democratic Party v. LaFollette, 450 U.S. 107 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 

Emery v. Hunt, CIV 00-3008 (D.S.D. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18, 20 

Ex parte Siebold, 100 U.S. 371 (1880) 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 

Hadnott v. Amos, 394 U.S. 358 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 

Hamer v. Campbell, 358 F.2d 215 (5th Cir. 1966) 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 
Harper v. Dep't of Taxation, 509 U.S. 86 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 

In Re: The Matter of the Protest of Election Returns and Absentee Ballots 
in the November 4, 1997 Election for the City of Miami, Florida, 

iii 

707 So.2d 1170 (Fla. 3d D.C.A. 1998), rev. den'd 725 So.2d 1108 (Fla. 1998) 
. . . . . . . 16 

In the Matter of the Certification of a Question of Law from the 

United States District Court, 2000 SD 97 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 

Landgraf v. USI Film Products, 511 U.S. 244 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 
McPherson v. Blacker, 146 U.S. 1 (1892) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 

Mitchell v. De Mario Jewelry, 361 U.S. 288 (1960) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 

Patterson v. McLean Credit Union, 491 U.S. 164 (1989) 

. . . . . . . . . . . . . . . . . . . . . . . .13, 14, 15 

Plaut v. Spendthrift Farms, 514 U.S. 211 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 

Reynolds v. Sims, 377 U.S. 533 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 17, 19 

Rivers v. Roadway Express, Inc., 511 U.S. 298 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 13 

Smith v. Allwright, 321 U.S. 649 (1944) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 

Terry v. Adams, 345 U.S. 461 (1953) 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 

United States v. Beaty, 288 F.2d 653 (6th Cir. 1961) 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 

United States v. Classic, 313 U.S. 299 (1941) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 

United States v. Duke, 332 F.2d 759 (5th Cir. 1964) 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 
United States v. Saylor, 322 U.S. 385 (1944) 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 

United States v. Wood, 295 F.2d 772 (5th Cir. 1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 

Webster v. Doe, 486 U.S. 592 (1988) 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 
White v. Weiser, 412 U.S. 783 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 

Williams v. Rhodes, 393 U.S. 23 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10 

Yick Wo v. Hopkins, 118 U.S. 356 (1886) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 

iv 

Constitutional Provision: 
Article II, ß 1, cl. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

Statutes and Rules: 
3 U.S.C. ß 1 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
3 U.S.C. ß 5 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

42 U.S.C. ß 1981 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

42 U.S.C. ß 1973 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

Civil Rights Act of 1991 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

Fla. Stat. ß 102.111 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

Fla. Stat. ß 102.112 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 4, 14, 15 

Fla. Stat. ß 102.166 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

S.D.C.L. ß 12-6-56. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

Supreme Court Rule 37.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

Supreme Court Rule 37.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

Other: 
M. Farrand, The Records of the Federal Constitutional Convention 
(New Haven: rev. ed. 1937) 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 
Monaghan, "First Amendment 'Due Process,'" 83 Harv.L.Rev. 518 (1970) . . . . . . . . . . . . . . . . 

v 

INTEREST OF AMICUS1 
T e American Civil Liberties Union (ACLU) is a nationwide, nonprofit, nonpartisan 
organization with nearly 300,000 members dedicated to the principles of liberty and equality 
embodied in the Constitution and our nation s civil rights laws. As a nonpartisan organization, the 
ACLU has never in its eighty year 
istory taken a partisan position on any electoral contest and 

takes no such position on this presidential election. 

The ACLU has, however, frequently defended 

the right to full and fair participation in the electoral process because we recognize, as this Court 
has recognized, that t e rig t to vote is  preservative of all rights,  Yick Wo v. Hopkins, 118 U.S. 
356, 370 (1886). Indeed, as this Court has stated,  [t] e rig t to vote freely for the candidate of 
one s choice is of the essence of a democratic society, and any restrictions on that right strike at the 
heart of representative government.  Reynolds v.. Sims, 377 U.S. 533, 555 (1964). 

The fact that both sides in this dispute claim to be acting in furtherance of the right to vote 
and in support of fair electoral procedures is hardly unusual. But it is equally routine in our system 
of government for such disputes to be resolved through the judicial process. Because this case calls 
into question the propriety of that traditional judicial function, it raises issues of profound 
importance. In our view, the resolution of those issues is likely to 
ave an enduring impact on the 

electoral process even beyond the obviously enormous stakes of the current presidential contest. 
In particular, we are concerned that the theory of judicial review put forth by petitioner will unduly 
impair the ability of courts, both state and federal, to use their equitable powers in voting rights 

1Letters of consent to the filing of this brief have been lodged with the Clerk of the Court 
pursuant to Rule 37.3. Pursuant to Rule 37.6, counsel for amicus states that no counsel for a 
party authored this brief in whole or in part and no person, other than amici, its members , or its 
counsel made a monetary contribution to the preparation or submission of this brief. 

1 

cases to craft effective remedies designed to preserve both the right to vote and the right to have 
one s vote counted. For that reason, the ACLU respectfully submits this amicus brief. 

STATEMENT OF THE CASE 
By this point, the facts of this case are well known to virtually everyone in the country and 
need not be repeated 
ere at great length. On Tuesday, November 21st, the Florida Supreme Court 

ruled in a unanimous opinion that Florida s Secretary of State 

ad erred, as a matter of state law, 

in categorically refusing to accept the results of any manual recounts submitted to 
er after the 

November 14th deadline that she 
ad previously announced for the submission of all final vote 

tallies. Palm Beach County Canvassing Board v. Harris, Pet. App. 1a-38a. 

The court noted in its opinion that Florida law created a conflicting set of statutory mandates. 
On the one 
and, Fla. Stat. § 102.111 provides that any county returns that are not received by the 

Department of State by 5 p.m. on the seventh day following either a state or federal election  shall 
be ignored. 2 On the other hand, Fla. Stat. § 102.112 also addresses the question of what to do if 

2 Subsection 1 of the statute reads in its entirety, as follows: 
(1) Immediately after certification of any election by the county canvassing board, the 
results shall be forwarded to the Department of State concerning the election of any 
federal or state officer. The Governor, the Secretary of State, and the Director of the 
Division of Elections shall be the Elections Canvassing Commission. The Elections 
Canvassing Commission shall, as soon as the official results are compiled from all 
counties, certify the results of the election and determine and declare who has been 
elected for each office. In the event that any member of the Elections Canvassing 
Commission is unavailable to certify the returns of any election, such member shall be 
replaced by a substitute member of the Cabinet as determined by the Director of the 
Division of Elections. If the County returns are not received by the Department of State 
by 5 p.m. of the seventh day following an election, all missing counties shall be ignored 
and results shown by the returns on file shall be certified. 

2 

county returns are not received by the Department of State by 5 p.m. on the seventh day after the 
election but, in contrast to the mandatory language of § 102.111, states that  such returns may be 
ignored and the results on file at that time may be certified by t edepartment.  (Emp asis added.) 
The permissive nature of this sanction is underscored by the following subsection of § 102.112, 
which directs the Department of State to fine each county canvassing board member $200  for each 
day such returns are late, the fine to be paid only from the board member s personal funds. 3 As 
the court below noted, that clock would never tick if late filings were subject to automatic rejection 
under § 102.111.. Pet. App. 25a. 

Adding to the confusion, Florida law provides that any candidate may submit a written 
request to the county canvassing board for a manual recount at any time  prior to the time t e 
canvassing board certifies the results for the office being protested . . . .  Fla. Stat. 102.166. 

Upon 

receiving such a request, a county canvassing board  may  authorize a sample recount by hand. The 
sample must include at least three precincts and one percent of the total votes cast for the candidate 
requesting the recount. If the result of the sample recount  indicates an error in the vote tabulation 
which could affect the outcome of the election,  Fla. Stat. § 102.166(4)(b), the canvassing board 

3 Section 102.112 provides, in its relevant subsections, as follows: 
(1) The county canvassing board or a majority thereof shall file the county returns for the 
election of a federal or state officer with the Department of State immediately after the 
certification of the election results. Returns must be filed by 5 p.m. on the 7th day 
following the first primary and general election and by 3 p.m. on the 3rd day following 
the second primary. If the returns are not received by the department by the time 
specified, such returns may be ignored and the results on file at that time may be certified 
by the department. 

(2) The department shall fine each board member $200 for each day such returns are late, 
the fine to be paid only from the board member s personal funds . . . 

3 

is required to address the error in any one of three ways, including a full manual recount, Fla. Stat. 
§ 102.166((5)(c). Section 102.166 does not, on its face, indicate when the manual recount must be 
finished. It is fair to assume, however, that the Legislature understood that manual recounts take 
time, as the facts of this case undeniably demonstrate. 

Faced wit 
this tangled web of conflicting laws, t 

e Florida Supreme Court applied a series 

of well-established rules of statutory construction  in an effort to determine legislative intent.  
Id. 

at 24a. First, it held that a more specific statute takes precedence over a more general one. Id. 

In 

this case, the court concluded, that meant that the inflexible seven day deadline of § 102.111 had 
to give way to the more flexible procedures of § 102.112, which authorize the Department of State 
to fine county canvassing board members for filing late returns rather than rejecting the late returns 
themselves. Second, the court noted that a later statute generally takes precedence over an earlier 
one. Id. Here, § 102.111 was enacted in 1951 and § 102.112 was enacted in 1989. Third, the court 
ruled that enforcing the inflexible seven day deadline of § 102.111 would render it impossible ever 
to impose t e daily fine for late returns that § 102.112 expressly contemplates, in violation of the 
interpretive canon that every provision of a statute must be assumed to 
ave meaning and be given 

effect. Id. at 25a. Fourth, t e court observed that strict adherence to the seven day deadline of § 
102.111 would, in many instances, make it impossible to complete t e manual recount that § 
102.166 explicitly authorizes, in violation of the rule that related statutory provisions should be read 
harmoniously, whenever possible. Id. at 25a-26a. Finally, the court reiterated its longstanding view 
that election laws should be  liberally construed in favor of the citizens  rig t to vote,  given 
Florida s deep constitutional commitment to protecting the right of suffrage. Id. at 30a. 

Because each of these traditional rules of statutory construction pointed in the same 

4 

direction, the court determined that it could best effectuate the legislative intent expressed through 
t ese varied and apparently inconsistent provisions by extending t e deadline for submitting t e 
results of manual recounts until 5 p.m. on Sunday, November 26th.4 Id. at 38a. In so doing, the 
court concluded, it would simultaneously respect the Legislature s recognition that a manual recount 
can elp assure an accurate vote tally, guarantee t at the manual recounts will not drag on 
indefinitely, allow adequate time for the post-certification contests that Florida law allows, and 
preserve the state s overriding interest in certifying its presidential electors by the federal deadline 
of December 12th. 

The Florida Supreme Court is, of course, t e ultimate arbiter of Florida state law. 

T e 

question of whether it correctly interpreted what the Legislature intended is therefore not before this 
Court. Instead, whatthis Courtmustnowdecideiswhethert edecisionbelowsofundamentally 
altered the rules of the election after it was held that the decision cannot be sustained as a matter of 
federal law. 

SUMMARY OF ARGUMENT 
As a matter of principle, the ACLU whole eartedly agrees with petitioner s assertion that 
the rules governing an election should be established before an election is held. That principle is 
embodied in basic notions of due process. And, in the case of presidential elections, it is codified 
in the provisions of 3 U.S.C. § 5,, w ich was enacted by Congress in 1887 following the disputed 
election of Rutherford B. Hayes eleven years earlier. But, unlike petitioner, we do not believe that 

4 Within hours of this court-imposed deadline, the Florida Secretary of State declared 
Governor Bush the winner of Florida s presidential election by 537 votes. That certification is 
being contested by Vice President Gore in the Florida state courts. 

5 

the rather standard exercise of statutory interpretation engaged in by the court below can or should 
be characterized in such apocalyptic terms. 

Petitioner s assertion that the Florida Supreme Court usurped the constitutional authority of 
the state legislature to direct the manner in which presidential electors shall be chosen ignores the 
fact that the Florida Legislature exercised that authority in this case by imposing a set of conflicting 
instructions. Presented with that conflict, the Florida Supreme Court did what courts in this country 
do every day: it attempted to reconcile the legislature s conflicting instructions by applying neutral 
canons of statutory construction. Whether one agrees or disagrees with its result, that judicial 
undertaking cannot be regarded as a usurpation of the legislative role without calling into question 
every act of statutory construction. Trying to discern w at the Legislature meant when it crafted 
an ambiguous set of rules for choosing presidential electors is not the same as supplanting the 
Legislature in its constitutionally appointed task. Petitioner s claim that the decision below conflicts 
with the constitutional allocation of power set forth in Art. II, Section 1, Clause 2, is therefore 
without merit. 

Likewise, petitioner s contention that the decision below violates due process, in general, 
or 3 U.S.C. § 5,, in particular, cannot withstand scrutiny. Petitioner repeatedly invokes 3 U.S.C. § 
5 for the proposition that the selection of presidential electors must be based on law  enacted prior 
to  election day. 

As noted above, we do not quarrel with that proposition in the abstract. 

It is not, 
however, what the statute actually provides. Read in its entirety, 3 U.S.C. § 5 addresses the process 
for resolving  any controversy or contest concerning the appointment  of presidential electors. 
Based on the language of the statute, it is the state s dispute resolution process,  by judicial or other 
methods or procedures,  that must be in place before the election is eld, and that must be 

6 

completed six days before the electors will meet to choose the next president. 

Florida s decision 

to commit electoral disputes to the courts for judicial resolution was in place long before t is 
election was held, and it is difficult to see 
ow following that established process in this case can 

lead to a violation of 3 U.S.C. § 5.. 

Petitioner s argument also mischaracterizes the process of judicial interpretation. Whatever 
3 U.S.C. § 5 does or does not require -- and like everyone else, we recognize that we are dealing 
with a statute that as rarely been cited, muc less authoritatively construed -- we readily 
acknowledge that due process places some constraints on the ability of either the legislative or 
judicial branches to apply new substantive rules to an election that 
as already been completed. A 

court that resolves the ambiguity in preexisting rules, 
owever, is engaged in a very different 

enterprise. As this Court has explained,  [a] judicial construction of a statute is an authoritative 
statement of what t e statute meant before as well as after the decision of the case giving rise to t at 
construction.  Rivers v. Roadway Express, Inc., 511 U.S. 298, 312-13 (1994)(footnote omitted). 
The decision below undeniably construed Florida s existing election code but, contrary to 
petitioner s view, that is not the equivalent of creating a new code from whole cloth. 

Finally, it is important to note that Florida is not the only state in the nation with an 
ambiguous election code nor 
as this been the only closely contested election in our nation s history. 

The combination of those two facts frequently places courts in the position of refereeing election 
disputes in an effort to determine the will of the voters. Properly understood, that process is not an 
impediment to fair elections, it is a guarantee of them. Yet, courts cannot be expected to perform 
that role if they are stripped of the tools they 
ave traditionally employed to discern legislative intent 

and then enforce that intent through appropriate remedies. Ot er t an t e glare of t e a presidential 

7 

election, what the Florida Supreme Court did in this case is not that unusual. If that decisionmaking 
process is now called into question, the role of the courts as a guardian of voting rights is likely to 
diminish. 

ARGUMENT 

I. THE DECISION BELOW INTEPRETING FLORIDA S 
ELECTION LAW DOES NOT IMPROPERLY 
USURP THE POWER OF THE LEGISLATURE TO 
DETERMINE THE MANNER IN WHICH THE STATE 
SELECTS ITS PRESIDENTIAL ELECTORS 
Article II of the Constitution undeniably assigns to each state legislature t e power to 
determine the manner in whic 
its presidential electors will be selected.5 It is equally undeniable 

that the Florida Legislature as exercised that constitutionally assigned power by enacting a 
comprehensive election code that includes, among other things, a mechanism for judicial review of 
election protests (before certification of the election results) and election contests (after certification 
of the election results).6 Pursuant to that legislative grant of authority, the Florida Supreme Court 
hasnowdeterminedthat t eprovisionsoft eelectioncodeat issueinthiscaseareneit erclearnor 
internally consistent. This Court is bound by that state court judgment, which involves a pure matter 
of state law. See, e.g., Cox v. New Hampshire, 312 U.S. 569 (1941). By endeavoring to resolve the 

5 Specifically, Article II, Section 1, Clause 2 provides, in full: 
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number 
of Electors, equal to the whole Number of Senators and Representatives to which the 
State may be entitled in the Congress; but no Senator or Representative, or Person 
holding an Office of Trust or Profit under the United States, shall be appointed an 
Elector. 

6 The relevant provisions of the election code are codified in Fla. Stat. §§ 97--106, and 
described in the decision below. 

8 

conflicts in state law, the Florida Supreme Court was not usurping the legislature s role; it was, 
instead, attempting to reconcile the various expressions of legislative intent in a way that respected 
both the will of the Legislature and the will of the voters. It would be an odd conclusion, indeed, 
to hold that the Florida Supreme Court was constitutionally compelled to leave Florida s election 
law in the muddle it found it. We do not believe that the language of Article II, Section 1, Clause 
2 should be read to produce such an awkward result. 

The decision by the framers to allow each state legislature to determine the method of 
selecting its presidential electors was a compromise, like so many other decisions at the Philadelphia 
Convention. But the competing positions 
ad little to do with the respective roles of the legislative 

and judicial branches within a given state. Instead, the focus of the debate, typically enough, was 
on whether the new national government should set uniform standards for the election of its chief 
executive officer and, if so, what those standards should be. Thus, the Convention considered and 
rejected proposals to 
ave the president elected by  the citizens of the United States,  by the 

 people,  by  electors to be chosen by the people of t e several states,  or by  electors appointed 
for that purpose by the legislatures of the states.  McPherson v.. Blacker, 146 U.S. 1, 28 (1892). 

The dispute was described by James Wilson as one that  has greatly divided the House, and 
will also divide people out of doors. It is in truth the most difficult of all on which we 
ave had to 

decide.  2 M. Farrand, The Records of the Federal Constitutional Convention 501 (New Haven: 
rev. ed. 1937). In the end, of course, the Convention chose to give each state latitude to choose its 
electors as it saw fit and, at least in the early days of the Republic, that latitude produced a variety 
of different electoral schemes. See McPherson v. Blacker, 146 U.S. at 29-34. 

Although the power given to the states in this regard as often been described as plenary, 

9 

it is not absolute. As this Court explained in Williams v. Rhodes, 393 U.S. 23, 29 (1968),  the 
Constitution 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 limitations that they may not be 
exercised in a way that violates other specific provisions of the Constitution.  For example, states 
may not choose a scheme for selecting presidential electors that discriminates against t ird party 
candidates, Williams v. Rhodes, supra; Anderson v. Celebrezze, 460 U.S. 780, 795 n.18 (1983), or 
t at attempts to dictate who the parties must seat as delegates to their nominating conventions. 
Democratic Party v. LaFollette, 450 U.S. 107, 126 (1981); Cousins v. Wigoda, 419 U.S. 477, 495 
(1975). 

Were we writing on a clean slate, we would urge this Court to hold that the right of the 
judiciary to decide what its state election laws mean and how they should be applied in particular 
circumstances is another important limitation on the otherwise unfettered power of t e state 
legislature to choose a method for selecting presidential electors. In the classic words of Marbury 

v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803): 
It is emphatically the duty and province of the judicial department to say what the 
law is. Those who apply the rule to particular cases, must of necessity expound and 
interpret t at rule. If two laws conflict wit 
each ot er, t e courts much decide on 

the operation of each. 
However, it is not necessary for the Court to go t at far in t is case because the Florida 
Legislature as already invited the judiciary into the process by authorizing the courts to resolve 
electoral disputes that arise both before and after certification. Surely, there is no reason to believe 
that the Florida Legislature intended the courts to resolve those disputes without first determining 
the meaning of the law that the courts 
ave been asked to apply, including which law controls if two 

or more laws are in conflict. At the very least, it would be wrong to presume such a design on the 

10 

part of t e Legislature without a clear statement of its intent (which would then ave to be tested 
against constitutional norms) to dramatically curtail the traditional prerogatives of a coordinate 
branch of the state government. Cf. Webster v. Doe, 486 U.S. 592, 603 (1988)( where Congress 
intends to preclude judicial review of constitutional claims, its intent to do so must be clear ).7 

Absent such a clear statement, the decision by the Florida Supreme Court to exercise its 
traditional powers of statutory construction pursuant to a specific jurisdictional grant of authority 
by the Florida Legislature to resolve election disputes cannot plausibly be construed as a usurpation 
of the legislative role. Suppose, for example, that the Florida Legislature 
ad enacted two statutes. 

One provided that the counties had to submit their vote tallies to the state within seven days in all 
statewide elections. The other provided that the counties had ten days to submit t eir vote tallies 
to the state in presidential elections. If a challenge was brought to the vote tally submitted in a 
presidential election by a Florida county on the eig t 
day, it is absurd to suggest that the courts 

would be barred from deciding which statute takes precedence, especially if t e court reached that 
result by applying well-established rules of statutory construction. 

That is all that the Florida Supreme Court 
as done in this case. It did so, moreover, in a 

carefully crafted decision t at began and ended its legal discussion wit 
a reference to legislative 

intent as the guiding  polestar.  This Court engages in a similar exercise on a routine basis when 
it fills in the interstices of federal law by deciding, for example, whether Congress intended to create 
an implied right of action, see Cort v. Ash, 422 U.S. 66 (1975), or when it interprets the appropriate 

7 The fact that the current Legislature apparently disagrees with the particular decision of 
the Florida Supreme Court that is now under review is legally irrelevant. Were the rule 
otherwise, a legislative body could always respond to disappointing decisions by retroactively 
stripping the courts of jurisdiction to hear the dispute. See Plaut v. Spendthrift Farms, 514 U.S. 
211 (1995)(legislature may not interfere with final court judgments). 
11 

scope of an ambiguous federal statute. E.g., Bailey v. United States, 516 U.S. 137 (1995) (holding 
that federal statute imposing additional penalties for  use  of a firearm during drug offense requires 
more than evidence of simple possession). 

In short, the Florida Supreme Court did not substitute its judgment for the judgment of the 
Legislature, it did its best to divine what the Legislature intended when it enacted each of t e 
provisions of this complex election code. Nothing in Article II, Section 1, Clause 2 renders that 
undertaking illegitimate. To the contrary, by giving force and effect to the Legislature s intent as 
authoritatively construed by the Florida Supreme Court, the decision below does far more to 
promote the constitutional scheme of selecting presidential electors than to undermine it. 

II. THE DECISION BELOW DID NOT CREATE 
THE SORT OF NEW RULE THAT CANNOT 
BE IMPOSED ONCE THE ELECTION IS OVER 
Petitioner s second argument, as we understand it from the petition for certiorari, proceeds 
as follows. Even if the decision below did not usurp the legislature s constitutionally assigned 
function of choosing the method for selecting presidential electors, the act of statutory interpretation 
engaged in by the Florida Supreme Court nonetheless announced a new rule for manual recounts 
that was then applied to a completed election in violation of 3 U.S.C. § 5 and, perhaps, due process 
as well. 

In support of this claim, petitioner repeatedly 
ighlights a portion of 3 U.S.C. § 5 that refers 

to  laws enacted prior to the day fixed for the appointment of the electors,  which federal law sets 
as Election Day. 

See 3 U.S.C. § 1 (designating Election Day as the  time of appointing electors ). 

Read in its entirety, however, 3 U.S.C. § 5 as less to do with setting the rules for the election than 

12 

with establishing in advance a procedure for resolving election disputes. To begin with, the section 
is entitled:  Determination of controversy as to appointment of electors.  And, while a statute s title 
is not dispositive of its meaning, the text in this case in fact mirrors the title. It provides: 

If any state shall have provided, by laws enacted 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 made at least six days before the time fixed for the meeting 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 ereinafter regulated, so far as the 
ascertainment of the electors appointed by such State is concerned. 

(Emphasis added.) 

As previously described, Florida had in place before Election Day a procedure for resolving 
election controversies that might arise after Election Day. That procedure contemplated exactly 
what took place here -- namely, the filing of election challenges in the appropriate state court with 
an ultimate appeal to the Florida Supreme Court. To the best of our knowledge, that procedure was 
not altered in any way, either in this case or in any of the other myriad challenges t at were filed. 
Indeed, if 3 U.S.C. § 5 has any relevance at all, it appears on its face to foreclose petitioner s claim 
rather than support it since the statute indicates that any election dispute that is resolved by the state 
courts pursuant to pre-existing procedures at least six days prior to the date t at the Electoral 
College is scheduled to meet on December 18th  shall be conclusive.  

More fundamentally, the notion that courts create new rules when they attempt to 
armonize 

existing statutory provisions, as the Florida Supreme Court did in this case, or when courts attempt 
to discern the legislative meaning behind an ambiguous enactment, as the Florida Supreme Court 
also did in t is case, misconstrues t e nature of t e judicial process. T e Court addressed t is issue 

13 

directly in Rivers v. Roadway Express, 511 U.S. 298, when it considered the impact of the Civil 
Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071, on its earlier decision in Patterson v. 
McLean Credit Union, 491 U.S. 164 (1989). 

Relying on t e fact t at t eir lawsuit was filed before 

this Court s decision in Patterson was announced, the plaintiffs in Rivers had argued that the 1991 
Act merely restored the law to what it had been prior to Patterson and thus did not raise any 
retroactivity questions. This Court disagreed. Writing for the majority, Justice Stevens asserted: 
[I]t is not accurate to say t 
at the Court s decision in Patterson  changed  the 

law that previously prevailed in the Sixth Circuit when the case was filed. 
Rather, given the structure of our judicial system, the Patterson opinion 
finally decided what § 1981 had always meant and explained why the Court 
of Appeals had misinterpreted the will of the enacting Congress. 

Id. at 313 n.12 (emphasis in original). It is because a judicial decision authoritatively construing 
an existing statute does not make new law that it is presumed to apply retroactively, Harper v. Dep t 
of Taxation, 509 U.S. 86, 97 (1993). By contrast, a statute enacted by the legislature is presumed 
to apply prospectively precisely because it does make new law, by definition, Landgraf v. USI Film 
Products, 511 U.S. 244 (1994). 

This would undoubtedly be a more difficult case if the Florida Supreme Court had adopted 
a new set of election rules untethered to any existing statutory scheme. Under those circumstances, 
serious questions of First Amendment due process might well arise. 

See generally, Monaghan, 

 First Amendment  Due Process,   83 Harv.L.Rev. 518 (1970). But the Florida Supreme Court was 
plainly not acting in a statutory vacuum when it attempted to make sense of the conflicting state 
laws governing manual recounts and establishing the operative dates for filing certified returns. 
Like this Court s decision in Patterson, the Florida Supreme Court s holding that the more recent 
and more specific provisions of § 102.112 are controlling did not make new law, it merely clarified 

14 

w at the law 
ad been since § 102.112 was enacted in 1989, even if there had been no prior 

occasion to say so. 

The logical extension of petitioner s argument is that courts could never decide issues of first 
impression in t e context of election disputes. If adopted, that rule would be far more novel than 
anything the Florida Supreme Court did in this case. Indeed, the fact that this dispute has apparently 
presented an issue of first impression under Florida law weakens, not strengthens, petitioner s 
unfairness claim. In Patterson, the Court found no cognizable reliance interest despite 
acknowledging that its interpretation of 42 U.S.C. § 1981 was directly at odds with the prior 
holdings of several appellate courts. Those decisions, the Court said, were simply incorrect and 
entitled to no weight. 511 U.S. at 313. 

If, as we believe, the Florida Supreme Court s decision to give precedence to § 102.112 over 
§ 102.111 did not create a new legal standard in violation of either due process or 3 U.S.C. § 5, then 
petitioner is reduced to arguing that the court below erred by imposing its own deadline for the 
filing of an amended certification. It is true that the court s choice of 5 p.m. on Sunday, November 
26th, as the final deadline for the filing of amended certifications cannot be found in any pre- 
existing statute. But the argument that the adoption of a judicially imposed deadline was therefore 
improper as a post hoc rule is unpersuasive for at least two reasons. 

First, the failure to adopt a filing deadline for amended certifications under § 102.112 would 
have jeopardized the ability to carry out the post-certification contests that the Legislature clearly 
contemplated within the time set by federal law for designating the state s presidential electors. The 
November 26th deadline set by the court was t us part and parcel of its effort to reconcile the 
conflicting mandates imposed by the Legislature, and to determine how best to effectuate legislative 

15 

intent under the unique and daunting circumstances of the present controversy. 

Second, the role of the legislature is to determine the rules of the electoral contest. The role 
of the courts is to fashion an appropriate remedy once those rules are violated. Here, t e Florida 
Supreme Court determined that the rules of the electoral contest established by t e Florida 
Legislature permitted manual recounts. Having reached that judgment, it acted well wit in its 
equitable discretion in permitting a window of opportunity to allow those recounts to go forward 
in an effort to achievc a more accurate assessment of the will of the voters. As detailed below, the 
exercise of that equitable discretion is critical to the ability of courts to serve as impartial referees 
in electoral contests around the country and, by performing that function, to preserve t e rig t of 
every citizen to full and fair participation in the electoral process. 

III. COURTS HAVE BROAD EQUITABLE POWERS 
IN RESOLVING ELECTION DISPUTES 
Courts ave traditionally exercised broad equitable powers in resolving election disputes to 
insure that the election process proceeds in a timely and reliable manner, and that voters are not 
disfranchised. The right to vote is fundamental. For that reason the equitable and remedial powers 
of a court are particularly broad in this area of the law. A ruling that the Florida state court lacked 
power in the exercise of its remedial authority to resolve conflicting provisions of state law, or to 
provide for contingencies not expressly anticipated or foreseen by state law, would lead to 
inequitable results, would needlessly disfranchise thousands of state voters, and would be contrary 
to the long established practice of the courts in voting rights cases.8 

8Aside from whether the Florida Supreme Court acted in conformity with 3 U.S.C. § 5,, 
there can be no serious contention that the court abused the exercise of its equitable powers on 
16 

A. The Right to Vote In a Fair and Reliable Election and to 

Have One's Vote Counted Are Constitutionally Protected 
As t e Florida courts ave recognized, "federal and state constitutions guarantee the right 
of t e people to take an active part in t e . . . election process." Boardman v. Esteva, 323 So.2d 
259, 263 (Fla. 1975). See also In Re: The Matter of the Protest of Election Returns and Absentee 
Ballots in the November 4, 1997 Election for the City of Miami, Florida, 707 So.2d 1170, 1173 (Fla. 
3d D.C.A. 1998) ("the right to vote . . . is assured every citizen by the United States Constitution"), 
rev. den'd, 725 So.2d 1108 (Fla. 1998). The right to vote is entitled to special constitutional 
protection because "t e right to exercise the franchise in a free and unimpaired manner is 
preservative of other basic civil rights." Reynolds v. Sims, 377 U.S. at 562. 

The constitutionally protected right to vote is not limited to the simple act of putting a ballot 
in a box. In United States v. Classic, 313 U.S. 299, 315 (1941), the Court held that "included within 
the right to choose, secured by the Constitution, is the right of qualified voters within a state to cast 
their ballots and have them counted." Accord, Reynolds v. Sims, 377 U.S. at 554 ("[i]t 
as been 

repeatedly recognized that all qualified voters have a constitutionally protected right to vote . . . and 
to ave their votes counted") (citations omitted). In order to safeguard the right of voters to 
ave 

t eir votes counted, the Court has held that ballots may not be destroyed or adulterated, United 
States v. Classic, 313 U.S. at 299, diluted by stuffing the ballot box, Ex parte Siebold, 100 U.S. 371 
(1880), United States v. Saylor, 322 U.S. 385 (1944), diluted or debased through use of white 
primaries or white private political clubs, Smith v. Allwright, 321 U.S. 649 (1944), Terry v. Adams, 
345 U.S. 461 (1953), nor diluted through the use of a "blanket" primary, California Democratic 

other grounds. 

17 

Party v. Jones, 120 S.Ct. 2402, 2412 (2000) (the state scheme "adulterate[d]" a political party's 
candidate selection process "by opening it up to persons wholly unaffiliated with the party"). 

It would be a complete anomaly to hold that the protections of the state and federal 
constitutions did not apply to the most important elections conducted in the United States, those for 
the president. The legitimacy of elected office, including the presidency, and indeed the democratic 
system itself, depends upon the reliability of the electoral process. 

B. A Court of Equity Has the Power and Duty to Grant Relief 
As this Court has long noted, "there is inherent in the courts of equity a jurisdiction to . . . 
give effect to the policy of the Legislature." Clark v. Smith [38 U.S. 195], 13 Pet. 195, 203 (1839). 
See also Mitchell v. De Mario Jewelry, 361 U.S. 288, 292 (1960) (noting "the historic power of 
equity to provide complete relief in light of the statutory purposes"). 

Because of t e overriding importance of equal voting rights, the remedial powers of the 
courts are particularly broad in cases involving the exercise of the franchise. The courts 
ave, for 

example, enjoined and set aside the results of elections 
eld in violation of the law, Hamer v. 

Campbell, 358 F.2d 215, 221 (5th Cir. 1966) (emphasizing "the broad equitable powers of the 
District Court to mould relief"), Bell v. Southwell, 376 F.2d 659, 665 (5th Cir. 1967) ("[i]f 
affirmative relief is essential, the Court has the power and should employ it"), ordered new 
elections, Hadnott v. Amos, 394 U.S. 358, 367 (1969), enjoined prosecutions, United States v. 
Wood, 295 F.2d 772, 785 (5th Cir. 1961), frozen voter qualifications, United States v. Duke, 332 
F.2d 759, 769 (5th Cir. 1964), ordered excluded minorities placed on the registration rolls, Alabama 

v. United States, 304 F.2d 583, 591 (5th Cir. 1961) ("[t]he aim of equity is to adopt judicial power 
to the needs of the situation"), and issued injunctions against economic coercion and intimidation 

18 

of voters, United States v. Beaty, 288 F.2d 653, 657 (6th Cir. 1961). 

Courts ave also routinely exercised their equitable powers in fashioning remedies for voting 
rights violations in the absence of any, let alone conflicting, state law remedy provisions. In Emery 

v. Hunt, CIV 00-3008 (D.S.D. 2000), for example, plaintiffs challenged a 1996 redistricting plan 
for the South Dakota house of representatives on the grounds that it violated Section 2 of the Voting 
Rights Act, 42 U.S.C. § 1973, and t at it 
ad been enacted in violation of the state constitution 

which prohibited interstitial redistricting. The federal court certified the state law issue to the state 
supreme court which ruled on July 26, 2000--several weeks after the June primary--that the 1996 
plan ad been enacted in violation of the state constitution and that the only lawful plan under state 
law was the plan first enacted after the census in 1991. See In the Matter of the Certification of a 
Question of Law rom the United States District Court, 2000 SD 97. There was, however, no state 
law providing for a remedy where a primary 
ad been 

eld under a plan later found by a court to 
be unconstitutional.9 T e absence of a state law remedy is 
ardly surprising since the legislature 

could not 
ave reasonably foreseen that it would adopt a plan that violated the state constitution. 

The district court, after considering various proposals submitted by the parties, and despite the 
absence of state law providing for such a remedy, ordered that a new primary election be 
eld in 

September prior to the November general election. See Emery v. Hunt, Order of August 10, 2000, 
a copy of which is included in the appendix to the brief at 1a. Any contention that the district court 
in Emery lacked inherent power to fashion a remedy under the particular facts of that case would 
be wholly inconsistent with this Court's repeated admonitions that courts must insure that elections 

9State law provided a method for filling vacancies following a primary election only where 
the vacancy occurred "by reason of death or withdrawal." SDCL 12-6-56. 
19 

go forward in a "timely fashion" and that voters have a fair opportunity to elect a governing body 
that properly represents them. White v. Weiser, 412 U.S. 783, 794-95 (1973), quoting Reynolds v. 
Sims, 377 U.S. at 586; Connor v. Finch, 431 U.S. 407, 426 (1977). State courts are no less 
obligated to fashion remedies, as the Florida court did here, that provide voters the fair opportunity 
to choose their elected officials. 

Alden v. Board of Commissioners of Rosebud County, Montana, CV 99-148-BLG-DWM 
(D.Mont. 2000), is another example of a court's filling in the spaces or gaps in state law to remedy 
a violation of the law in order to allow elections to proceed in a timely manner. Shortly before the 
scheduled 2000 primary for the Rosebud County Commission, t e district court found that the 
existing at-large system of elections violated Section 2 of the Voting Rights Act. Since there was 
less than 75 days between the date of the court order and the scheduled primary, the court concluded 
that a primary under a new plan could not be held in conformity with state law. Accordingly, it 
enjoined the primary and directed that a special general election be 
eld in November 2000. 

Political parties were allowed to nominate candidates and independents were allowed to file 
petitions for a place on the ballot. Alden v. Board of Commissioners of Rosebud County, Montana, 
Order of May 10, 2000, a copy of which is included in the appendix at 8a. As in Emery, the district 
court in Alden acted in light of clearly established equitable principles in fashioning a remedy to 
allow the election to proceed in an orderly manner so that voters would have a fair opportunity to 
elect officials that properly represented them. 

The Florida Supreme Court, in resolving the conflicts in state statutory law and setting a 
deadline for acceptance of amended certifications by t e Secretary of State and t e Elections 
Canvassing Commission, was acting in light of well recognized principles of equity. To conclude 

20 

that the court acted beyond its powers would result in the disfranchisement of voters whose votes 
were not counted by the voting machines and render the court impotent in remedying election 
disputes. Nothing in federal or state law should countenance such an implausible result or be 
deemed to preclude the judicial branch from crafting appropriate, narrowly tailored remedies to 
safeguard the right to vote, even (and perhaps most especially) in a presidential contest. 

CONCLUSION 
For the foregoing reasons, amicus curiae respectfully submits that the decision below should 
be affirmed. 

Respectfully submitted, 

_____________________________ 
Steven R. Shapiro 
(Counsel of Record) 
American Civil Liberties Union 

Foundation 
125 Broad Street 
New York, N.Y. 10025 
(212) 549-2500 
Laughlin McDonald 
Bryan Sells 

21 

American Civil Liberties Union 

Foundation 
2725 Harris Tower 
233 Peachtree Street 
Atlanta, GA 30303 
(404) 523-2721 
James K. Green 
Randall Marshall 
American Civil Liberties Union 
of Florida Foundation 
3000 Biscayne Boulevard 
Suite 215 
Miami, FL 33137-4129 
(305) 576-2337 
Counsel for Amicus Curiae 

22