No. 00-836 

IN THE 
Supreme Court of the 
United States 

GEORGE W. BUSH 

Petitioner, 

v. 
PALM BEACH COUNTY CANVASSING BOARD, ET. AL., 

Respondents. 
_______________ 

ON WRIT OF CERTIORARI 
TO THE SUPREME COURT OF FLORIDA 

BRIEF OF THE FLORIDA SENATE AND HOUSE OF 
REPRESENTATIVES AS AMICI CURIAE IN SUPPORT 
OF NEITHER PARTY 

ROGER J. MAGNUSON 
CHARLES FRIED 

Dorsey & Whitney LLP 
Counsel of Record 

Pillsbury Center South 
1545 Massachusetts Ave. 

220 South Sixth St. 

Cambridge, MA 02138 

Minneapolis, MN 55402- 

Telephone: (617) 495-4636 

1498 Fax: (617) 496-4865 
Telephone: (612) 340-2738 
Fax: (612) 340-8856 
EINER ELHAUGE 

Counsel for Amicus Curiae 
1575 Massachusetts Ave. 

the Florida Senate 
Cambridge, MA 02138 

November 27, 2000 
Telephone: (617) 496-0860 
Fax: (617) 496-0861 

Counsel for Amicus Curiae 
the Florida House of 
Representatives 

QUESTIONS PRESENTED 

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 controversies 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 Alaws 
enacted prior to@ election day. 

2. Whether the state court’s decision, which cannot be 
reconciled with state statutes enacted before the election 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. What would be the consequences of this Court’s finding 
that the decision of the Supreme Court of Florida does not 
comply with 3 U.S.C. Sec. 5? 

INTEREST OF THE AMICI CURIAE 1 

The Constitution and laws of the United States assign 
preeminent responsibilities to the State Legislatures in the 
process of appointing Presidential Electors. As we explain in 
this brief, the disposition of this case, especially in light of the 
additional question raised by the Court, will almost certainly 
have a substantial impact on how the Florida Legislature will2 
carry out those responsibilities in the present most unusual 
circumstances. Indeed, the Florida Legislature’s interest is so 
great that it would have sought to intervene in the litigation 
below but for the circumstances that, until 14 days after the 
election, or November 21, 2000, the Florida Legislature was not 
lawfully organized and the constitutional offices of Speaker of 
the House, President of the Senate, and Clerk of the respective 
chambers were thus vacant. FLA. CONSTITUTION ART. III, §2, 
§3a. 

SUMMARY OF ARGUMENT 

The Constitution grants plenary authority to the State 
Legislatures to appoint their Presidential Electors in any manner 
they direct. 3 U.S.C. §5 provides that, if a State’s electoral 
process is timely and conforms to pre-existing rules, Congress 
will regard the results of that process as conclusive of which 
Electors were appointed in the manner directed by the State 
Legislature. When the electoral process has failed to make a 
choice that is timely and conforms to pre-existing rules, then 
under 3 U.S.C. §2 the State Legislature must appoint Electors to 
assure that the State’s Electors are counted by Congress when 
exercising its counting authority. The Legislature itself, and not 

1 

Pursuant to this Court’s Rule 37.6, amici state that no counsel for any 

party authored this brief in whole or in part, and no person or entity other 
than amici, their members, or their counsel made a monetary contribution 
to the preparation or submission of the brief. The Florida Legislature has 
secured the consent of all parties to the filing of a brief as amicus curiae and 
those consents are being lodged with the Clerk of the Court. 

We will use the term AFlorida Legislature@ to refer to both the Florida 

2 

Senate and the Florida House of Representatives. 

2 

the courts, is the arbiter of when a failure to make such a choice 
has occurred. 

In view of the constitutional and statutory schema, this Court 
should rule that the question whether the state electoral process 
deviated from pre-existing law under 3 U.S.C. §5 is not 
justiciable but is instead a political matter to be decided in the 
first instance by the State Legislature under U.S. CONST. ART. 
II, §1, ¶2 and 3 U.S.C. §2, then by Congress when exercising its 
counting authority under U.S. CONST. Amend. XII and 3 U.S.C. 
§15. 

If the Court finds that the issue is justiciable, it should rule 
that whether the state electoral process has conformed to pre- 
existing rules is a federal question under U.S. CONST. ART. II, 
§1, ¶2 and 3 U.S.C. §5, to be resolved ultimately by this Court 
and not by the highest state court. 

If the Court also concludes that the electoral process at issue 
deviated from pre-existing law, and therefore did not comply 
with 3 U.S.C. §5, then it should order the Florida courts to 
correct those deviations before December 12 in order to assure 
that Florida’s Presidential Electors will be determined by the 
choice of the voters under those pre-existing rules. If those 
deviations cannot be corrected by December 12, then it will be 
necessary for the Florida Legislature to exercise its authority to 
appoint Electors to assure Florida is represented in the Electoral 
College. 

ARGUMENT 

1. The State Legislature Has Plenary Authority To 
Appoint Electors And, When An Election Fails To Make A 
Timely Choice Pursuant To Pre-existing Rules, It Must 
Exercise That Authority To Assure Its Electors Are Counted 
By Congress. 

The Constitution of the United States grants each State 
Legislature the plenary power to appoint that State’s Presidential 
Electors. See U.S. CONST. ART. II, §1, ¶2 ("each State shall 

3 

appoint, in such manner as the Legislature thereof may direct, a 
number of Electors."). This clause confers Aplenary power to the 
state legislatures in the matter of the appointment of electors.@ 
McPherson v. Blacker, 146 U.S. 1, 35 (1892). A‘The 
appointment of these electors is thus placed absolutely and 
wholly with the legislatures of the several states.’@ Id. at 34 
(quoting favorably Senate Rep. No. 395, 1st Sess. 43d Cong. 
(1874)). 

The Constitution places upon Congress the duty to count the 
votes of the Electors whom the states have appointed. U.S. 
CONST. Amend. XII. Implicit in this duty is the authority to 
resolve disputes about whether the Electors have in fact been 
appointed in the manner directed by the State Legislature. 
Congress has enacted statutes to regulate its counting of electoral 
votes. These statutes have been codified in Title III of the 
United States Code. 

Where, as in Florida, the Legislature has chosen to use an 
election to determine which Electors to appoint, 3 U.S.C. §5 
provides that the results of that election shall be deemed 
conclusive by Congress when it counts electoral votes, provided 
controversies regarding that election are resolved in a manner 
that is both timely (here before December 12, 2000) and in 
conformance with rules and procedures adopted prior to the 
election. Timeliness is crucial because of, among other things, 
the importance of having a President and allowing preparations 
for an orderly transition. Even more crucial is the principle 
embodied in Section 5 that the rules of the election must be set 
before the election and cannot be changed after it becomes clear 
who would benefit from such a change. Otherwise the law 
would encourage post-election manipulations of election law to 
alter the outcome of a Presidential race. 

If a State’s election Ahas failed to make a choice@ that is 
timely and conforms with pre-existing law, then 3 U.S.C. §2 
recognizes that appointment of Electors by the State Legislature 
is proper. In such a case, state legislative appointment would be 
necessary to assure the State will have Presidential Electors that 
will be counted by Congress under Title III. Indeed, the Florida 

4 

Legislature would have an affirmative constitutional duty to 
appoint Presidential Electors before December 18 to assure 
Florida is represented in the Electoral College, because the 
Constitution dictates that each State Ashall@ appoint the requisite 
number of Presidential Electors Ain such Manner as the 
Legislature thereof may direct.@ U.S. CONST. ART. II, §1, ¶2. 
Where purported Electors have been chosen by an election 
process that was not conducted in the manner that the State 
Legislature had directed, then it becomes necessary for the State 
Legislature to exercise that appointment authority directly. 

2. The Question Whether A State Election Of Presidential 
Electors Has Failed To Make A Timely Choice That 
Conforms To Pre-existing Rules Is A Matter To Be Decided 
By The Political Branches Rather Than By The Courts. 

Although no single provision explicitly addresses which 
entity is responsible for deciding whether an election failed to 
make a choice that is timely and in conformance with pre- 
existing law under 3 U.S.C. §5, a careful reading of the 
Constitution and the United States Code dictates the answer: the 
responsibility falls first to the State Legislature and, if it has not 
exercised that prerogative, then to Congress. 

Article II, Section 1, of the United States Constitution 
expressly grants each State Legislature the authority to assure 
that its Electors are chosen in the manner it has directed. This 
constitutional power is conferred directly on the State 
Legislature, not on the State as a whole, and cannot be limited 
by state courts or even by a state constitution: 

AThe appointment of these electors is thus placed 
absolutely and wholly with the legislatures of the several 
states. . . . This power is conferred upon the legislatures 

of the states by the constitution of the United States, and 
cannot be taken from them or modified by their state 
constitutions any more than can their power to elect 
senators of the United States. Whatever provisions may 
be made by statute, or by the state constitution, to choose 
electors by the people, there is no doubt of the right of the 

5 

legislature to resume the power at any time, for it can 
neither be taken away nor abdicated.@ 

McPherson, 146 U.S. at 34-35 (favorably quoting 1874 Senate 
Report, supra). 

Because of the constitutional nature of a State Legislature’s 
appointment authority, Title III of the United States Code cannot 
be understood as a limitation on the State Legislature’s authority 
to appoint Presidential Electors. See 18 CONG. REC. 47 (1886) 
(statement of Rep. Dibble). Congress has no power to limit the 
exercise of a constitutional power granted directly to the State 
Legislatures. As Charles Pinckney stated: 

Nothing was more clear . . . than that Congress had no 
right to meddle with [the electoral college] at all; as the 
whole was entrusted to the State Legislatures, they must 
make provisions for all questions arising on the occasion. 

KURLAND & LERNER, FOUNDER’S CONSTITUTION 553. 

Instead, 

Title III merely regulates how Congress will exercise its own 
constitutional authority to count the electoral votes it receives. 

Indeed, even if it were constitutionally permissible for 
Congress to limit the appointment authority of State 
Legislatures, there is no reason to think Title III was ever 
intended to do so. Sections 2 and 5 of Title III were enacted as 
part of the Electoral Count Act of 1887, Ch. 90, 24 Stat.373, the 
very title of which emphasizes that it merely regulates 
Congress’s own authority to Acount@ electoral votes in cases 
where it is disputed whether the Electors were appointed in the 
manner directed by the State Legislature. Likewise, it is plain 
this Court did not understand Sections 2 and 5 to have limited 
the appointment power of State Legislatures, since the 
McPherson opinion in 1892 re-emphasized the plenary nature of 
that appointment authority five years after the Electoral Count 
Act was enacted. Being enacted in a period between this 1892 
opinion and the 1874 Senate Report quoted above, the Electoral 
Count Act of 1887 surely reflected the contemporaneous 
constitutional understanding that State Legislatures had 

6 

exclusive authority over their appointment power, and did not 
mean to abrogate it. 

Where a State Legislature has directly appointed its Electors 
because there was no election or it was determined that (for 
reasons of timeliness or deviation from pre-existing rules) the 
election failed to make a choice, there can be no legitimate 
dispute in Congress whether the directly appointed Electors were 
appointed in the manner directed by the State Legislature and 
thus should be counted. The direct appointment removes any 
ambiguity about the exercise of the State Legislature’s 
appointment authority. Thus, 3 U.S.C. §2 provides that 
Congress will recognize those direct appointments when 
Congress exercises its own counting power. Congress has a 
constitutional obligation to count the votes of any qualified 
Elector who was indisputably appointed by the State Legislature. 

Section 5 of Title III is meant to address the more 
complicated case where the State Legislature has not directly 
appointed its Electors but has instead directed that those Electors 
be chosen in an election conducted according to certain rules. 
Where the election process is conducted according to those pre- 
existing rules, then under Section 5 its results are conclusive on 
Congress when it counts the electoral votes. But Title III 
recognizes that controversies might arise about whether an 
election was in fact conducted according to pre-existing rules, 
raising questions about the validity of one or more slates of 
Electors. This would create an ambiguity about whether (or 
which of) the purported Electors were constitutionally appointed 
in a manner directed by the State Legislature. To resolve such 
controversies, Section 15 of Title III provides that it will then be 
up to Congress to determine whether the votes of the Electors 
before them have been Aregularly given@ in compliance with the 
timeliness and pre-existing rules provisions of 3 U.S.C. §5. See 
18 CONG. REC. 30 (1886) (statement of Rep. Caldwell); id. at 47 
(statement of Rep. Cooper). Section 15 goes on to set out 
elaborate rules for how the House and Senate will resolve 
objections that the votes of particular Electors were not 

Aregularly given.@ In essence, such objections are resolved by 
the concurrent agreement of the House and Senate, and where 

7 

they disagree the Electors who will be counted are those who 
were certified to Congress as the correct Electors by the State 
Governor. 3 U.S.C. §15. These elaborate rules would not have 
been necessary if Congress had envisioned the courts would 
decide the issue of which Electors’ votes were Aregularly given.@ 

The Florida Legislature respectfully submits that the Court 
should rule that questions regarding whether the electoral 
process has conformed with pre-existing law are not issues for 
this Court. Such questions should be determined by the State 
Legislature or, if it fails to act by December 18 when the 
Electors cast their votes, by Congress when it counts those 
electoral votes on January 6, 2000. Such a ruling that these are 
non-justiciable questions to be resolved by the political branches 
would recognize that the Constitution vests the State 
Legislatures with the power to appoint Electors, and Congress 
with the power to count their votes. It also makes the most sense 
of the United States Code governing how Congress exercises its 
counting powers. The alternative would put this Court in the 
uncomfortable position of seeking to enjoin how Congress 
exercises its constitutional counting authority and how the State 
Legislatures exercise their constitutional appointment authority. 

The situation is analogous to that under Article V, which 
requires that amendments to the Constitution be ratified either by 
conventions or by three-fourths of the State Legislatures. This 
requires determinations of the equally political (but even more 
fundamental) question whether each State Legislature has duly 
ratified, pursuant to Article 5, a proposed amendment to the 
Constitution. Even without any express constitutional provision 
empowering Congress to count ratifications by State 
Legislatures, this Court has ruled that Athe question of the 
efficacy of ratifications by state legislatures, in the light of 
previous rejection or attempted withdrawal, should be regarded 
as a political question pertaining to the political departments, 
with the ultimate authority in the Congress in the exercise of its 
control over the promulgation of the adoption of the 
amendment.@ Coleman v. Miller, 307 U.S. 433, 450 (1939). 
Indeed, four concurring Justices stated that "Congress has sole 
and complete control over the amending process, subject to no 

8 

judicial review." Id. at 459 (Black, J., joined by Roberts, 
Frankfurter & Douglas, JJ., concurring). 

A ruling of non-justiciability would avoid involving this 
Court in a political dispute best resolved by the political 
process. It is neither surprising nor inappropriate that the law3 
should lodge that authority in the State Legislatures and 
Congress. What is at stake here is after all a political 
determination of who shall be the next President. The issue to 
be determined is uniquely political. Nor is it likely to recur. 
Thus, in this rare circumstance, it is entirely appropriate to have 
it resolved by the branches of government that are most 
responsive to the will of the people. AThe constitution . . . 
recognizes that the people act through their representatives in the 
legislature, and leaves it to the legislature exclusively to define 
the method of effecting the object.@ McPherson, 146 U.S. at 27. 
In any event, whether desirable or not, that is the constitutional 
scheme. Id. at 35 (AThe question before us is not one of policy, 
but of power.@) 

In short, the Florida Legislature submits that the issue of 
whether its state electoral process has complied with pre-existing 
law and the directions of the State Legislature is a non- 
justiciable issue best resolved by the State Legislature 
responsible for giving those directions. It may be that Congress 
in exercising its counting authority under U.S. CONST. Amend. 
XII or 3 U.S.C. §15 may make its own determination of this 
question. In either event, such determinations should not be 
reviewable in any court. If this Court rejects that contention, 

3 

That the questions the parties ask this Court to answer are political in 

nature is a conclusion that accords with several of the criteria set out in 
Baker v. Carr, 369 U.S. 186, 271 (1962). There is indeed a "textually 
demonstrable constitutional commitment of the issue to a coordinate 
political department." Id. Moreover, a decision that would in effect decide 
the outcome of a Presidential election is "of a kind clearly for nonjudicial 
discretion." Id. Also the Court's intervention may be taken to imply "lack 
of respect due coordinate branches of government." Id. And finally there 
is indeed the "potentiality of embarrassment from multifarious 
pronouncements by various departments on one question.@ Id. 

9 

then it must determine for itself whether the state electoral 
process has complied with the provisions of 3 U.S.C. §5 and the 
State Legislature’s directions under U.S. CONST. ART. II, §1, ¶2. 
But, as demonstrated in the next section, the one entity that 
cannot be allowed to have sole unreviewable authority on this 
issue is the Supreme Court of Florida. 

3. If This Is A Matter Justiciable By The Courts, It Is A 
Matter of Federal Law To Be Determined Ultimately By 
This Court. 

If this Court rules that the issue is justiciable, then the 
Supreme Court of Florida cannot have the last word on what is, 
after all, a question of federal law. 3 U.S.C. §5 provides an 
express federal statutory requirement to have elections for 
Presidential Electors determined by pre-existing state election 
law. The question whether that federal requirement has been 
violated by a change in state law, if justiciable at all, is 
justiciable as a federal question. Likewise, U.S. CONST. ART. II, 
§1, ¶2 requires that Electors be appointed in conformance with 
the directions of the State Legislature. The issue of whether that 
constitutional requirement has been met, if justiciable, clearly 
presents a question of federal constitutional law. 

Section 5 of Title III lays down a federal standard for 
judging whether there has been such a failure to choose Electors: 
the appointment of Electors set out in state law "shall be 
conclusive, and shall govern in the counting of the electoral 
votes" but only if the State has "provided, by laws enacted prior 
to the day fixed for the appointment of electors, for its final 
determination of any controversy or contest concerning the 
appointment of all or any of the electors . . . by judicial or other 
methods or procedures . . . ." 3 U.S.C. §5 (emphasis added). 

Florida has in place an election code for the resolution of 
disputes and a court system, including a supreme court, with the 
usual judicial powers of such courts. This does not mean, 
however, that therefore whatever conclusion emanates from the 
Supreme Court of Florida must be taken as correct and final by 
this Court, the Florida Legislature and the Congress. Such a 

10 

reading of Section 5 would fail to offer assurance, which it is 
surely the intent of the Section to provide, see 18 CONG. REC. 47 
(1886) (statement of Rep. Cooper), that the rules and directions 
of the State Legislature have not been altered after the election 
to suit a particular outcome. Even if the section grants only 
procedural justice, what is in question here is precisely a change 
of election procedure. Pre-existing law did not provide that the 
election procedure would be whatever the Supreme Court of 
Florida decided it would be after the election. Rather, the pre- 
existing law provided that detailed statutory procedures were to 
be followed and that some issues were to be resolved by the 
Secretary of State (one of the Aother methods or procedures@ 
recognized under §5) rather than the courts. The Florida courts 
cannot be the final arbiter of whether they themselves have 
changed the methods and procedures directed by the Florida 
Legislature. See,e.g., Fairfax’s Devisee v. Hunter’s Lessee, 11 
U.S. (7 Cranch) 603 (1813) (review in the United States 
Supreme Court will lie to determine whether a state court has 
misinterpreted state law to defeat a federal right). 

Federal constitutional law is replete with instances in which 
a matter rests upon a determination of state law provided that the 
final state interpretation or application of that law does not 
depart from previously established state law. The rules of 
property law, for example, are exclusively the creation of state 
law, but in enforcing the Fifth Amendment’s proscription against 
taking property without just compensation, the federal courts 
review whether state law changed from what had previously 
been state law. See Lucas v. South Carolina Coastal 
Commission, 505 U.S. 1003, 1029 (1992) (property limitations 
that are Anewly . . . decreed@ by state courts can be takings if 
they do not reflect Arestrictions that background principles of the 
State's law of property and nuisance already place upon land 
ownership@ (emphasis added)); Phillips v. Washington Legal 
Foundation, 524 U.S. 156 (1998) (whether interest is the 
property of the owner of the principal depends on what the state 
law was prior to the regulation). Such an inquiry into the pre- 
existing condition of state law is also carried out to determine 
whether there has been a deprivation of "life, liberty or 
property, without due process of law." U.S. CONST. Amend. 

11 

XIV, §1. See, e.g., Cleveland Board of Education v. Loudermill, 
470 U.S. 532 (1985). Similarly, the Constitution's ex post facto 
clause, U.S. CONST, Art. I, §10, would be deprived of meaning 
if inquiry into whether a State has changed its previous law were 
foreclosed. 

In sum, where federal law requires that a rule of law, 
including a rule of state law, be previously established or 
enacted, as does 3 U.S.C. §5, it is a federal question whether the 
development of law by the courts, including state courts, 
constitutes an impermissible departure from such previous law. 
In this case, it appears that there may have been at least three 
sorts of departures from pre-existing law such as may deprive 
the choice of Electors of the conclusivity otherwise accorded to 
the state electoral process by Section 5. 

First, the Supreme Court of Florida, by extending the 
mandatory statutory seven-day deadline for reporting county 
results to the statewide commission, delayed certification of the 
vote count after the election, and significantly shortened the time 
in which contests regarding the vote as certified might be 
brought and adjudicated. By compressing that time, the court 
increased the likelihood that such contests would not be finally 
adjudicated by the date that a final choice of Electors by an 
election must be made (here, December 12, 2000) and therefore 
that the Legislature, under Section 2, would have the power and 
duty to appoint Electors. That compression and the seriousness 
of its consequences may constitute an important obstacle and 
deterrent to the full and fair adjudication of such contests. It 
also appears dramatically to change the existing law by which 
the Florida Legislature sought to appoint Electors. 

Second, the court below shifted responsibility to make any 
decisions about deadline waivers and interpretations of the 
election code to itself and away from the statute and the elected 
official, the Secretary of State, whom the Florida Legislature 
vested with the authority to make such decisions. The Supreme 
Court of Florida in essence re-wrote a statutory provision stating 
that voting returns Ashall@ be filed in time to say they Amay@ be 
filed in time, re-wrote a provision stating that the Secretary 

12 

Amay@ count late returns to provide instead that she Amust,@ re- 
wrote a seven-day reporting deadline provided by the legislature 
to a nineteen-day deadline, and re-wrote a statute that said the 
Secretary of State’s opinions Ashall be@ binding on county 
officials to say they shall not. These post-election4 
interpretations of the election laws do not appear to conform to 
pre-existing law. 

Third, it appears that several of the county canvassing boards 
may have failed to adhere to the rules and standards for whether 
and how to do manual recounts that they had adopted in previous 
elections, i.e. rules and standards in force "prior to [this 
election]," or in fact changed those rules and standards after they 
had begun counting the ballots in this election. Such departures 
by county canvassing boards would appear to violate 3 U.S.C. 
§5, to deprive the choice made by ballot on election day of 
conclusivity and to require the Florida Legislature to appoint 
Electors. Nor does it appear that any such departures merely 
constituted the application to these circumstances of previously 
established legal principlesCsuch as the primacy of the will of 
the people or the importance of determining ballot-by-ballot the 
intent of the voter. Such principles, invoked by the court below, 
are of such a high level of generality that they do not constrain 
at all and certainly do not offer the assurance required by section 
5 that the State not change the rules after the election has been 
held to suit the political circumstances. 

The fact is that there are 

many possible tests for judging the intent of the voter, and 
having chosen certain tests before the election as those best 
calculated to determine that intent, it would appear that the 
county canvassing boards cannot change the tests in midstream. 

4 

See FLA. STAT. §§102.111-112 (setting forth the deadlines); FLA. STAT. 

§106.23(2) (AThe Division of Elections shall provide advisory opinions when 
requested . . . . The opinion, until amended or revoked, shall be binding on 

any person or organization who sought the opinion or with reference to 
whom the opinion was sought@); FLA. STAT. §97.012 (AThe Secretary of 
State is the chief election officer of the state, and it is his or her 
responsibility to: (1) Obtain and maintain uniformity in the application, 
operation, and interpretation of the election laws.@) 

13 

Each of these departures from existing law may mandate a 
finding that Florida’s election process has violated Section 5. If 
so, unless corrected B by the Florida Legislature or as ordered by 
this Court B those violations may jeopardize Florida’s 
participation in the Electoral College. 

4. The Consequences Of A Decision By This Court That 
The Florida Electoral Process Has Not Conformed To Pre- 
existing Law. 

If this Court finds a violation of 3 U.S.C. §5, then it can 
order the Florida courts to correct the deviations from pre- 
existing law. Assuming these deviations are corrected by 
December 12, then the electoral process will have produced a 
result that conforms with 3 U.S.C. §5, and there would be no 
occasion for state legislative action. 

Alternatively, the Court might conclude there was a violation 
of 3 U.S.C. §5, but the violation cannot be corrected by 
December 12. This might be the case, for example, if the Court 
concludes that any manual recounts must be conducted under the 
pre-existing standard and there is not enough time to re-do the 
manual recounts under that standard. In that case, the Florida 
Legislature would be obliged to appoint Electors under 3 U.S.C. 
§2 by December 18. 

More complicated is the answer to the negative pregnant: 
what would be the consequences if this Court does not find that 
the Supreme Court of Florida violated 3 U.S.C. §5? Of course, 
if this Court should make such a ruling, the Florida Legislature, 
like other organs of government, state or national, would be 
bound to honor that determination. Marbury v. Madison, 5 U.S. 
(1 Cranch) 137 (1803). But the precise consequences would 
depend on the reasons given by the Court for its decision. 

If the Court does not make the finding because it concludes 
that the issue is not justiciable, then the Florida Legislature 
would itself be required to decide whether the election results 
comported with pre-existing law, and if the Florida Legislature 

14 

does not make such a decision by December 18, Congress would 
be obliged to decide the issue on January 6. 

Alternatively, if the Court limits its ruling, as Question 3 
suggests, to whether the Supreme Court of Florida has deviated 
from pre-existing rules, it would remain incumbent upon the 
Florida Legislature and Congress to decide whether the apparent 
deviations from prior standards by the county canvassing boards 
were sufficient to justify legislative appointment of Electors 
under 3 U.S.C. §§2, 5, 15, and U.S. CONST. Art II, §1. 

Finally, the Court might determine that departures from pre- 
existing methods and procedures by the Supreme Court of 
Florida are not sufficiently egregious to warrant correction by 
this Court. In that event, we would ask the Court also to rule 
that the Florida Legislature and Congress need not apply the 
same deferential standard and would thus not be bound by this 
determination in deciding whether, under the separate powers 
assigned to them by the Constitution, to appoint or count 
Electors. 

CONCLUSION 

The Court should rule that Questions 1 and 2 are not 
justiciable because their resolution lies in the hands of the 
Florida Legislature or, if it does not act, the Congress. If this 
Court nonetheless reaches those questions and concludes that the 
election decisions below deviated from pre-existing law, then the 
Court should order those deviations to be corrected before 
December 12, in which case the Electors will be determined by 
the choice of the voters under those pre-existing rules. If those 
deviations cannot be corrected by December 12, then it will 
become necessary for the Florida Legislature to exercise its 
authority to appoint Electors to comply with its constitutional 
duty to assure Florida is represented in the Electoral College. 

15 

Respectfully submitted, 

ROGER J. MAGNUSON 
CHARLES FRIED 

Dorsey & Whitney LLP 
Counsel of Record 

Pillsbury Center South 
1545 Massachusetts Ave. 

220 South Sixth St. 

Cambridge, MA 02138 

Minneapolis, MN 55402- 

Telephone: (617) 495-4636 

1498 Fax: (617) 496-4865 
Telephone: (612) 340-2738 
Fax: (612) 340-8856 
EINER ELHAUGE 

Counsel for Amicus 
1575 Massachusetts Ave. 

Curiae the Florida Senate 

Cambridge, MA 02138 

November 27, 2000 
Telephone: (617) 496-0860 
Fax: (617) 496-0861 

Counsel for Amicus 
Curiae the Florida House of 
Representatives