QUESTIONS PRESENTED 

1. Whether the Florida Supreme Court’s interpretation of 
Florida law presents a substantial federal question for this Court 
to review or instead a determination reserved to the States? 

2. Whether the State of Florida’s statutorily mandated manual 
recount process, indistinguishable from the laws of other states 
and reflective of a process that has been applied throughout this 
country for centuries, violates the U.S. Constitution? 

ii 

TABLE OF CONTENTS 

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

TABLE OF AUTHORITIES ........................ iii 

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

REASONS FOR DENYING THE WRIT .............. 14 

CONCLUSION .................................. 29 

BRIEF IN OPPOSITION TO PETITIONS 
FOR WRIT OF CERTIORARI 

In two companion petitions for writs of certiorari, Governor 
George W. Bush, together with related parties, asks this Court to 
interfere with ongoing manual recounts of the ballots cast in the 
State of Florida for the President of the United States as 
provided under Florida law. One petition, which seeks review 
of the judgment of the Florida Supreme Court interpreting 
provisions of the Florida Election Code governing manual 
recounts, rests on intemperate and insupportable 
mischaracterizations of that court’s decision as usurping the role 
of the state legislature. In fact, the Florida Supreme Court 
played a familiar and quintessentially judicial role: it interpreted 
Florida law “us[ing] traditional rules of statutory construction to 
resolve [statutory] ambiguities.” Slip op. at 39. Indeed, the court 
expressly “decline[d] to rule more expansively, for to do so 
would result in this Court substantially rewriting the Code. We 
leave that matter to the sound discretion of the body best 
equipped to address it – the Legislature.” Id. Thus, the 
questions purportedly framed in the petition are not in fact 
presented by this case. 

The other petition seeks certiorari before judgment in a case 
in which the U.S. District Court for the Southern District of 
Florida has merely denied a preliminary motion to restrain the 
recounts and the U.S. Court of Appeals for the Eleventh Circuit 
has denied an injunction pending appeal and has nearly 
completed expedited briefing. That petition necessarily would 
bring only an extremely narrow question for the Court’s 
consideration. In addition, that petition is riddled with non- 
record, ex parte, partisan accusations regarding the manner in 
which the Florida recount is proceeding. These accusations are 
false and have not been tested in court through cross- 
examination, verification, or judicial fact-finding. Indeed, 
Petitioners have deliberately avoided proceeding in the 
appropriate fora where their factual claims could be considered 
and resolved. All of this underscores the undeveloped nature of 
this case, the absence of adequate foundation in the courts 

2 

below, and the inappropriateness of the extraordinary step of 
certiorari before judgment. 

Moreover, the substance of Petitioners’ federal claims does 
not warrant review by this Court. Petitioners ask this Article III 
Court to interfere with a task that has been expressly delegated 
to the State of Florida by the U.S. Constitution’s command in 
Article II that “[e]ach 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.” U.S. Const. art. II, § 1, 
cl. 2 (emphasis added). This is not merely a question of a power 
“reserved” to the States by the Constitution, cf. U.S. Const. 
amend. X, but of an express constitutional delegation of 
exclusive authority. The Constitution explicitly confers upon the 
States plenary and exclusive power to establish the manner in 
which their presidential electors are chosen. 

Williams v. Rhodes, 
393 U.S. 23, 30-31 (1968); McPherson v. Blacker, 146 U.S. 1, 
27 (1892); Ray v. Blair, 343 U.S. 214, 224-25 (1952). At 
bottom, Petitioners seek to have this Court intervene in the 
process by which the organs of the Florida state government are 
effecting the procedure by which the State legislature has 
determined to appoint that State’s presidential electors. 

Beyond the obvious reasons that certiorari should be denied 
in this case – the patent insubstantiality of the federal claims 
presented, the absence of any conflict in authority, the utterly 
factbound and undeveloped nature of Petitioners’ arguments – 
there are profound reasons of institutional legitimacy that 
counsel against a grant of certiorari. 

To begin with, principles 
of federalism that this Court has repeatedly reaffirmed against 
vigorous challenge counsel strongly against interference by this, 
or any, federal court in the process articulated by Florida state 
law, as set out by statute and interpreted by the courts of that 
State. Only on the most compelling showing of a constitutional 
violation should a federal court interfere with this task, uniquely 
delegated by the Constitution to the State government. 

3 

Petitioners’ federal claims, even if properly presented,1 are 
insubstantial and do not come close to meeting the high 
threshold that would require this Court to interfere with a State’s 
process for appointing its electors for President of the United 
States. 

Finally, this Court’s involvement here will not add 
“legitimacy” to the outcome of the election. Contra Pet. for 
Certiorari, Bush v. Palm Beach County Canvassing Bd., 
No. 00-836 (Nov. 22, 2000) [hereinafter Bush Pet.] at 12. 

The 
cases below involve only questions of Florida state law, 
questions that even Petitioners ultimately agree are within the 
power of the Supreme Court of Florida to resolve. Id. at 10 
(“Given the national significance of the Florida election results, 
it is essential that the counting of ballots be conducted in a fair 
and consistent manner in accordance with established Florida 
law.”). This Court’s interference with the normal processes by 
which questions of state law are resolved, and indeed, with the 
ongoing processes by which the President and Vice-President of 
the United States are chosen, would only diminishthe legitimacy 
of the outcome of the election. That is particularly true given 
that it is difficult to imagine how this Court could intervene in 
the still-ongoing state proceedings so rapidly and clearly as not 
to deflect and derail the election process in untoward and 
unprecedented directions. 

Thus, even if it were true that the outcome of the case may 
raise for the public “questions of similar magnitude” to those 
presented in cases such as United States v. Nixon, 418 U.S. 683 
(1974), see Pet. for Certiorari, Siegel v. LePore, No. 00-837 
(Nov. 22, 2000) [hereinafter Siegel Pet.] at 15, it presents no 
federal constitutional questions of similar magnitude – indeed, 

1 There is the g reatest dou bt that Petition ers’ federa l claims in th e state 
court action are fairly presented here, given that Petitioners consciously 
decided to avoid discussing federal law in the Florida trial court and raised 
the question before the state Supreme Cou rt only in a few pages at the end of 
a brief there. See Slip op. at 10 n.10. 

4 

no constitutional questions of any real substance at all. Thus, the 
petitions for certiorari in both Bush v. Palm Beach County 
Canvassing Board and Siegel v. LePore should be denied. 

STATEMENT OF THE CASE 

A. The Election 

On November 7, 2000, Florida citizens cast over 5,820,000 
ballots in the general election for the President of the United 
States. Under Florida’s election law, the outcome of this 
election would determine what slate of electors would cast 
Florida’s twenty-five electoral votes for the President of the 
United States. 

Based on initial returns transmitted to it by the county 
canvassing boards of Florida’s sixty-seven counties, on 
Wednesday, November 8, 2000, the Florida Division of 
Elections (“Division”) reported that Governor George W. Bush 
had received 2,909,135 votes for President and that Vice- 
President Al Gore had received 2,907,351 votes. 

B. Florida’s Recount Provisions 

Because the margin between the two leading candidates was 
less than one-half of one percent of the total votes cast for that 
office, Florida law required an automatic recount of the ballots. 
Fla. Stat. § 102.141(4). No specific process is required under 
Florida law for this recount. Most counties conducted this 
recount by simply repeating whatever process, usually machine, 
they had used to count the ballots initially. A few counties, 
however, conducted hand recounts. At the end of this initial 
automatic recount, the margin between the two leading 
candidates for President of the United States was reduced from 
the initially stated 1,784 votes to 300 votes. 

Florida law provides that its counties may conduct a further 
manual recount to address “an error in the vote tabulation which 
could affect the outcome of the election.” Fla. Stat. 
§ 102.166(5). In any county, any candidate “may file a written 
request with the county canvassing board for a manual recount.” 

5 

Id. § 102.166(4)(a). The statute requires that the request 
“contain a statement of the reason the manual recount is being 
requested.” Id. Any such request “must be filed with the 
canvassing board prior to the time the canvassing board certifies 
the results for the office being protested or within 72 hours after 
midnight of the date the election was held, whichever occurs 
later.” Fla. Stat. § 102.166(4)(b). 

The purpose of the manual recount is to determine 
whether there is “an error in the vote tabulation which could 
affect the outcome of the election.” Fla. Stat. § 102.166(5). If 
a county canvassing board decides to grant a request for a 
manual recount, it need not initially order a county-wide recount. 
Rather, an initial recount only “must include at least three 
precincts and at least 1 percent of the total votes cast for such 
candidate or issue * * * . The person who requested the recount 
shall choose three precincts to be recounted, and, if other 
precincts are recounted, the county canvassing board shall select 
the additional precincts. Id. § 102.166(4)(d). The statute further 
provides that: 

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

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

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

(c) Manually recount all ballots. 

Fla. Stat. § 102.166(5) (emphasis added). 

Manual recounts must be conducted in accordance with the 
procedures set forth in Section 102.166(7). Those procedures 
require that the county canvassing board appoint counting teams 
of at least two electors who are members of different political 
parties to manually recount the ballots. If a counting team is 
unable to determine a voter’s intent in casting a ballot, the ballot 

6 

must be “presented to the county canvassing board for it to 
determine the voter’s intent.” Fla. Stat. § 102.166(7)(a)-(b). 

C. The Manual Recounts, Petitioners’ Attempted Federal 

Action, and the Scope of the Siegel Petition 

After the automatic statewide recount reduced the margin 
between Governor Bush and Vice-President Gore to 300 votes, 
the Florida Democratic Party requested a manual recount in four 
Florida counties: Palm Beach, Volusia, Broward, and Miami- 
Dade. Pursuant to those requests and the requirements of Florida 
Statutes Section 102.166(4)(d), the county canvassing boards of 
those counties conducted a sample manual recount of 1 percent 
of the total votes cast in their respective counties.2 

2 Both Palm Beach County and Broward County employ a punch card 
balloting system. Voters in the counties are given a rectangular card ballot 
covered with perforated squares. Although the squares are numbered, the 
candidates’ names do not ap pear on the ballot. Voters a re instructed to slide 
the card into a machine, which holds a book listing the candidates for office 
next to a series of holes. Voters are told to insert the stylus provided into the 
hole next to the ir candida te of choic e. The goal of the voting machine set up 
is that the stylus will be inserted in such a way that a “chad,” one of the 
perforated squares, is completely separated from the ballot. If this happens 
a machine reader will later be able to count the votes re flected on the ballot. 
Unfortunately, a chad does not always fully separate from a ballot when 
punched by a stylus. The chad may o nly partially detach from the card, or, 
if the voting machine becomes clogged with chad from previous voters, the 
ballot may only be “d impled.” The m achine re ader will not be able to read 
the ballot. 

Su ch unco unted b allots are called “under votes.” 
Because of the high percentage of undervotes created by punch card 
voting systems, the vast m ajority of counties in Florida do not use them. In 
Broward County, the undervote in the November 7, 2000, election for 
President was over 6,000 ballots. In Palm Beach County it was an incredible 
10,750 ballots. Ab sent a manual recoun t, the votes re flected on these ballo ts 
would not be counted in the election. 

The dislodging of chad from punch card ballots is a consequence of the 
fact that partially d islodged chads re main atta ched to th e cards. 

See De cl. of 
Rebecca Mercuri, App. of Appellee-Intervenor Florida D emocratic Party in 
Siegel, No. 00 -15981-C (CA11) tab 16, ¶ 9. Contrary to the suggestion of 
Petitioners’ filing, it is virtually impossible to dislodge chads that have not 
already been partially dislodged. See Lee Gomes, Chads - How Tough Are 

7 

At the conclusion of those initial recounts, each of the four 
counties ultimately determined that the sample had revealed 
tabulation discrepancies that could affect the outcome of the 
election and decided, consistent with the requirements of Section 
102.166(5)(c), to manually recount all of the ballots cast in their 
respective counties in accordance with Florida Statutes Section 
102.166(5)(c). 

Petitioner Bush did not request a manual recount in any 
Florida county. (Neither did he then or at any time since object 
to including hundreds of ballots in his favor that were counted by 
hand initially and in the initial recount.) Instead, on 
November 11, 2000, a day when he could himself still have 
sought countywide recounts in most Florida counties, he filed 
the Siegel case (in which Petitioners now seek certiorari before 
judgment) in the U.S. District Court for the Southern District of 
Florida seeking to have the federal courts enjoin the ongoing 
Florida process for counting ballots in its election. In the 
complaint, and despite the fact that they had neither requested 
nor been denied manual recounts anywhere in Florida, 
Petitioners alleged that the manual recounts in four counties, 
which had not yet begun, would violate Equal Protection, Due 
Process, and the First Amendment. 

On November 13, 2000, following briefing by the parties, a 
district court properly denied Plaintiffs’ Emergency Motion for 
Temporary Restraining Order and Preliminary Injunction 
through an extensive Order (the “Order”), Siegel v. LePore, No. 
00-9009-civ, 2000 WL 1687185 (S.D. Fla. Nov. 13, 2000), on 
the grounds that: (a) federal court intervention would 
inappropriately interfere with Florida’s selection of its 
presidential electors; (b) the Florida statute providing for the 
manual recounting of election results, Fla. Stat. § 102.166, is 
reasonable and non-discriminatory and does not violate the First 
or Fourteenth Amendments or result in a constitutional 

They?, WALL ST. J., Nov. 22, 2000, at B1. 

8 

deprivation of any kind; (c) Petitioners’ alleged injuries are 
speculative and far from irreparable; and (d) Petitioners failed to 
present evidence that they lack an adequate state law remedy. 
Petitioners’ claims, the court held, did not demonstrate “the clear 
deprivation of a constitutional injury or a fundamental unfairness 
in Florida’s manual recount provision.” Order at 24. Moreover, 
the court noted, Petitioners’ allegations that manual ballot 
recounts are unreliable were similar to the garden-variety 
election disputes that federal courts routinely decline to consider. 
Finally, the court noted that it was not in the public interest to 
prevent the revelation of the results of a recount, truth being an 
essential element of a democracy. It is in the appeal of that 
Order denying a preliminary injunction – and only that order – 
that the Siegel Petitioners seek certiorari before judgment in the 
Eleventh Circuit.3 

3 Governor Bush appealed the denial of the preliminary injunction to the 
United States Court of Appeals for the Eleventh Circuit and sought an 
injunction pending appea l from tha t court. After directing that the cause 
would be heard en banc and ordering briefing, the court of appeals denied the 
emergency motion for an injunction pending appeal. Like the district cour t, 
the court of appeals found that states had the primary authority to determine 
the manner of app ointing p residential e lectors and to resolve controversies 
concerning that process. Because the State of Florida had in place procedures 
by which Governor Bush could as sert his con stitutional claim s in the cou rts 
of that State, the court of appeals held that he had not demonstrated a 
substantial threat of irreparable injury sufficient to warrant extraordinary 
relief. The court of appeals granted, however, Governor Bush’s motion for 
an expedited briefing schedule and later issued a scheduling order. Under the 
present order, Governor Bush is directed to file a supplemental brief no later 
than Monday, November 27, 2000, at 12 noon, describing the impact of the 
Florida Supreme Court’s opinion on the claims pending before the Eleventh 
Circuit. Appellees must file briefs by Tuesday, November 28th at 12 noon 
and Governor Bush’s reply brief is due on Tuesday, November 28th at 10 

p. m. If oral argument is deemed necessary, it will be held on Wednesday, 
November 29th at 1: 30 p.m. 

9 

D. The Florida Supreme Court Decision at Issue in the Bush 

Petition 

Once a county canvassing board certifies an election, it 
transmits the results to the Florida Secretary of State, who then 
transmits them to the Elections Canvassing Commission so that 
it can declare the winner for each office. Two Florida statutes 
purport to define the obligation of the county canvassing boards 
to transmit their certifications to the Secretary of State. Section 
102.111 provides that county returns must be transmitted to the 
Secretary of State no later than 5 p.m. of the seventh day 
following the election and that any missing counties “shall be 
ignored.” By contrast, the later-enacted Section 102.112(1) 
provides that any county returns not received by 5 p.m. on the 
seventh day “may be ignored.” Section 102.112(2) imposes a 
fine of $200 for each county canvassing board member for each 
day that county’s returns are late. The Florida Supreme Court 
decision of which the Bush Petitioners seek review involves only 
the interpretation of these provisions of State law. 

The lawsuit that forms the basis for the Bush Petition was 
filed in the Circuit Court of the Second Judicial Circuit in Leon 
County on November 13, 2000. Originally brought by Volusia 
County, but subsequently joined by Palm Beach County, it 
sought a declaratory judgment that the county was not bound by 
the November 14, 2000, deadline set by the Secretary of State 
(Petitioner Bush’s state campaign co-chair) for submitting 
certified vote totals and an injunction prohibiting the Secretary 
from ignoring election returns resulting from manual recounts 
authorized by Florida law but submitted after that date. On 
November 14, 2000, the Leon County court held that although 
counties did have to comply with the statutory deadline, they 
could file supplemental returns reflecting the outcome of hand 
recounts. The Court admonished the Secretary that she could not 
decide in advance whether to exercise her discretion to accept 
late-filed returns, but had instead to consider the reasons offered 
for the late filing before deciding whether it would be accepted 
or not. The counties appealed to the First District Court of 

10 

Appeals. 

In response to the Leon County order, Secretary Harris 
issued a directive requiring that all counties intending to submit 
late returns inform her of that fact and the reasons for the late 
returns by 2:00 p.m. on Wednesday, November 15. 

Four 
counties did so. After the Secretary concluded that the reasons 
supplied by the counties for submitting manual recounts were 
insufficient to justify the acceptance of late returns and again 
announced that she would not include the results of any manual 
recounts completed after November 14 at 5:00 p.m., the Florida 
Democratic Party and Vice-President Gore filed a motion in the 
Leon County Circuit Court seeking to enforce that court’s prior 
injunction against the Secretary. On Friday, November 17, 
2000, the Leon County court announced its opinion that the 
Secretary’s actions had not violated the court’s injunction. The 
Florida Democratic Party and Vice-President Gore appealed, and 
the First District Court of Appeals certified both appeals for 
immediate review by the Florida Supreme Court. On Tuesday, 
November 21, 2000, after full briefing and oral argument, that 
court issued the decision below. 

The Florida Supreme Court found that the questions before 
it included the following issues of Florida law: 

“Under what circumstances may [a County Canvassing] 
Board authorize a countywide manual recount pursuant 
to section 102.166(5); must the Secretary [of State]” and 
“[State Election] Commission accept such recounts when 
the returns are certified and submitted by the Board after 
the seven day deadline set forth in sections 102.111 and 
102.112?” 

Slip op. at 10. The Court noted pointedly that “Neither party has 
raised as an issue on appeal the constitutionality of Florida’s 
election laws.” Id. at n.10. 

The Court stated that it would resolve the issues according 
to familiar principles of statutory interpretation, guided by an 
appreciation of the importance of the right to vote under Florida 

11 

law. “Where the language of the Code is clear and amenable to 
a reasonable and logical interpretation, courts are without power 
to diverge from the intent of the Legislature as expressed in the 
plain language of the Code.” Id. at 24. “[H]owever, chapter 102 
is unclear concerning both the time limits for submitting the 
results of a manual recount and the penalties that may be 
assessed by the Secretary.” Id. “In light of this ambiguity, the 
Court must resort to traditional rules of statutory construction in 
an effort to determine legislative intent.” Id. 

The Florida Supreme Court applied four traditional canons 
of construction: “First, it is well-settled that where two statutory 
provisions are in conflict, the specific statute controls the 
general.” Id. at 24. “Second, it is also well-settled that when 
two statutes are in conflict, the more recently enacted statute 
controls the older statute.” Id. at 25. “Third, a statutory 
provision will not be construed in such a way that it renders 
meaningless or absurd any other statutory provision.” Id. at 26. 
“Fourth, related statutory provisions must be read as a cohesive 
whole.” Id. 

Based on these unexceptional principles of statutory 
construction, the unanimous Court, per curiam, determined that 
consistent with the permissive language of Section 110.112, the 
Secretary was not required by the Election Code to ignore the 
results of manual recounts, even when the recount could not be 
completed by the seven-day deadline specified in those sections. 
Id. at 18-29. 

In light of the “preeminent status the right of suffrage has 
been consistently accorded in Florida law,” id. at 30, the Court 
concluded that “the authority of the Florida Secretary of State to 
ignore amended returns submitted by a County Canvassing 
Board may be lawfully exercised only under limited 
circumstances * * * .” Id. at 32. In this case, ignoring the 
returns would be appropriate under Florida law only if the 
returns are submitted to the Department so late that their 
inclusion will compromise the integrity of the electoral process 

12 

in either of two ways: (1) by precluding a candidate, elector, or 
taxpayer from contesting the certification of an election pursuant 
to Section 102.168; or (2) by precluding Florida voters from 
participating fully in the federal electoral process pursuant to 3 
U.S.C. §§ 1-10. Id. at 33. 

In light of the unique circumstances of the case, the court 
invoked its equitable powers to fashion a remedy that would 
allow a fair and expeditious resolution of the questions 
presented. Id. at 39. After noting that the court at oral argument 
had inquired whether the presidential candidates were interested 
in the court’s consideration of reopening the opportunity for 
recounts in additional counties, and that neither candidate 
requested such an opportunity, id. at 40 n.56, the court set 
deadlines designed to address the state law contest and federal 
electoral college deadline points noted above. Specifically, the 
court ruled that the Secretary should accept amended certificates 
reflecting manual recounts if they are filed by 5:00 p.m. on 
Sunday, November 26, 2000 (or Monday morning, at the 
Secretary’s option). 

E. The Petitions for Certiorari 

Pursuant to the Florida Supreme Court’s ruling, manual 
recounts continue in Broward and Palm Beach counties. In their 
petitions, Petitioners seek to bolster their unusually weakfederal 
claims with wild, irresponsible and utterly unsupported 
allegations concerning the conduct of those recounts. This Court 
should be particularly aware that this material, which is untested 
and which we believe to be utterly false, has never been 
presented to any court before now and is not a part of the record 
in either of the cases of which Petitioners seek review. In any 
event, the conduct of the recounts is of course subject to state 
court oversight, and Petitioners have available to them ample 
means under state law to challenge the conduct of any manual 
recount, including challenges to the inclusion in the final tally of 
any ballot that they believe should not have been counted, or to 
the exclusion of any ballot that they believe should have been 

13 

counted. See Fla. Stat. § 102.168(3)(c). The state forum 
provided by statute would be the appropriate place to bring in the 
first instance any complaints about the conduct of the ongoing 
manual recounts, rather than raising such complaints before this 
Court in petitions seeking review of decisions having nothing to 
do with that question, and in which those complaints were 
neither raised nor decided below. 

In any event, the Court should also rest assured that what is 
actually happening in Broward and Palm Beach counties is 
nothing like Petitioners describe. As recently as last night, 
Petitioners asked the court of appeals to supplement the record 
with numerous affidavits and news reports detailing “ballot 
abuse.” Taken collectively, the affidavits allege that 
“unaccounted for chad” is being dislodged from the ballots as 
they are counted, that a few ballots were temporarily placed on 
the wrong pile, that two ballots were folded and a few others 
twisted, and that one vote counter “smelled rum” from a source 
he could not identify while in the counting room. Not only are 
these allegations far too trivial even to approach the standard 
necessary to assert a constitutional violation or to outweigh the 
countervailing interest in counting the tens of thousands of 
ballots not counted by the machines, they are contradicted by 
facts that are in the record. Moreover, reliable evidence 
contradicts Petitioners’ contention that the counting rooms 
themselves are circus-like or that the counters are deliberately 
seeking to alter the ballots. Palm County Canvassing Board 
Chair Judge Charles Burton testified about the recount process 
underway in that county before the Palm County Circuit Court 
on November 22, 2000. In that testimony he confirmed that the 
atmosphere in the counting rooms was appropriate, that the vote 
counting was proceeding in an orderly way, and that ballots were 
not being degraded by the recount process. 

14 

REASONS FOR DENYING THE WRIT 

CERTIORARI SHOULD BE DENIED BECAUSE 
PETITIONERS RAISE NO SUBSTANTIAL FEDERAL 
CLAIM AND THIS COURT’S INTERVENTION WOULD 
DISSERVE THE NATIONAL INTEREST. 

I. PRINCIPLES OF FEDERALISM COUNSEL 
STRONGLY AGAINST ACCEPTING PETITIONERS’ 
INVITATION TO INTERFERE WITH FLORIDA’S 
ELECTORAL PROCESS 

The authority of the States to establish principles and 
procedures for selecting their electors is fundamental to state 
sovereignty. By expressly providing for state discretion, the 
Framers constitutionalized each state’s right to organize and 
administer elections in the manner that best reflected the will of 
its respective citizenry, thereby reinforcing the decentralized 
nature of American Government. Petitioners ask this Court to 
intervene in this fundamental state matter and to interfere with 
the extensive, constitutionally authorized statutory process 
provided by Florida for selecting presidential electors. There is 
no basis for that request. 

The Florida legislature exercised its constitutional authority 
by deciding that presidential electors are to be selected by 
popular vote in accordance with that state’s election laws. See 
Fla. Stat. § 103.011. Moreover, as described above, it enacted 
a specific set of procedures to be followed for recounting 
(including manual counting) and confirmation of ballots cast for 
the purpose of designating presidential electors. See generally 
Fla. Stats. §§ 102.061, 102.111, 102.112, 102.141, 102.166, 

97.021, 101.5603. The manual recount now underway was 
triggered under state law by anomalies in initial automated 
counts and was the object of a timely and proper request. 
Florida has embarked upon an orderly and structured process 
pursuant to its comprehensive statutory system to enfranchise 

15 

voters by attempting to count accurately the votes cast. That 
process appropriately includes a combination of manual and 
automated ballot counts. Petitioners ask this Court effectively 
to substitute its judgment for that of Florida, which enacted 
detailed election procedures through the lawful exercise of its 
authority over the appointment of electors. To do so would 
violate Article II, Section 1, Clause 2, of the U.S. Constitution, 
ignore 3 U.S.C. § 5, and implicate significant Tenth Amendment 
concerns.4 

This lawsuit thus is a patent attempt to federalize a state law 
dispute over whether a manual recount is authorized and 
appropriate. The manual recount not only is fully authorized 
under Florida law, it has now been expressly approved by a 
unanimous Florida Supreme Court based on its longstanding 
adherence to the principle of Florida law that the will of the 
people is paramount. Slip op. at 9. The Florida Supreme Court 
has carefully preserved the right of Petitioners or others to 
contest the certification of an election pursuant to Florida law. 
Intervention by this Court in this ongoing process could cause 
irreparable delay at a critical moment and would work a 
significant intrusion into a matter – the selection of electors – 
that is both fundamental to state sovereignty and constitutionally 
reserved to the States. 

4 An injunction prohibiting a manual recount would do m ore than forbid 
the State from engaging in a challenged practice. Given the State’s obligation 
under Article II of the Constitution to compose a slate of electors, such an 
injunction would affirmatively force the State to conduct its vote count and 
verification according to a particular federal vision of how that count and 
verification should p roceed. C f. Printz v. United States, 521 U.S. 898, 935 
(1997) (“The Federal Government may neither issue directives requiring the 
States to address particular problems, nor command the States’ officers, or 
those of their political subdivisions, to administer or enforce a federal 
regulatory program.”). Indeed, the very suggestion that federal courts might 
reach into state governmental machinery to tell the states how to make and 
interpret their own laws would fly in the face of basic principles of 
federal ism. See New York v. United States, 505 U.S. 144, 178 (1992) 
(Congress may not command states to legislate). 

16 

II. NOTHING IN FEDERAL LAW PROHIBITS THE 
FLORIDA SUPREME COURT’S ROUTINE 
INTERPRETATION OF FLORIDA’S ELECTION 
LAW 

Petitioners make the stunning argument that federal law 
somehow disables the Florida courts from playing their ordinary 
role in this case of interpreting Florida law, and that federal law 
overrides the Florida court’s determination that the seven-day 
deadline contained in Fla. Stats. §§ 102.111 and 102.112 does 
not stop the manual recounting of ballots or the inclusion of 
those recounts in the final tally. See Bush Pet. at 12-18. The 
flimsiness of this argument is self-evident. 

1. Title 3. The federal statute principally invoked by 
Petitioners, 3 U.S.C. § 5, provides that each state’s procedures 
for settling “any controversy or contest concerning the 
appointment of all or any of the electors” shall be conclusive 
with respect to the choice of that state’s electors if the state 
procedures were “provided[] by laws enacted prior to the day 
fixed for the appointment of the electors.” Petitioners argue that 
the decision of the Florida Supreme Court somehow violated this 
statute by creating a “new legal rule[]” that would apply 
“retroactively.” Bush Pet. at 13-17. 

To begin with, Petitioners’ argument is based on a flat 
misstatement of the requirements of the statute, which in fact 
provides that disputes must be resolved “by judicial or other 
methods or procedures” “provided[] by laws enacted prior to” 
election day. There thus is literally nothing to Petitioners’ 
argument. The laws of Florida, of course, established the state 
judiciary as the mechanism for deciding “controvers[ies] and 
contest[s]” about all questions of Florida law, and not just those 
concerning appointment of presidential electors. See Fla. Const. 
art. V, § 1 (“The judicial power shall be vested in a supreme 
court, district courts of appeal, circuit courts and county 
courts.”); id. art. V, § 20(c)(3) (granting circuit courts original 

17 

jurisdiction “in all cases in equity” and reaffirming the Supreme 
Court’s pre-existing jurisdiction). 

In any event, the decision by the Supreme Court of Florida 
amounts to an ordinary act of statutory interpretation of a law 
enacted prior to the election, not to a new “enactment.” This is 
clear from even a cursory review of the opinion of the Florida 
Supreme Court below. The court dealt with the conflict between 
the provision of Florida law that said that returns filed after 
seven days “shall” be ignored, and the parallel provision saying 
that they “may” be ignored, by giving credence to the more 
specific, and the more recent, provision, a canon of construction 
certainly familiar to this Court as well. See Slip op. at 24-25. 
The court also recognized that the provision for fines for late 
submission of returns implied that they could, indeed, be 
accepted late. Id. at 27. It concluded, in light of the state 
constitution and the provisions outlining detailed procedures for 
manual recounts, that the Secretary’s discretion to ignore the 
results of those manual recounts was strictly limited. Id. at 30- 

35. We respectfully submit that the decision below is 
persuasive, but whether one agrees or disagrees with it, it cannot 
be denied that it is an ordinary interpretation of a complex 
statutory scheme. 

Thus, the questions purportedly framed in the petition are not 
in fact presented by this case. The Florida Supreme Court’s 
routine interpretation of its statutory scheme does not “change 
the rules” in any way that implicates federal law. Petitioners 
seek to transform their disappointment with the Florida Supreme 
Court’s authoritative interpretation of Florida law into a 
“constitutional” claim by arguing that it amounted to a change 
in the rules after the fact. If they were correct that they thereby 
stated a constitutional claim, every disappointed state court 
litigant would be able to bring a similar challenge in federal 
court. Permitting our state courts to interpret their laws – in 
ways that will, by definition, disappoint one or another litigant 
– of course does not violate the federal Constitution. At bottom, 
Petitioners’ contention is that the Florida Supreme Court 

18 

committed an error of state law. This argument does not 
describe post-election judicial legislation, so as to implicate 3 
U.S.C. § 5 or Article II, § 1, nor does the argument state a due 
process claim. A “‘mere error of state law’ is not a denial of due 
process.” Engle v. Isaac, 456 U.S. 107, 121 n.21 (1982) 
(quoting Gryger v. Burke, 334 U.S. 728, 731 (1948)). 5 

2. Article II. Petitioners’ argument that the delegation of 
authority to the state “Legislature” in Article II eliminates the 
state courts’ power to interpret state law amounts to much the 
same thing: a request that this federal court alter the state 
Supreme Court’s interpretation of state law. See Bush Pet. at 19 
(repeating Petitioners’ unavailing argument before the state 
Supreme Court about what the “manner” of appointed electors 
is under state law). The delegation, like other delegations of 
authority to the States, see U.S. Const. art. I, § 4, means that the 
procedure for appointing electors is a matter of state law, the 
ultimate meaning of which must be determined by state, not 
Federal, courts. 

III.THE FLORIDA RECOUNT PROVISIONS ARE 
UNEXCEPTIONAL; PETITIONERS’ SUBSTANTIVE 
CONSTITUTIONAL CHALLENGE TO THEM IS 
INSUBSTANTIAL 

Petitioners next allege that the manual recounts now being 
conducted in accordance with Florida law are “selective, 
arbitrary, and standardless,” and thus violate the federal 
Constitution. See Siegel Pet. at 15. The Florida provisions for 

5 “[T]he concept of the separation of powers embodied in the United States 
Constitution is not mandatory in state governments.” Sweezy v. New 
Hampshire, 354 U.S. 234, 255 (1957). Indeed, “[i]t would make the deepest 
inroads upon our federal system for this Court now to hold that it can 
determine the appropriate distribution of powers and their deleg ation with in 
the forty-eight states.” Id. at 256 (Frankfurter, J., joined by Harlan, J., 
concurring in the judgm ent). 

19 

manual recounts are, however, utterly unexceptional. To permit 
the government of each county to conduct the election within 
that county has a long and uninterrupted history in this Nation, 
going back to the founding. The availability of the manual 
recount as a standard post-election procedure is a longstanding 
feature of Florida law, and of the law of other States,6 and has 
been repeatedly used as part of Florida’s system of electoral 
checks and balances to ensure that all lawfully cast ballots are 
counted.7 The Florida scheme provides citizens of each county, 
and candidates for office within each county, with equal rights. 
The manual recount procedure violates neither Equal Protection, 
nor Due Process, nor the First Amendment. 

1. Equal Protection. The weakness of Petitioners’ 

6 At least 20 other states h ave enacted statutes allowing or even – as in 
Texas – encouraging the use of manual recounts to back up punch-card 
tabulation systems. See Ca l. Elec. Co de § 15 627; Colo. Rev . Stat. § 1-10.5- 
102(3); 10 Ill. Comp. Stat. § 5/24A-15.1; Ind. Code § 3- 12- 3-13; Iowa Code 
§ 50.48(4 ); Kan. S tat. § 25- 3107(b); Md. Code § 13- 4; Mass. Gen. Laws ch. 
54, § 135B; Minn. R. 8235.1000; Mont. Code § 13-16-414(3); Neb. Rev. 
Stat. § 32-1119(6); Nev. Rev. Stat. § 293.404(3); N.J. Stat. § 19:53A-14; 25 
Pa. Code § 3031.18; S. D. Admin. R. 5:02:09:05(5); Tex. Elec. Code § 
212.005(d); Vt. Stat. § 2601l; Va. Code § 24.2- 802( C); W. Va. Code § 3-4A- 
28(4); Wis. Stat. § 5.90. 

7 Indeed, the fact that counties have different ballot marking and counting 
systems justifies the need for statutory checks and balances such as a manual 
recount process. For example, most counties in Florida utilize an optical 
scanning vote count system. That system performed with great accuracy 
during the presiden tial race, resu lting in only a 0.4% undervo te rate (4 in 
1000 ballots). (See Decl. of Jon M. Ausman, App. Brief of Appellee- 
Intervenor Florida Democratic Party in Siegel, No. 00-15981-C (CA11), tab 
13, ¶ 8.) In contrast, punch card systems such as those used in Palm Beach, 
Broward and Miami-Dade counties experienced a 3.2% undervote rate (32 
in 1000 ballots) in the pre sidential race. (Decl. of Jon Ausman, App. tab 
13, ¶ 9.) The manual recount process can ameliorate some of the dispa rity 
created by the use of different marking and counting equipment. Such a 
system not only does not violate the Equal Protection Clause, but it also 
enhances the equality of the voting process. 

20 

constitutional claim is reflected in the imprecision with which 
they identify the source of the alleged rights at issue. In Siegel, 
their first argument is that the recounts violate “Equal 
Protection,” ostensibly because the recounts that are underway 
will “dilute” the votes of certain voters “based on the counties in 
which they live.” Siegel Pet. at 17. 

There is no principle of Equal Protection that is violated by 
the Florida procedure. The “dilution” cases Petitioners cite, e.g., 
Reynolds v. Sims, 377 U.S. 533 (1964); Roman v. Sincock, 377 
U.S. 695 (1964), involve the one-person one-vote principle 
under which voters from different districts cannot be given votes 
of unequal “weight.” This issue is not even presented in an at- 
large election like the instant one where, although the elections 
are conducted by individual counties, the winner is determined 
based on his or her statewide vote. When the state undertakes 
procedures to ensure that qualified voters’votes are counted, the 
previously counted votes are not, of course, “diluted” at all. 
And, as this Court has previously recognized, manual recount 
procedures, like those that are included in Florida law, are a 
completely ordinary mechanism for ensuring the accuracy of 
vote-counts in close elections. See Roudebush v. Hartke, 405 
U.S. 15, 25 (1972) (“A recount is an integral part of the Indiana 
electoral process and is within the ambit of the broad powers 
delegated to the States by Art. I, § 4.”).8 

8 Petitioners’ assertion of a conflict with Roe v. Alabama, 43 F.3d 574 
(CA11 1995) (“ Roe I”), and Roe v. Alabama, 68 F.3d 404 (CA11 1995) 
(“Roe III”), also is misplaced. In these cases, an A labama state court ordered 
the counting of contested absentee ballots that were neither certified nor 
notarized as required by Alabama’s absentee ballot law and, under standard 
Alabama practice, would have been excluded. The unlawful vote dilutio n in 
the Roe cases is qu ite different fro m this cas e. The availability of the manual 
recount as a standa rd post-e lection procedure is a longstanding feature of 
Florida law, and has been repeatedly used as part of Florida’s system of 
electoral checks a nd balan ces to ensure that all lawfully cast ballots are 
counted. Petitioners make no allegation that unlawful ballots are now being 
counted in violation of any statute or general practice of the State of Florida. 

Unlike Roe I, 43 F.3d at 581, there is absolutely no “post-election 

21 

Petitioners also argue that it is constitutionally impermissible 
for the manual recounts to proceed “selective[ly]” in only certain 
Florida counties. See Siegel Pet. at 18. If Petitioners mean to 
say that every county must count its voters’ votes in precisely 
the same manner as every other county, they are obviously 
wrong. As they do in Florida, different counties within states 
routinely use different equipment and different ballots for the 
conduct of their elections. This obviously does not 
systematically “dilute” the votes of particular counties in any 
way that violates the Equal Protection Clause. 

Petitioners also argue that Florida cannot permit recounts 
limited to certain counties only. But the only relevant case they 
cite, O’Brien v. Skinner, 414 U.S. 524 (1974), involved 
incarcerated prisoners who were denied the right to vote 
altogether based solely on their county of residence. O’Brien 
stands only for the unremarkable proposition that voters cannot 
be denied the right to vote solely because of their county of 
residence. The manual recount provisions of Florida law do not 
work any such type of irrational discrimination: Florida law 
does not specify that recounts should occur only in certain 
counties. Nor were the counties now conducting the manual 
recounts chosen arbitrarily or on any discriminatory basis. 
Florida law provides a right to request a manual recount in any 
county in which a candidate has a reason for believing that such 
a recount might reveal “an error in the vote tabulation which 
could affect the outcome of the election.” Fla. Stat. 
§ 102.166(5). Each candidate and each county was treated 

departure from previous practice” in Florida, and Petitioners cannot show that 
a manual recount to ensure accuracy will cause any vote dilution. The fact 
that different components of the verification process may be activated in 
different counties does nothing to cause votes in other counties to go 
uncounted. The Equal Protection Clause does not require that all votes be 
counted by machines or registered in a certain manner. Petitioners’ Equal 
Protection claims are tantamount to contending that unless each county’s 
marking and counting systems are identical in every way there is violation of 
constitutional rights. 

22 

identically. Each candidate was empowered by statute torequest 
manual recounts in any county. 

Democrats requested manual recounts in several counties in 
which the initial machine recount indicated a problem with the 
machines reading the ballots serious enough that it might affect 
the outcome of the election. Governor Bush made the conscious, 
political choice not to request manual recounts in any county, a 
choice that manifestly does not create a constitutional violation 
conveniently inuring to his benefit. Indeed, as the Florida 
Supreme Court pointedly noted, Governor Bush declined the 
suggestion that the State reopen an opportunity for seeking a 
manual recount in additional counties. See Slip op. at 40 n.56. 

Even if Petitioners had standing to allege a denial of equal 
protection in the failure to conduct a recount in the counties in 
which it was not requested, their equal protection claim would 
be unsupportable in light of the entirely reasonable basis for the 
distinction in treatment between the ballots of the various 
counties. See Anderson v. Celebrezze, 460 U.S. 780, 788 (1983) 
(with respect to regulation of elections, “State’s important 
regulatory interests are generallysufficient to justify reasonable, 
nondiscriminatory restrictions”). This is not a circumstance 
where “the votes of similarly situated voters[are given] different 
effect based on the happenstance of the county or district in 
which those voters live.” Siegel Pet. at 17. The basis for 
determining where recounts are conducted was not arbitrary. 
Where there was a request for a manual recount, it was granted. 
Where there was no request, it was not. Nothing could be more 
reasonable, or less discriminatory.9 

9 Petitioners also allege that the use of different standards in different 
counties for determining which ballots to count also am ounts to 
unconstitutional discrimin ation. Siegel Pet. at 18. Despite repeated 
conclusory allegations to the contrary, all counties are using the same 
standard, the intent of the voter. S ee Fla. Stat. § 102.16 6(7). Ev en if this 
standard were interpreted slightly differently in different counties, Petitioners 
would have no more valid an Equal Protection challenge than they would 

23 

2. Due Process. Petitioners’ due process claim is equally 
insubstantial. They argue that the manual recount statute 
prescribes “no meaningful standards” for “determining whether 
and how” to conduct a manual recount, and that the statute thus 
invades a “liberty or property interest * * * in an arbitrary and 
capricious manner.” Siegel Pet. at 19-20. The premise of this 
argument, that there are no meaningful standards for officials 
conducting recounts, is wrong as a matter of Florida law. 

10 

Petitioners assert that the county canvassing board’s 
discretion to order a manual recount is absolutely “standardless,” 
and that this violates due process. Petitioners do not, however, 
allege either that the decisions to recount were made on any 
arbitrary or improper basis, or that they were denied recounts 
elsewhere on any such basis. Their complaint instead is that the 
mere grant of discretion to the county canvassing commissions 
contained in the statute itself violates the Constitution. See 
Barclay’s Bank PLC v. Franchise Tax Bd., 512 U.S. 298, 315 
(1994) (addressing such a claim). 

To prevail on such a facial challenge, Petitioners would have 
to establish that there are no constitutionally valid applications 
of Florida’s statutory process for manual recounting. See New 
York State Club Ass’n v. City of New York, 487 U.S. 1, 11 
(1988). Petitioners have made no effort to meet this burden, and 
they could not do so if they tried. For example, it could not be 

against different counties’ use of different balloting e quipment. In any ev ent, 
because this standa rd is included in state law, its meaning – and any conflicts 
about it – m ay ultima tely be reso lved by the Florid a Supre me Court. 

10 It must be remem bered tha t Petitioners are not making a delegation 
doctrine challenge to the statute, alleging that there is no “intelligible 
principle” to cabin the administrative agency’s discretion. See Loving v. 
United States, 517 U.S. 748, 771 (1996) (quoting Hampton v. United States, 
276 U.S. 394, 409 (1928)). Nor could they make one here, since the federal 
Constitution does not constrain the state gove rnments with federal separation 
of powers principles as such. See Sweezy v. New Hampshire, 354 U.S. 234, 
255 (19 57) (plu rality op.); id. at 235 (concurring opinion). 

24 

seriously contended that the Florida statute would be 
unconstitutional were a county canvassing board to direct a 
manual recount upon its written, verified conclusion that the 
county’s vote-counting devices had malfunctioned (a 
circumstance that came to pass in Volusia County). See Siegel, 
2000 WL 1687185, at *3. Petitioners’ facial challenge is 
entirely groundless. 

Furthermore, the statute contains standards sufficient to 
defeat any due process challenge. The statute makes clear that 
the purpose for the manual recount is to determine if there is “an 
error in the vote tabulation which could affect the outcome of the 
election.” Fla. Stat. § 102.166(5). This standard provides the 
requisite guidance for the county officials’ exercise of their 
discretion whether or not to order a manual recount. As the 
statute makes clear, the county officials’ discretion is not 
unbounded; rather, they must consider requests for manual 
recounts in light of this standard: The statute explicitly provides 
that any request for a manual recount must “contain a statement 
of the reason the manual recount is being requested.” Id. 
§ 102.166(4)(a). And, if a manual recount is conducted, the 
county canvassing board is required to take action if, but only if, 
“the manual recount indicates an error in the vote tabulation 
which could affect the outcome of the election.” Id. 
§ 102.166(5). 

In light of these provisions, a decision to grant a manual 
recount on some basis other than an allegation related to the 
possibility that there might be an error in the vote tabulation 
would be an abuse of discretion. By the same token, if a 
candidate provided substantial support for such an allegation, but 
the county canvassing board denied his or her request for a 
manual recount, this, too, would amount to an abuse of 
discretion. And, in either case, an aggrieved party might 
properly seek relief in state court. This suffices to demolish any 
claim that the grant of discretion in the statute violates due 
process. See Kolender v. Lawson, 461 U.S. 352, 358 (1983) 
(due process offended, even in context of control of primary 

25 

conduct, only by statutes that provide “no standard” for the 
exercise of official discretion). 

Nor do county officials have standardless discretion in 
determining how to count individual ballots during the manual 
recount. The touchstone under Florida law is the voter’s intent. 
Indeed, Florida statutory law provides that “[n]o vote shall be 
declared invalid or void if there is a clear indication of the 

intent 
of the voter as determined by the canvassing board.” Fla. Stat. 
§ 101.5614(2)(a). The manual recount provision expressly 
provides that “[i]f a counting team is unable to determine a 
voter’s intent in casting a ballot, the ballot shall be presented to 
the county canvassing board for it to determine the voter’s 
intent.” Fla. Stat. § 102.166(7). This is a familiar standard used 
throughout the United States for determining whether and how 
to count ballots. See, e.g., Delahunt v. Johnson, 671 N.E.2d 
1241 (Mass. 1996); Pullen v. Mulligan, 561 N.E.2d 585, 611 (Ill. 
1990); Stapleton v. Board of Elections, 821 F.2d 191 (CA3 
1987); Hickel v. Thomas, 588 P.2d 273, 274 (Alaska 1978); 
Wright v. Gettinger, 428 N.E.2d 1212, 1225 (Ind. 1981). 

Like all issues of compliance with voting laws, the meaning 
of that standard is “ultimately a judicial question.” State ex rel. 
Nuccio v. Williams, 120 So. 310, 314 (Fla. 1929). Thus, there is 
no unacceptable risk that county officials will apply this test 
subjectively, arbitrarily, or inconsistently. And, in any event, 
any objection to the way in which a particular ballot has been 
counted in the application of the intent of the voter standard can 
be brought in state court, and any question about the meaning of 
the standard can ultimately be resolved before the State Supreme 
Court, whose decision will of course have uniform application 
throughout the State. 

3. First Amendment. Nor, for the same reasons, is there 
any substance to Petitioners’ claim of “unconstrained” or 
“standardless” discretion over the implementation of laws that 
touch upon First Amendment rights. Siegel Pet. at 23. As 
Anderson makes clear, regulations of elections are not judged by 

26 

the same standards as regulations that abridge First Amendment 
rights of Free Speech. “[A]s a practical matter, there must be a 
substantial regulation of elections if they are to be fair and 
honest and if some sort of order, rather than chaos, is to 
accompany the democratic processes.” 460 U.S. at 788 (quoting 
Storer v. Brown, 415 U.S. 724, 730 (1974)); see also Burdick v. 
Takushi, 504 U.S. 428, 434 (1992) (“[T]o subject every voting 
regulation to strict scrutiny and to require that the regulation be 
narrowly tailored to advance a compelling state interest * * * 
would tie the hands of States seeking to assure that elections are 
operated equitably and efficiently.”). Petitioners’ citation to City 
of Lakewood v. Plain Dealer, 486 U.S. 750, 763 (1988), see 
Siegel Pet. at 23, is therefore completely inapposite even if City 
of Lakewood’s demand for constraints on discretion in the 
licensing of primary conduct protected by the First Amendment 
could be extrapolated to the completely different context of 
decisionmaking internal to the government in the search for 
accuracy in processing ballots – an extrapolation this Court’s 
precedents do not support. Cf. Bowen v. Roy, 476 U.S. 693, 700 
(1986) (“The Free Exercise Clause affords an individual 
protection from certain forms of governmental compulsion; it 
does not afford an individual a right to dictate the conduct of the 
Government’s internal procedures.”). 

Whatever the standard, Florida’s manual recount provisions 
survive it, because they do not provide Florida officials with 
unconstrained discretion and give such officials no power 
whatever to deny any candidate or voter access to the ballot or 
the franchise. The statutory standards, enforceable by Florida 
courts, are sufficient to defeat Petitioners’ purported First 
Amendment challenge. 

4. Additional Claims In The Siegel Action. Finally, the 
question that Petitioners purport to present in the Siegel matter 
simply cannot be resolved at this stage given the procedural 
posture of the case, which the petition notably fails to address. 
The only issue before the Eleventh Circuit – and therefore the 
only question that could be presented in this Court via the 

27 

Petition for Certiorari Before Judgment – is whether the district 
court properly denied Petitioners’ motion for a preliminary 
injunction on the then-existing record. See SunAmerica Corp. 

v. Sun Life Assur. Co., 77 F.3d 1325, 1333 (CA11) (standard 
governing such an appeal), cert. denied, 519 U.S. 822 (1996); 
see also FTC v. Affordable Media, LLC, 179 F.3d 1228, 1235 
(CA9 1999) (same). Any purely legal claims asserted by 
Petitioners that could even arguably be the basis for injunctive 
relief are meritless for the reasons described above, but 
Petitioners’ fact-based claims regarding the course of the manual 
recounts, on which the petition principally rests, are not even 
properly presented. Just as important is the fact that Petitioners 
nowhere contest the conclusion, supported by the district court’s 
extensive analysis and citation to precedent and the court of 
appeals’ subsequent order denying an injunction, that Petitioners 
are free to pursue their claims in state, not federal, court. 

And, as an entirely separate matter, the Siegel Petitioners’ 
fact-bound claims necessarily depend on non-record assertions. 

11 

Contrary to the Rules of Civil and Appellate Procedure, as well 
as the clear intent of the Rules of the Supreme Court, Petitioners 
apparently attempted (but thus far have failed) to file in the court 
of appeals for use in this Court a barrage of heavily contested 
affidavits untested in the district court or any other forum, that 
assertedly establish their federal law claims. 

12 If this Court were 

11 That the case is factbound alone of course counsels against certiorari, 
particularly given that the question relates to“fact-bound legal consequences 
of contested district court findings not yet rev iewed b y the cou rt of appe als.” 
Kungys v. United States, 485 U.S. 759, 773 n.6 (1988); see also Heck v. 
Humphrey, 512 U.S. 477, 48 0 (1994 ); Hayes v. Florida, 470 U.S. 811, 814 

n.1 (1985); Packwood v. Senate Select Comm. Ethics, 114 S. Ct. 1036, 1037 
(1994) (Rehnquist, C.J., in chambers). 

12 Petitioners’ attempt to purportedly “supplement the record” is 
imperm issible under either FRAP 10(e), Hoover v. Blue Cr oss & B lue Shield , 
855 F.2d 1538, 1543 n.5 (CA11 1988), or the court of appeals’ inherent 
authority to supple ment the record , Dickerson v. Alabama, 667 F.2d 1364, 
1367 (CA11 1982) (limited supplementation permitted only because 

28 

to review those claims, the parties apparently would conduct a 
preliminary injunction hearing as an original matter in this Court 
(battling affidavit-by-affidavit and expert report-by-expert 
report), contrary not only to sound principles of judicial 
administration and settled jurisdictional prerequisites, but also to 
simple common sense. The district court directed Petitioners to 
file their claims in Florida’s state courts and develop a record 
there; Petitioners refused. Alternatively, Petitioners could have 
developed a record in federal district court to support a request 
for a permanent injunction; they refused, abandoned proceedings 
in that forum, and rushed to the Eleventh Circuit instead. The 
only reasonable conclusions from this course of conduct are (i) 
that Petitioners have thus far delayed resolution of their claims 
by consciously avoiding development of their factual claims in 
the appropriate trial courts, all of which have demonstrated a 
near-Herculean willingness to consider and dispose of such 
claims expeditiously, and (ii) that if they wish to pursue such 
allegations, they should do so by returning to those fora and 
pursuing appropriate, expeditious appeals. 

All of the foregoing, of course, also demonstrates that this is 
not one of those very rare cases in which it would be appropriate 
for this Court to grant certiorari prior to the court of appeals 
rendering judgment (particularly given the highly expedited 
briefing schedule already set by that court, see Aaron v. Cooper, 
357 U.S. 566, 567 (1958)). 

substantive issues were not in serious dispute, remand would serve no 
purpose, and p arties wer e clearly on notice of th e eviden ce at trial). 

Moreover, contrary to the impression left by the petition, Petitioners first 
filed the petition in this Court and only later sought (unsuccessfully so far as 
we are aware) to file in the Eleventh Circuit their principal “Motion to 
Supplement” the record . This is nothing more than an effort (i) to mask the 
reality that Petitioners are seeking to introduce a mountain of heavily 
contested factual material in this case for the first time in this Court, and (ii) 
to avoid the “clearly erroneou s” standa rd that pro perly w ould be applied to 
factual findings by the trial cour t in this conte xt, SunAmerica Corp., 77 F.3d 
at 1333. (Well afte r being se rved w ith the petition , Respo ndents’ c ounsel still 
had not been serv ed with c ontents o f putative re cord m aterial.) 

29 

CONCLUSION 

It is precisely in a case such as this, where the Constitution 
specifically delegates authority to the States – and where the 
attention of the Nation is focused on the proceedings – that this 
Court’s obligation is at its peak to preserve the principles of 
federalism that it has articulated and enforced. These petitions 
represent a bald attempt to federalize a state law dispute over 
whether a manual recount is authorized and appropriate. 
Intervention by this Court in this ongoing process would work a 
significant intrusion into a matter – the selection of electors – 
that is both fundamental to state sovereignty and constitutionally 
reserved to the States. 

Because there is nothing even 
approaching a clear showing of a constitutional violation 
requiring redress by this Court, the petitions for writs of 
certiorari should be promptly denied. 

30 

Respectfully submitted, 

Teresa Wynn Roseborough 
Laurence H. Tribe 

John H. Fleming 
(Counsel of Record) 

James A. Orr 

Hauser Hall 420 

David I. Adelman 
1575 Massachusetts Ave. 

999 Peachtree St, NE 
Cambridge, MA 02138 

Atlanta, GA 30309-3996 

Ronald A. Klain 
David Boies 

Andrew J. Pincus 
Boies, Schiller & Flexner 

c/o Gore/Lieberman Recount 80 Business Park Dr., Ste. 110 
430 S. Capitol St. 

Armonk, NY 10504 
Washington, D.C. 20003 
(914) 273-9800 

Peter J. Rubin 

Thomas C. Goldstein 

Georgetown Univ. Law Ctr. 

Jonathan S. Massey 

600 New Jersey Ave., NW 
Amy Howe 

Washington, D.C. 20001 
4607 Asbury Pl., NW 

Washington, D.C. 20016 

Kendall Coffey 
Coffey Diaz & O’Naghten 
2665 South Bayshore Dr. 
Miami, FL 33133