No. 00-836 and No. 00-837 

IN THE 

Supreme Court of the United States 

GEORGE W. BUSH, 
NED I. SIEGEL, et al., 

Petitioner, Petitioners, 

v. v. 

PALM BEACH COUNTY 
THERESA LEPORE, et al., 

CANVASSING BD., et al. 

Respondents. 

Respondents. 

On Petitions for Writs of Certiorari 
to the United States Court of Appeals for the 
Eleventh Circuit, and the Supreme Court of Florida 

BRIEF IN OPPOSITION TO 
PETITIONS FOR WRITS OF CERTIORARI 

DENISE DYTRYCH 

BRUCE S. ROGOW 

PALM BEACH COUNTY 
Counsel of Record 

ATTORNEY BEVERLY A. POHL 
301 North Olive Avenue 
BRUCE S. ROGOW, P.A. 

Suite 601 

Broward Financial Centre 

West Palm Beach, FL 33401 

500 East Broward Blvd., 1930 

(561) 355-2225 

Fort Lauderdale, FL 33394 

(954) 767-8909 

Counsel for Respondents Theresa LePore, Charles 
Burton, and Carol Roberts, the 
Palm Beach County Canvassing Board 

i 

TABLE OF CONTENTS 

REASONS FOR DENYING THE WRITS ............ 1 

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

TABLE OF AUTHORITIES 

Cases 

Dames v. Moore, 453 U.S. 654 (1981) 
............... 5 

Ex Parte Quirin, 317 U.S. 1 (1942) 

................. 5 

Gerstein v. Pugh, 420 U.S. 103 (1975) ............... 2 

United States v. Nixon, 418 U.S. 683 (1974) 

.......... 5 

Youngstown Sheet & Tube Co. v. Sawyer, 
343 U.S. 579 (1952) ............................ 5 

Statutes and Rules 

Article II, § 1, cl. 2, U.S. Const. 
.................. 5, 6 

Article III, § 2, U.S. Const. 

....................... 2 

3 U.S.C. § 5 ................................... 6 

§ 102.168, Fla. Stat. ............................. 7 

Rule 11, R. S. Ct. ............................... 4 

1 

REASONS FOR DENYING THE WRITS 

The petitions for writs of certiorari in Bush v. Palm 
Beach County Canvassing Board and Siegel v. LePore should 
be denied because (1) at the time of their filing and this brief in 
opposition, neither case is ripe for review; (2) the federal claims 
asserted in the Bush petition were not fairly presented to the 
Supreme Court of Florida; (3) the federal claims presented in 
the Siegel petition do not merit pre-judgment certiorari; (4) the 
lack of an adversarially developed factual record counsels 
against premature judicial action; (5) adequate state remedies 
exist to address any fairly presented and properly litigated 
constitutional claims; and (6) the assertion that the 
“consequences” of these cases “may well include the ascension 
of a President of questionable legitimacy, or a constitutional 
crisis” (Siegel petition, p. 16), is wrong. Among the hallmarks 
of our democratic process is patience. The outcome of this 
presidential election will be known soon, and certiorari review 
should not be predicated on pessimistic predictions of our 
citizens’ resiliency. 

1. Ripeness 

The only actual injury that Governor Bush or the Siegel 
petitioners could suffer would be the certification of Al Gore as 
the winner of the election in Florida. The winner of the Florida 
election will be known on Sunday, November 26, 2000 at 5:00 

p.m., pursuant to the decision of the Supreme Court of Florida. 
(We assume that the Florida Secretary of State’s office will be 
open on Sunday and the Monday morning alternative will not be 
relevant). 

2 

Should Governor Bush be certified as the winner of the 
Florida election, there would be no case or controversy because 
the injury he complains of – the recount – will not have 
adversely affected him. As of the time the respective petitions 
for writs of certiorari were filed on Wednesday evening, 
November 22, 2000, and when this brief in opposition was filed, 
on November 24, 2000, the issues presented were not (and are 
not) ripe for review. 

If, on Sunday November 26, 2000, Governor Bush is 
certified as the winner of the Florida election, the questions 
presented in the petitions will be moot. 

We cannot imagine that 

the unique circumstances bringing us to this juncture would call 
for utilization of the “capable of repetition yet evading review” 
exception to the mootness doctrine. This is not a case in which 
one can say that the questions presented will reoccur, 
necessitating the exercise of jurisdiction despite the lack of an 
actual controversy between the named parties. See Gerstein v. 
Pugh, 420 U.S. 103, 110 n. 11 (1975). 

If, however, Al Gore is certified as the winner of the 
Florida election, the Article III, § 2 case or controversy 
requirements will be present. Nevertheless, even in that case, 
certiorari should be denied. 

2. The Federal Questions Were Not Fairly Presented in 
the Bush Case in the Florida Supreme Court 

The Bush petition asserts that the federal questions were 
fairly presented to the Florida Supreme Court. Bush Petition, 

p. 9. The Gore Brief in Opposition notes its doubt about 

3 

whether that is so. Gore Brief in Opposition, p. 3, n. 1. We 
submit for this Court’s consideration the colloquy between Mr. 
Carvin, counsel for Governor Bush, and a Justice of the 
Supreme Court of Florida relating to the presentation of 
federal questions: 

Q. . . . . so there’s not uniformity even within the 

state as to the type of voting machine that is 
used, or the procedures that are used. 

A. And we have compl–, we have complained 
about the ad hoc nature of the way in which 
votes are tallied in differential counties. That 
is a problem. 

Q. But when you say you have complained about 
it. Where has that been complained about? 

A. I’m sorry. In federal court, Your Honor. And 

I’m not trying to introduce that here. We do 
– 

Q. And why are – Let me ask that question, and 

I’m st– 
Is there a constitutional attack on this 

statute being made? 

A. Well, we don’t think you need reach the 
question, but yes. 

Q. Is that because you’re requesting the federal 
court to reach it and you don’t think that the 
state court has it within its jurisdiction to 

4 

decide whether a statute is being 
constitutionally applied? 

A. Oh no, clearly state courts have that power. 

I’m simply making the point that this is a much 
simpler basis for deciding this case without 
going all the way to the U.S. Constitution, 
which is, state law clearly prohibits the relief 
that Petitioners are requesting because state 
law makes it quite clear that they have no right 
to ignore the mandatory statutory deadline 
imposed upon them by state law. They seek to 
rewrite the statutes. . . . 1 

That colloquy suggests that the federal constitutional 
claims were not pressed upon the Supreme Court of Florida and 
that they were not “fairly presented” within the meaning of that 
term. 

3. The Siegel Case Does Not Present Issues Requiring 
the Extraordinary Exercise of Pre-Judgment 
Certiorari 

Rule 11 of this Court provides that certiorari before 
judgment is appropriate “upon a showing that the case is of 
such imperative public importance as to justify deviation from 

1 

The colloquy is from the taped recording of the oral argument 

in the Florida Supreme Court on Monday, November 20, 2000. 

The Justice 

posing the questions is Justice Pariente. The argument is available for 
viewing on Web page wfsu.org/gavel2gavel/schedule.htm. 

5 

normal appellate practice and to require immediate 
determination in this Court.” 

The Siegel petitioners maintain that this is such a case 
because “[t]he election of our nation’s highest office may turn 
on the Court’s resolution of the issues presented,” and that “this 
Court’s immediate intervention is warranted in order to insure 
that the rule of law is adhered to in this time of great national 
concern.” Siegel Petition, p. 3 (emphasis supplied). 

Given the fact that the United States Court of Appeals 
has expedited the briefing schedule in Siegel, and has tentatively 
set oral argument for November 29, 2000, and that a post- 
judgment decision of that court (if necessary at all considering 
that Sunday’s certification may moot the case), would be 
subject to immediate review by this Court prior to the 
December 12, 2000 date for determining Florida’s electors, it 
would be injudicious to circumvent the established appellate 
processes by granting pre-judgment certiorari. 

Public interest does not equal public crisis. This case 
does not present, at this time, questions of the same magnitude 
as those presented in Dames v. Moore, 453 U.S. 654 (1981); 
United States v. Nixon, 418 U.S. 683 (1974); Youngstown Sheet 
& Tube Co. v. Sawyer, 343 U.S. 579 (1952); Ex Parte Quirin, 
317 U.S. 1 (1942). The availability of the Court of Appeals 
decision-making process, the availability of post-certification 
contest procedures in the Florida courts, which would enable a 
true factual record to be developed, and the presence of 
constitutional and federal statutory mechanisms for resolving 
disputes regarding selection of Florida’s electors (see Art. II, § 

6 

1, cl.2, U.S. Const.; and 3 U.S.C. § 5) render the request to 
grant pre-judgment certiorari improvident. 

4. and 5. 

The Lack of a Factual Record 

and the Availability of State Remedies 

Theresa LePore is the Supervisor of Elections of Palm 
Beach County, Florida. Charles Burton is a County Court 
Judge in Palm Beach County, Florida. Carol Roberts is a 
County Commissioner for Palm Beach County, Florida. 
Together, they comprise the Palm Beach County Canvassing 
Board. That Board has labored for nearly two weeks to 
perform its statutory duty with integrity, grace, and 
non–partisanship. 

Several hundred workers, Democrats and Republicans, 
have labored several thousand hours to recount the ballots to 
determine the intent of the voters in Palm Beach County. The 
work has been tedious, but it has been done carefully and 
openly. Observers from the respective political parties are 
present in the counting room. That room is open to all to view 
through the television cameras that carry the proceedings over 
the County’s television channel. Judge Burton has testified in 
a judicial proceeding (Florida Democratic Party v. Palm Beach 
County Canvassing Board, Fla. 15 
Jud. Circ. Case No. CL- 

th 

0011078-AB) about the process and the methods used to 
discharge his and the Canvassing Board’s statutory obligations 
to the voters of Palm Beach County and the State of Florida. 

When the Palm Beach County Canvassing Board was in 
doubt regarding its duties under Florida law, it initiated the 

7 

original action in the nature of an interpleader in the Supreme 
Court of Florida, which led to the decision in that court that is 
now the subject of the certiorari petition in Bush v. Palm Beach 
County Canvassing Board. 

No factual record, tested by the adversarial process, has 
been developed in this case. The charges and countercharges 
that permeate the submissions of the political candidates should 
not be the basis upon which this Court should decide any of the 
questions presented by either side. 

The Supreme Court of Florida, the United States Court 
of Appeals for the Eleventh Circuit, and the United States 
District Courts for the Southern and Middle Districts of Florida 
have all recognized that Florida Statute § 102.168 provides a 
vehicle for a candidate to, post-certification, initiate an election 
contest that shall be “immediately” heard. Section 102.168(7), 
Fla. Stat. Should either candidate wish to bring such an election 
contest after the Sunday, November 26, 2000 certification of 
the results of the presidential election, that process will permit 
the development of a factual record, tested in the crucible of 
examination and cross-examination, which would be consistent 
with the principle that the adversarial process is the best 
guarantor of reliable judicial decision-making. 

6. There is No Constitutional Crisis 

The utilization of Florida’s post-election statutory 
processes, the Herculean efforts of citizens and the Palm Beach 
County Canvassing Board to accurately count the vote, the 
immediate responsiveness of the Florida and federal courts to 

8 

numerous lawsuits, the extraordinary work of legions of lawyers 
over the past two weeks, and the diligent reporting of all of 
these events by the press, prove that every organ of the body 
politic is alive, well, and working. 

At the heart of the Bush and Siegel petitions for writs of 
certiorari is the notion that unless this Court acts now, the 
legitimacy of the presidency of the United States will be 
compromised. The Palm Beach County Canvassing Board and 
its members, Theresa LePore, Charles Burton and Carol 
Roberts, take a more optimistic view. The breathing room that 
our Constitution and laws give to the honest and unselfish 
efforts of our country’s citizens and elected officials will be 
respected by the nation. The president who is elected via that 
process – be it George W. Bush or Al Gore – will be the 
President of all the people. A familiar homily is “every vote 
counts.” Counting those votes does not create a crisis 
warranting certiorari review. 

CONCLUSION 

For the foregoing reasons, the Petitions for Writ of 
Certiorari should be denied. 

9 

Respectfully submitted, 

BRUCE S. ROGOW 

Counsel of Record 
BEVERLY A. POHL 
BRUCE S. ROGOW, P.A. 
BRUCE S. ROGOW, P.A. 
Broward Financial Centre 
500 East Broward Blvd. 
Suite 1930 
Fort Lauderdale, FL 33394 
(954) 767-8909 

DENISE DYTRYCH 
PALM BEACH COUNTY 
ATTORNEY 

301 North Olive Avenue 
Suite 601 
West Palm Beach, FL 33401 
(561) 355-2225 

Counsel for Respondents 
Theresa LePore, Charles 
Burton, and Carol Roberts, the 
Palm Beach County 

Canvassing Board