Down & Dirty (104 page)

and

GEORGE W. BUSH, Nominee of the Republican

Party of the United States for President of the United

States and RICHARD CHENEY, Nominee of the

Republican Party of the United States for

Vice President of the United States,

Appellees,

CASE NO.

ALBERT GORE, Jr., Nominee of the Democratic Party of the United States for President of the United States,
and JOSEPH I. LIEBERMAN, Nominee of the Democratic Party of the United States for Vice President of the United States,

Petitioners,

vs.

KATHERINE HARRIS, as SECRETARY OF STATE STATE OF FLORIDA, and SECRETARY OF AGRICULTURE BOB CRAWFORD, SECRETARY
OF STATE KATHERINE HARRIS
and L. CLAYTON ROBERTS, DIRECTOR, DIVISION OF ELECTIONS, individually and as members of and as THE FLORIDA ELECTIONS CANVASSING
COMMISSION,

Respondents.

BRIEF OF RESPONDENTS ALBERT GORE ET AL.
ON REMAND FROM THE UNITED STATES SUPREME COURT

W. Dexter Douglass

Florida Bar No.0020263

Douglass Law Firm

211 East Call Street

Tallahassee, Florida 32302

Telephone: 850/224-6191

Facsimile: 850/224-3644

Ron Klain

c/o Gore/Lieberman Recount

430 S. Capitol St.

Washington, DC 20003

Telephone: 202/863-8000

Facsimile: 202/863-8603

Andrew Pincus

c/o Gore/Lieberman Recount

430 S. Capitol St.

Washington, DC 20003

Telephone: 202/863-8000

Facsimile: 202/863-8603

Kendall Coffey

Florida Bar No. 259861

2665 S. Bayshore Drive, Suite 200

Miami, FL 33133

Telephone: 305/285-0800

Facsimile: 305/285-0257

David Boies

Boies, Schiller & Flexner LLP

80 Business Park Drive, Suite 110

Armonk, New York 10504

Telephone: 914/273-9800

Facsimile: 914/273-9810

Jeffrey Robinson

Baach Robinson & Lewis

One Thomas Circle, Suite 200

Washington, DC 20003

Telephone: 202/833-7205

Facsimile: 202/466-5738

Mark R. Steinberg

2272 Live Oak Drive West

Los Angeles, CA 90068

Telephone: 323/466-4009

Benedict E. Kuehne

Florida Bar No. 233293

Sale & Kuehne, P.A.

100 S.E. 2d Street, Suite 3550

Miami, FL 33131-2154

Telephone: 305/789-5989

Facsimile: 305/789-5987

John J. Corrigan, Jr.

896 Beacon St.

Boston, MA 02215

Telephone: 617/247-3800

Facsimile: 617/867-9224

Dennis Newman

580 Pearl St.

Reading, MA 01867

Telephone: 781/944-0345

Facsimile: 617-742-6880

COUNSEL FOR ALBERT GORE, JR., AND JOSEPH I. LIEBERMAN

INTRODUCTION

This case is before this Court on remand from the U.S. Supreme Court, which has returned the case for further proceedings
“not inconsistent with this opinion.”
Bush v. Gore,
No. 00-949, Slip op. 13 (U.S. Dec. 12, 2000). An appropriate response to the U.S. Supreme Court’s decision is a clarification
of key points of statutory construction under Florida state law. The U.S. Supreme Court suggested that
this Court
has held that in a Presidential election, Florida law places primacy on trying to meet the so-called “safe harbor” provision
in 3 U.S.C. s5 (which is
never even mentioned
in the Florida statutes) rather than on ensuring the fundamental democratic principle that the will of the people not be
frustrated in accurately ascertaining the outcome of a popular election.
Id.
at 12. Yet this Court has never so held, and Florida’s elections laws cannot remotely bear such a construction. This Court
should respond to the U.S. Supreme Court’s remand with a statement of Florida law that clarifies this point.

The U.S. Supreme Court has identified limited equal protection problems with the recount of undervotes this Court had ordered
to complete a full and fair tally of the votes cast in this election. It has indicated, in particular, that a recount could
be conducted consistent with the Fourteenth Amendment if two conditions were met: (1) adoption of “adequate statewide standards
for determining what is a legal vote”; (2) “practicable procedures to implement them [and] orderly judicial review of any
disputed matters that might arise.”
Id.
at 11. The Court’s opinion also suggests some need to address the question of so-called “overvote” ballots. As discussed
below, these conditions could be met by an immediate order of this Court, and a full and accurate tally of the votes could
be achieved, just as this Court directed as a matter of state law five days ago.

At bottom, the issue here is whether this Court—on a fundamental issue of state law which it holds the definitive authority
to construe—believes that a mere “legislative wish to take advantage of the ‘safe harbor’”
afforded by federal law,
Bush v. Palm Beach County Canvassing Bd.,
No. 00-836, Slip op. 6 (Dec. 4, 2000), trumps the intent of the Legislature, which runs deeply and constantly through Florida’s
elections law:
i.e.,
that “the right of Florida’s citizens to vote and to have elections determined by the will of Florida’s voters [are] important
policy concerns of the Florida Legislature in acting Florida’s elections code.”
Palm Beach County Canvassing Bd. v. Harris,
Nos. SC00-2346,
et al.,
Slip op. 31 (Fla. Dec. 11, 2000). The proposition is particularly unpersuasive now that the Legislature has provided powerful
new evidence in its current special session that it is more concerned about making a selection of electors than in meeting
the supposed December 12th “safe harbor” deadline.

If instead, as we believe, this Court’s recent provision for a “manual recount” of undervotes to determine accurately the
rightful winner of this election should not be “eviscerated and rendered meaningless” by a time limit that is not mandatory,
but should “accommodate the manual recount,”
id.
at 22, then the Florida Supreme Court has the lawful authority, on remand, to correct this misunderstanding about Florida
law, and to order a resumption of the manual recounts, to be completed within 48 hours. Coupled with the few basic steps discussed
below, this Court could exercise such authority properly under the U.S. Supreme Court’s remand, and in so doing, would vindicate
democracy and the rule of law in Florida before the Electoral College convenes on December 18, 2000.

I. THE CLEAR AND CONSISTENT INTENT OF FLORIDA LAW IS THAT ELECTIONS MUST FAITHFULLY REFLECT THE POPULAR WILL.

Three days ago, this Court stressed the importance “to remind ourselves that the Florida Legislature has expressly vested
in the voters of Florida the authority to elect the presidential electors who will ultimately participate in choosing a president.”
Palm Beach County, supra,
Slip op. 31 (citing 103.011, Fla. Stat. (2000)). In that case, the Court held that an arguably mandatory deadline “must be
construed in a flexible manner to accommodate the manual recount” needed to ensure an accurate count of the votes cast in
this very election.
Id.
at 22. In large part, the Court reached this conclusion because of the “important policy concerns of the Florida Legislature
in enacting Florida’s election code” to preserve and protect “the right of Florida’s citizens to vote and to have elections
determined by the will of Florida’s voters.”
Id.
at 31.

Nor, as this Court noted, was this the first time that an apparent deadline in the Florida election laws was extended to accommodate
competing policy concerns. In particular, the overseas ballots must be counted if they are received any time up to ten days
after the election pursuant to an administrative rule that balanced competing concerns of related federal and state laws.
Id.
at 25.

Moreover, this Court has repeatedly stressed that the fundamental purpose of Florida’s election laws is to determine and effectuate
the will of the people.
See, e.g., Harris,
Slip op. 31 (Fla. Dec. 11, 2000) (“Courts must not lose sight of the fundamental purpose of election laws: The laws are intended
to facilitate and safeguard the right of each voter to express his or her will in the context of our representative democracy”);
Chappell v. Martinez,
536 So. 2d 1007, 1008 (Fla. 1988) (the people effecting their will through “balloting, not the hypertechnical compliance
with statutes, is the object of holding elections”);
Boardman v. Esteva,
323 So. 2d 259, 267 (Fla. 1975) (“It is the policy of the law to prevent as far as possible the disenfranchisement of electors
who have cast their ballots in good faith”) (quotation omitted),
cert. denied,
425 U.S. 967 (1976).

Thus, where putative deadlines or matters of administrative convenience would cause legal votes cast not to be counted or
otherwise frustrate the will of the people, they must give way to this paramount concern.
See, e.g., Harris II,
Slip op. 22. The same overriding concern with enfranchising as many citizens as possible is reflected in Florida’s universal
standard for determining the legal validity of ballots that are cast in elections.
See e.g., Darby v. State,
75 So. 411, 412 (Fla. 1917) (ballot marked to plainly indicate voter’s intent should be counted “unless some positive provision
of law would be thereby violated”);
State ex rel. Carpenter v. Barber,
198 So. 49 (Fla. 1940) (vote should be counted “if the will and intention of the voter can be determined”);
Nuccio v. Williams,
120 So. 310 (Fla. 1929). Hence, in a case of allegedly mismarked ballots, this Court held that the Florida courts “should
not frustrate the will of the voters.”
Beckstrom v. Volusia County Canvassing Bd.,
707 So. 2d 720, 726 (Fla. 1998).

Weighing against this bedrock policy of Florida law is not the need to comply with any firm, mandatory deadline, but consideration
of a voluntary choice of whether to strive to meet a provision of federal law that
both parties have agreed
offers only encouragement and some penumbral protection for the electoral votes that Florida submits to Congress. As the
U.S. Supreme Court noted: “The parties before us agree that whatever else may be the effect of [3 U.S.C. §5], it creates a
‘safe harbor’ for a State insofar as
congressional consideration of its electoral votes is concerned.”
Bush I,
Slip op. 6. The parties were unable to find any more meaning or substance in this provision, which has been characterized
as “all carrot and no stick.”
Indeed, this year 21 states did not even bother to submit their paperwork to the National Archives by the prescribed date.
See District, 29 States Submit Electors,
AP Online (Dec. 12, 2000). One reason for this unconcern may be that a successful challenge to a state’s electors requires
the concurrent of both chambers in Congress, which is virtually impossible if different parties control the two chambers when
Congress meets to count the electoral votes, as is true this year.

What is important, however, is that a mere “safe harbor” provision designed to offer encouragement to the states cannot sensibly
be transformed into a deadly vortex that sucks into its maw the rights of voters, the rights of candidates, and all of the
legal and democratic procedures established under Florida state law. Noting that all provisions of the Florida election statutes
must be read
in pari materia,
this Court held that a “comprehensive reading” of the laws “required that there be time for an elections contest pursuant
to section 102.168.”
Harris II,
Slip op. 30 n.22. As a matter of statutory construction, therefore, this Court fashioned a remedial system carefully designed
to safeguard the mandatory judicial contest provided by the Florida Legislature. And this Court recently reiterated the principle
“that the primary consideration in an election contest is whether the will of the people has been effected.”
Perez v. Marti,
2000 Fla. App. LEXIS 11542, at *5 (Fla. 3d DCA Nov. 3, 2000). Once again, there is nothing to commend a reading of Florida
law that would cast overboard the contest proceeding, and with it any hope of an accurate rendition of the people’s will,
merely for an ephemeral date that need not even be followed, has no practical effect in this instance, and in fact is widely
ignored.
See Submit Electors,
AP Online,
supra,
at 2 (“the law does not require penalties if that deadline passes,” but “lists of electors should be sent to the archives
‘as soon as practicable’ on or after Dec. 12”).

The U.S. Supreme Court’s opinion rests on a confused reading of Florida law that this Court should clarify. While, as the
U.S. Supreme Court held, there is doubtlessly a “legislative wish to take advantage of the [Title 3’s] ‘safe harbor’”
Harris.,
Slip op. 6, that “safe harbor” cannot be transformed from a shield for this State into a sword dangling above
this Court.
Moreover, the assertion that “the Florida Supreme Court has said that the Florida Legislature intended to obtain the safe-harbor
benefits of 3 U.S.C. §5,”
Id.,
Slip op. 12., comes from a passage in
Harris II
that does not even
support the statement. Under Florida law, judicial contests, along with the rights of voters and candidates they are designed
to safeguard, cannot be terminated to achieve compliance with an administrative deadline that approximately half the states
honor only in the breach.

On remand, this Court may want to consider the U.S. Supreme Court’s opinion as effectively certifying the following question
to the Florida Supreme Court: “Does Florida law hold that the state
may
select electors by December 12, 2000, or does Florida law hold that the state
shall
select electors by that date?