Associated Press
December 9, 2000

Gore Supreme Court Excerpts

Excerpts from the Gore reply to an emergency motion filed Friday to the U.S. Supreme Court by the Bush campaign to halt the manual recounts in Florida.


Applicants' request for a stay makes a remarkable claim: For the ostensible purpose of advancing the interests of voters, applicants urgently request this court to stop the counting of votes. Their surprising assertion is that a candidate for public office can be irreparably harmed by the process of discerning and tabulating the will of the voters. This suggestion is contrary to established law, the U.S. Constitution, and basic principles of democracy.

The application should be denied because applicants have no cognizable legal interest that will be harmed by that count, because a halt in the vote-count process can serve only to delay ultimate resolution of the election contest, and because their underlying legal claims lack merit.

Against this background, it is not surprising that applicants have failed to make out any of the showings necessary to justify such extraordinary relief.


Granting the stay, by contrast, would cause irreparable harm both to respondents and to the public interest. Halting the count of votes until the case has been disposed of by this court would make it virtually impossible for the Florida courts to complete the review of ballots by Dec. 12, gravely handicapping Vice President Gore's prospects of benefitting from the safe harbor provided by 3 U.S.C. Section 5.

As a consequence, Gov. Bush proposes a grossly inequitable asymmetry: Granting a stay of the vote count would have no bearing on his ability to benefit from the safe harbor, but would substantially undercut Vice President Gore's hope of invoking the provision. Denying the stay application, in contrast, would avoid those dangers while imposing no injury on applicants; it would leave the status quo intact, giving this court an opportunity to address the merits.


A stay would also undermine the public interest by imposing enormous burdens and disruption on overworked public officials in Florida. The Florida Supreme Court noted the extraordinary effort made by public servants in the state during the last month (see slip op. 39 n.22), and over the last 18 hours public employees across the state have already made Herculean efforts to complete the expeditious judicial count ordered by the Florida Supreme Court. To suddenly stay those efforts, only to restart them if this court were to deny review or affirm the judgment below, would seriously disserve the public interest.


Even if Gov. Bush is correct in all of his assertions -- and in his further argument that the election contest is somehow ''tainted by the Florida Supreme Court's unauthorized and unlawful rewrite of the legislative structure'' (Stay App. 40), a point that we address below -- a stay would be completely irrelevant to his claimed injury. Gov. Bush can achieve his objective of a conclusive resolution to this dispute by Dec. 12 in only one of two ways: (1) the count can go forward and the courts can enter a final judgment by Dec. 12, or (2) this court can grant review and determine that Gov. Bush is entitled to prevail in the contest by that date. A stay of the count obviously does nothing to advance either of those goals, and thus does literally nothing to avoid the irreparable injury of which Gov. Bush complains.

In this respect, it is important to focus on the particular action ordered by the Florida Supreme Court and the particular relief sought by applicants. That court ordered the review of specified ballots and the adjustment of the certified vote totals in light of that count -- a count the outcome of which will not be known until it is complete. Of course, if that review does shift the vote totals in respondent's favor, the injury to applicants will not be the least bit irreparable:

''There will be time enough for (the applicant) to present his constitutional claim'' to this court ''if and when'' the threatened harm comes about at the entry of final judgment in the contest proceeding. Deaver v. United State s, 483 U.S. 1301, 1303 (1987) (Rehnquist, C.J., in chambers).


Moreover, the Florida Supreme Court has determined that Florida law requires judicial tabulation of uncounted ballots. That determination is entitled to considerable deference by this court. Indeed, it may be disturbed only if this court finds a basis in federal law for doing so. Yet, as we explain below in more detail, the two grounds identified by this court in Bush are manifestly inapplicable here for two separate reasons.

To begin with, this court in Bush took pains to make clear that it was not reaching the federal questions in that case. Surely it would not be appropriate to upset the determination of the Florida Supreme Court by affording interim relief here with the drastic consequences just discussed for the balance of the equities among the parties-- when this court in Bush did not even address the questions presented in that case. Slip op. 6.

Second, recognizing the potential concerns articulated by this court in Bush, the Florida Supreme Court exercised great care to ensure that its decision was firmly rooted both in statutes enacted by the Legislature and in long-standing interpretations of those statutes. See pages 13-18, infra.


Moreover, even if the Florida Supreme Court's authority was thought to stem from the Florida Constitution, not the statute, exercise of that authority still would not violate Article II. The threshold inquiry under Article II is whether the state constitution ''circumscribed the legislature's authority,'' and here the application of the Florida Constitution must be fully consistent with Article II because there is every indication that the Legislature intended to provide appellate review in contest actions, not eliminate it. Even applicants do not try to explain why the Legislature would want to endow a single circuit judge with final authority to decide these cases. Instead, all indications are that the Legislature intended this statute to be governed by the settled principle of Florida law that the state Supreme Court has appellate jurisdiction over all matters determined in the lower courts unless the Legislature precludes such review.... That, of course, is a principle with which the Florida Legislature is quite familiar.


Applicants also argue that Florida cannot treat voters in different counties differently. Stay App. 35. If applicants mean by this to say that every county must use precisely the same methods of tabulation as every other county in the state, 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 plainly does not systematically ''dilute'' the votes of particular counties in any way that violates the Equal Protection Clause. The only decision applicants cite in support of their argument, 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. But O'Brien stands only for the unremarkable proposition that voters cannot be denied the right to vote solely because of their county of residence.

Indeed, even if the standard articulated by the Florida Supreme Court were interpreted slightly differently in different counties, permitting each county's canvassing board to conduct its portion of a statewide manual recount of undervotes would not work any impermissible discrimination. It would simply facilitate the completion of the count.


Indeed, applicants' arguments that the judgment of the Florida Supreme Court violates due process because it is ''in its basic aspect ... flawed'' and permits effectively standardless recounts are nothing more than claims that the contest and recount procedures of Florida's election code, which mirror those that have long existed in one form or another in numerous states, are on their face unconstitutional. There is no way of rationalizing their position with the fact that the manual counting of ballots under the identical standard has been the rule, not the exception, in this country for most of the period since its founding. And their argument would have the logical consequence that the entire election in Florida, in which many ballots have been included in the certified totals to date only after manual counting, would have to be declared invalid.

Copyright 2000 Associated Press. All rights reserved.

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