Associated Press 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.
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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.
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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.
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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.
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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).
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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.
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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.
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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.
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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.
December 9, 2000
