Ned L. Siegel v. Theresa Lepore

• Court: Court of Appeals for the Eleventh Circuit
• Decided: December 6, 2000
• Docket: 00-15981
• Status: Published

Opinion

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________

No. 00-15981 ________________________

D. C. Docket No. 00-9009

NED L. SIEGEL, GEORGETTE SOSA DOUGLAS, et al.,

Plaintiffs-Appellants,

versus

THERESA LEPORE, CHARLES E. BURTON, et al.,

Defendants-Appellees.

________________________

Appeal from the United States District Court for the Southern District of Florida _________________________ (December 6, 2000)

Before ANDERSON, Chief Judge, TJOFLAT, EDMONDSON, COX, BIRCH, DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

This is an appeal from the denial of a preliminary injunction. The Republican candidates for the offices of President and Vice President of

the United States, along with several registered Florida voters, filed suit in federal

court in Miami, seeking to enjoin four Florida counties from conducting manual

recounts of ballots cast for President of the United States in the November 7, 2000,

election. The district court denied Plaintiffs’ request for preliminary injunctive

relief, and Plaintiffs appeal. For the reasons stated below, we affirm.

I.

On November 7, 2000, Florida voters cast ballots for several offices,

including votes for the twenty-five electors for President and Vice-President of the

United States. The following day, the Division of Elections for the State of Florida

reported that the Republican Party presidential ticket received 2,909,135 votes, and

the Democratic Party presidential ticket received 2,907,351 votes, for a margin of

difference of 1,784, or 0.0299% of the total Florida vote.

Under Florida law, county canvassing boards are responsible for

determining the number of votes cast for each candidate. See Fla. Stat. § 102.141.

If a candidate for office is defeated by one-half of one percent or less of the votes

cast for such office, the canvassing board must order a recount. See id. §

102.141(4). Pursuant to this statute, because the Presidential vote returns reflected

that the Democratic ticket was defeated by less than one-half of one percent, the

2 canvassing boards conducted automatic recounts of the votes. After the automatic

recounts, the Republican ticket retained the majority of votes, although by a

slimmer margin.

Under Florida law, a manual recount may be requested by any candidate

whose name appeared on the ballot, a political committee that supports or opposes

an issue that appeared on the ballot, or a political party whose candidates’ names

appeared on the ballot. See Fla. Stat. § 102.166(4)(a). Such a request must be

filed with the canvassing board within 72 hours after midnight of the date the

election was held, or before the canvassing board has certified the challenged

results, whichever is later. See id. § 102.166(4)(b). The canvassing board may,

but is not required to, grant the request. See id. § 102.166(4)(c); Broward County

Canvassing Bd. v. Hogan, 607 So. 2d 508, 510 (Fla. Dist. Ct. App. 1992) (“The

statute clearly leaves the decision whether or not to hold a manual recount of the

votes as a matter to be decided within the discretion of the canvassing board.”).

The statutory manual recount provision applies to all Florida counties. Therefore,

the procedure for requesting a manual recount is the same in all counties, although

the decision of whether to conduct a manual recount would, of course, be made

separately by each county’s canvassing board.

3 Once authorized by a county canvassing board, a manual recount must

include “at least three precincts and at least 1 percent of the total votes cast for

such candidate.” Id. § 102.166(4)(d). The person requesting the recount chooses

three precincts to be recounted, and, if other precincts are recounted, the

canvassing board chooses the additional precincts. See id. If the results of the

manual recount indicate “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.” Id. § 102.166(5).

Florida law specifies the procedures for a manual recount. Section

102.166(7) of the Florida Statutes provides that:

(a) The county canvassing board shall appoint as many counting teams of at least two electors as is necessary to manually recount the ballots. A counting team must have, when possible, members of at least two political parties. A candidate involved in the race shall not be a member of the counting team.

(b) If 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.

In this case, the Florida Democratic Party filed requests for manual recounts

in Broward, Miami-Dade, Palm Beach, and Volusia Counties on November 9,

4 2000, within the 72-hour statutory deadline. The stated reasons for the requests

included the closeness of the statewide race and a concern that the vote totals might

not reflect the true will of Florida voters. The apparent practical effect of a manual

recount is that some ballots which were unreadable by machine due, for example,

to voters’ failure to mark or punch the ballots in a machine-legible fashion, might

be read by human counters; and these votes could be added to the totals for each

candidate.

II.

On November 11, 2000, registered voters Ned L. Siegel from Palm Beach

County, Georgette Sosa Douglas from Broward County, Gonzalo Dorta from

Miami-Dade County, Carretta King Butler from Volusia County, Dalton Bray from

Clay County, James S. Higgins from Martin County, and Roger D. Coverly from

Seminole County, along with the Republican candidates for President and Vice-

President, George W. Bush and Richard Cheney (collectively “Plaintiffs”), filed a

Complaint and a Motion for a Temporary Restraining Order and Preliminary

Injunction in the district court for the Southern District of Florida. Plaintiffs sued

members of the county canvassing boards of Volusia, Palm Beach, Broward, and

5 Miami-Dade Counties.1 Plaintiffs’ Complaint alleged that the manual recounts

violate the Fourteenth Amendment’s guarantees of due process and equal

protection, and deny and burden the First Amendment’s protection of votes and

political speech.

Plaintiffs’ prayer for relief in their Complaint included the following:

(a) Declaring that Defendants may not subject any vote totals to manual recounts;

(b) In the alternative, declaring that Florida Statute § 102.166(4) is unconstitutional to the extent it does not limit the discretion of Defendants to conduct manual recounts in this case;

(c) Declaring that Defendants should certify and release forthwith all vote totals that have been the subject of two vote counts since November 7, 2000;

(d) Declaring that the form of ballot used in Palm Beach County was valid;

(e) Declaring that any ballot punched or marked for two Presidential candidates not previously counted cannot now be counted;

(f) Consolidating or removing to this Court any and all actions filed across the State of Florida purporting to challenge the results of the November 7 statewide election or otherwise delay the certification and release of those results; and

1 There are no state defendants in this case. In addition to the parties mentioned above, the district court granted a motion by the Florida Democratic Party to intervene, and the Florida Democratic Party is an intervenor-appellee in this case on appeal. The Attorney General also appeared as an amicus at oral argument to defend the constitutionality of the statute.

6 (g) Granting such other and further relief as this Court shall deem just and proper.

(Complaint at 16-17.)

The Motion for a Temporary Restraining Order and Preliminary Injunction

which Plaintiffs filed with their Complaint asked, inter alia, that the district court

prohibit the county canvassing boards from proceeding with manual recounts of

the November 7th election results. Like the Complaint, this motion contended that

the manual recounts violate the First Amendment and the Due Process and Equal

Protection Clauses of the Fourteenth Amendment.

The district court heard oral argument on the motion on November 13, 2000,

and Plaintiffs’ request for a preliminary injunction was denied. On November 14,

2000, Plaintiffs filed a notice of appeal.2

During the pendency of this appeal, several Florida cases were appealed to

the Florida Supreme Court. In these cases, some plaintiffs challenged Florida

Secretary of State Katherine Harris’s decision to refuse to accept the results of

manual recounts submitted by county canvassing boards after the statutory

deadline of 5:00 p.m. on November 14, 2000. On November 21, 2000, in the

2 The documents in this case were lodged in this Court as they were filed in the district court. Pursuant to Federal Rule of Appellate Procedure 35, this Court ordered that this case be heard initially en banc. See Hunter v. United States, 101 F.3d 1565, 1568 (11th Cir. 1996) (en banc); Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc).

7 consolidated cases of Palm Beach County Canvassing Bd. v. Harris, Volusia

County Canvassing Bd. v. Harris, and Florida Democratic Party v. Harris, the

Supreme Court of Florida decided that Florida Secretary of State Harris must

accept the late-reported results of manual recounts from these counties submitted

by the evening of November 26, 2000. The Florida Supreme Court expressly

stated that neither party had raised as an issue on appeal the constitutionality of

Florida’s election laws, and it did not address federal constitutional issues in its

opinion.3

On appeal, Plaintiffs filed an Emergency Motion for an Injunction Pending

Appeal, asking this Court to prohibit the county canvassing board Defendants from

proceeding with manual ballot recounts. This motion was denied without prejudice

on November 17, 2000. Among other things, we then said:

Both the Constitution of the United States and 3 U.S.C. § 5 indicate that states have the primary authority to determine the manner of appointing Presidential Electors and to resolve most controversies concerning the appointment of Electors. The case law is to the same effect, although, of course, federal courts may act to preserve and decide claims of violations of the Constitution of the United States in certain circumstances, especially where a state remedy is inadequate. In this case, the State of Florida has enacted

3 The United States Supreme Court recently vacated the Florida Supreme Court’s opinion. See Bush v. Palm Beach Canv. Bd., No. 00-836 (U.S. Dec. 4, 2000).

8 detailed election dispute procedures. These procedures have been invoked, and are in the process of being implemented, both in the form of administrative actions by state officials and in the form of actions in state courts, including the Supreme Court of Florida. It has been represented to us that the state courts will address and resolve any necessary federal constitutional issues presented to them, including the issues raised by Plaintiffs in this case. If so, then state procedures are not in any way inadequate to preserve for ultimate review in the United States Supreme Court any federal questions arising out of such orders.

Order Denying Plaintiffs’ Emergency Motion for Injunction Pending Appeal,

Touchston v. McDermott, No. 00-15985 (Nov. 17, 2000) (citations omitted).

Plaintiffs moved this Court to expedite the underlying appeal, which motion

we granted. This case is now before us on the appeal of the district court’s denial

of Plaintiffs’ motion for a preliminary injunction. Plaintiffs ask this Court either to

reverse the district court’s decision, enjoin the canvassing board Defendants from

conducting manual recounts or certifying election results that include manual

recounts, or order the deletion and/or non-inclusion of final vote tabulations that

reflect the results of manual recounts.4

4 Plaintiffs’ request on appeal is thus broader than their request for an injunction pending appeal, which asked only that we halt manual recounts then underway. To the extent that Plaintiffs’ request on appeal represents a petition for permanent relief, we must decline to convert this appeal of a denial of a preliminary injunction into a final hearing on the merits of Plaintiffs’ claims. Our review of such a case is normally limited to whether the district court abused its discretion; however, we recognize that an appellate court under some circumstances may decide the merits of a case in connection with its review of a denial of a preliminary

9 This Court has carefully considered Plaintiffs’ appeal, as well as the other

documents filed, and has conferred en banc on numerous occasions. We heard oral

injunction. See Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 755-56, 106 S. Ct. 2169, 2176 (1986).

In Thornburgh, the Supreme Court said that “if a district court’s ruling rests solely on a premise as to the applicable rule of law, and the facts are established or of no controlling relevance, that ruling may be reviewed even though the appeal is from the entry of a preliminary injunction.” Id. at 757, 106 S. Ct. at 2177. The Supreme Court affirmed the appellate court’s decision to review the merits, rather than merely determine whether the district court had abused its discretion by entering a preliminary injunction, where it had the benefit of “‘an unusually complete factual and legal presentation from which to address the important constitutional issues at stake.’” Id. (quoting Thornburgh v. American College of Obstetricians & Gynecologists, 737 F.2d 283, 290 (3d Cir. 1984)). Additionally, the Supreme Court observed that appellate review was aided by three recent decisions from the same circuit on the constitutional issues. See id. at 753-54, 757, 106 S. Ct. at 2174-75, 2177. Thus, it stated that “when the unconstitutionality of the particular state action under challenge is clear,” an appellate court need not abstain from addressing the merits. Id. at 756, 106 S. Ct. at 2176. In so holding, however, the Supreme Court noted that “[a] different situation is presented, of course, when there is no disagreement as to the law, but the probability of success on the merits depends on facts that are likely to emerge at trial.” Id. at 757 n.8, 106 S. Ct. at 2177 n.8 (citations omitted).

This case clearly falls within this latter category, and thus represents the very situation in which the Supreme Court held that appellate review was not appropriate. The answer to the constitutional questions is anything but clear. And, in stark contrast to Thornburgh, we have before us a factual record that is largely incomplete and vigorously disputed. The district court based its ruling on Plaintiffs’ motion for a preliminary injunction solely on limited affidavits and the submission of few documents, including news media reports. Moreover, there was no discovery in this case, much less a trial or a plenary hearing, and none of the scant evidence presented to the district court was tested by the adversarial process of cross-examination. The controlling relevant facts are fervently contested by the parties. These evidentiary infirmities are especially problematic given that Plaintiffs’ major claims are as-applied challenges to the Florida statutes, arguments the validity of which depends upon the development of a complete evidentiary record. Mere expediency does not warrant this Court reaching the merits of Plaintiffs’ claims in the absence of the necessary evidence by which to do so. Therefore, applying the reasoning of Thornburgh, the circumstances of this case as it currently stands require us to deny their request.

10 argument on December 5, 2000. Recognizing the importance of a resolution to this

case, a prompt decision on the appeal is required.

III.

We first consider whether Rooker-Feldman bars our exercise of subject

matter jurisdiction over Plaintiffs’ claims.

The Rooker-Feldman doctrine provides that federal courts, other than the

United States Supreme Court, have no authority to review the final judgments of

state courts. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462,

486, 103 S. Ct. 1303, 1317 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413,

415-16, 44 S. Ct. 149, 150 (1923). The doctrine extends not only to constitutional

claims presented or adjudicated by a state court, but also to claims that are

“inextricably intertwined” with a state court judgment. Feldman, 460 U.S. at 482

n.16, 103 S. Ct. at 1315 n.16; Dale v. Moore, 121 F.3d 624, 626 (11th Cir. 1997).

A federal claim is inextricably intertwined with a state court judgment “if the

federal claim succeeds only to the extent that the state court wrongly decided the

issues before it.” Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 25, 107 S. Ct. 1519,

1533 (1987) (Marshall, J., concurring).

In light of the United States Supreme Court’s decision vacating the Florida

Supreme Court’s November 21, 2000, decision, it is unclear at the moment that any

11 final judgments giving rise to Rooker-Feldman concerns now exist. See Bush v.

Palm Beach County Canv. Bd., No. 00-836 (U.S. Dec. 4, 2000). No party has

called to our attention any final judgments in the Florida state courts upon which a

Rooker-Feldman bar reasonably could be based as to these Plaintiffs.5 Thus, we

conclude that Rooker-Feldman does not bar Plaintiffs from bringing these

particular constitutional challenges to the implementation of Florida’s manual

recount provision.

Defendants Broward, Palm Beach, and Volusia County Canvassing Boards

also argue that this case is moot because the manual recounts have been completed

and the boards have filed their certified vote tabulations with the Elections

Canvassing Commission. However, we conclude that this case is not moot.

5 For similar reasons, we conclude that neither res judicata nor collateral estoppel bars our consideration of the issue of the constitutionality of Florida’s statutory manual recount provision. We look to Florida law to determine the application of these preclusive doctrines. See Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81, 104 S. Ct. 892, 896 (1984) (holding that under the Full Faith and Credit Act, a federal court must give the same preclusive effect to a state court judgment as another court of that state would give). Florida adheres to the traditional requirement of mutuality of parties in its application of res judicata. See Albrecht v. State of Florida, 444 So. 2d 8, 11 (Fla. 1984); State Street Bank & Trust Co. v. Badra, 765 So. 2d 251, 253 (Fla. Dist. Ct. App. 2000) (citing Youngblood v. Taylor, 89 So. 2d 503, 505 (Fla. 1956)). The parties to this case are not the same parties that appeared before the Florida Supreme Court. Florida similarly requires mutuality of parties in the application of collateral estoppel. See Stogniew v. McQueen, 656 So. 2d 917, 919-20 (Fla. 1995). Further, the doctrine of collateral estoppel bars identical parties from relitigating only those issues that have previously been decided between them. See Mobil Oil Corp. v. Shevin, 354 So.2d 372, 374 (Fla. 1977). Where, as here, the issue in dispute has not been fully litigated, the doctrine is inapplicable. We therefore conclude that neither res judicata nor collateral estoppel bars our review of the constitutionality of Florida’s manual recount provision.

12 Article III of the Constitution limits federal court jurisdiction to live cases or

controversies, and the “case-or-controversy” requirement “subsists through all

stages of federal judicial proceedings, trial and appellate.” Lewis v. Continental

Bank Corp., 494 U.S. 472, 477, 110 S. Ct. 1249, 1253 (1990). This Court has held

that “[a] claim for injunctive relief may become moot if: (1) it can be said with

assurance that there is no reasonable expectation that the alleged violation will

recur and (2) interim relief or events have completely and irrevocably eradicated

the effects of the alleged violation.” Reich v. Occupational Safety & Health

Review Comm’n, 102 F.3d 1200, 1201 (11th Cir. 1997).

We conclude that neither of these elements is satisfied in this case. The

Democratic candidate, Vice President Gore, and others are currently contesting the

election results in various lawsuits in numerous Florida state courts. There are still

manual recount votes from at least Volusia and Broward Counties in the November

26th official election results of the Florida Secretary of State.6 In view of the

complex and ever-shifting circumstances of the case, we cannot say with any

confidence that no live controversy is before us.7

6 There may also be some manual recount votes in those results from a number of other Florida counties, such as Seminole, Gadsden, and Polk. 7 Read broadly, Plaintiffs’ request for injunctive relief can be interpreted as a request that Defendants be ordered to certify only those vote totals that resulted from machine recounts. Because Florida Secretary of State Harris has certified the election results and because

13 IV.

Defendants argue that we should abstain from hearing this case under

Burford v. Sun Oil Co., 319 U.S. 315, 63 S. Ct. 1098 (1943), or under Railroad

Comm’n of Tex. v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643 (1941). We conclude

that abstention is not appropriate in this case.

The Burford abstention doctrine allows a federal court to dismiss a case only

if it presents difficult questions of state law bearing on policy problems of

substantial public import whose importance transcends the result in the case then at

bar, or if its adjudication in a federal forum would disrupt state efforts to establish

a coherent policy with respect to a matter of substantial public concern. See Boyes

v. Shell Oil Prods. Co., 199 F.3d 1260, 1265 (11th Cir. 2000) (citing New Orleans

Pub. Serv., Inc. v. Council of the City of New Orleans, 491 U.S. 350, 361, 109 S.

Ct. 2506, 2514 (1989)). A central purpose furthered by Burford abstention is to

protect complex state administrative processes from undue federal interference.

See New Orleans Pub. Serv., 491 U.S. at 362, 109 S. Ct. at 2515. The case before

us does not threaten to undermine all or a substantial part of Florida’s process of

she is not yet a party to this appeal, we note that there is some question whether this Court could order the requested relief once the Defendant canvassing boards have completed their manual recounts and have certified their vote totals to the state Elections Canvassing Commission. However, because we deny Plaintiffs’ motion for a preliminary injunction, we need not address this issue.

14 conducting elections and resolving election disputes. Rather, Plaintiffs’ claims in

this case target certain discrete practices set forth in a particular state statute.

Further, Burford is implicated when federal interference would disrupt a state’s

effort, through its administrative agencies, to achieve uniformity and consistency in

addressing a problem. See, e.g., Quackenbush v. Allstate Ins. Co., 517 U.S. 706,

727-28, 116 S. Ct. 1712, 1727 (1996). This case does not threaten to undermine

Florida’s uniform approach to manual recounts; indeed, the crux of Plaintiffs’

complaint is the absence of strict and uniform standards for initiating or conducting

such recounts. Finally, we note that Burford abstention represents an

“extraordinary and narrow exception to the duty of a District Court to adjudicate a

controversy properly before it.” County of Allegheny v. Frank Mashuda Co., 360

U.S. 185, 188, 79 S. Ct. 1060, 1063 (1959). We do not believe that the concerns

raised by Defendants in this case justify our abstention under this narrow doctrine.

Perhaps the most persuasive justification for abstention advanced by

Defendants is based on Pullman, 312 U.S. 496, 61 S. Ct. 643; however, we

conclude that abstention under this doctrine would not be appropriate. Under the

Pullman abstention doctrine, a federal court will defer to “state court resolution of

underlying issues of state law.” Harman v. Forssenius, 380 U.S. 528, 534, 85 S.

Ct. 1177, 1181 (1965). Two elements must be met for Pullman abstention to

15 apply: (1) the case must present an unsettled question of state law, and (2) the

question of state law must be dispositive of the case or would materially alter the

constitutional question presented. See id. at 534, 85 S. Ct. at 1182. The purpose of

Pullman abstention is to “avoid unnecessary friction in federal-state functions,

interference with important state functions, tentative decisions on questions of state

law, and premature constitutional adjudication.” Id. Because abstention is

discretionary, it is only appropriate when the question of state law can be fairly

interpreted to avoid adjudication of the constitutional question. See id. at 535, 85

S. Ct. at 1182.

Plaintiffs claim that Florida’s manual recount provision is unconstitutional

because the statute does not provide sufficient standards to guide the discretion of

county canvassing boards in granting a request for a manual recount or in

conducting such a recount. There has been no suggestion by Defendants that the

statute is appropriately subject to a more limited construction than the statute itself

indicates.

Our conclusion that abstention is inappropriate is strengthened by the fact

that Plaintiffs allege a constitutional violation of their voting rights. In considering

abstention, we must take into account the nature of the controversy and the

importance of the right allegedly impaired. See Edwards v. Sammons, 437 F.2d

16 1240, 1243 (5th Cir. 1971) (citing, as examples of cases where the Supreme Court

referred to the nature of the right involved in upholding a refusal to abstain,

Harman, 380 U.S. at 537, 85 S. Ct. at 1183 (voting rights); Griffin v. County Sch.

Bd. of Prince Edward County, 377 U.S. 218, 84 S. Ct. 1226 (1964) (school

desegregation); Baggett v. Bullitt, 377 U.S. 360, 84 S. Ct. 1316 (1964) (First

Amendment rights)). Our cases have held that voting rights cases are particularly

inappropriate for abstention. See Duncan v. Poythress, 657 F.2d 691, 697 (5th Cir.

Unit B 1981) (stating that while an alleged denial of voting rights does not

preclude federal abstention, Supreme Court precedent indicates that a federal court

should be reluctant to abstain when voting rights are at stake); Edwards, 437 F.2d

at 1244 (stating the general rule that abstention is not appropriate “in cases

involving such a strong national interest as the right to vote”). In light of this

precedent, the importance of the rights asserted by Plaintiffs counsels against our

abstention in this case; although, as discussed below, we are mindful of the limited

role of the federal courts in assessing a state’s electoral process.

We therefore conclude that abstention is not appropriate.

V.

This is an appeal from the denial of a preliminary injunction. Plaintiffs state

two main claims. First, Plaintiffs argue that Florida’s manual recount scheme, and

17 particularly Fla. Stat. § 102.166(7), is unconstitutional because it contains no

standards for when a ballot not read by the machine may be counted. They

describe their claim as an “as-applied” challenge based on the allegedly

standardless and partisan application of the (allegedly facially standardless) statute

in Palm Beach, Broward, Dade, and Volusia Counties. Plaintiffs’ chief objection

is that different criteria used by different counties, or by different election officials

within a county, may mean that the same ballot rejected in one instance is accepted

in another instance, or vice versa. They contend that such unequal treatment

violates the Equal Protection Clause and that the lack of standards by itself violates

the Due Process Clause. Plaintiffs also contend that the absence of statutory

standards for when a manual recount occurs permits arbitrary and partisan

decision-making, exacerbates the potential for unequal treatment of ballots, and

thus warrants a federal court’s intervention.

Second, Plaintiffs assert that they are denied due process and equal

protection because, under Fla. Stat. § 102.166(4), ballots in one county may be

manually recounted while ballots in another county are not. They contend that, as

a result, similarly situated voters will not be treated similarly based purely on the

fortuity of where they reside; a ballot that would be counted in one county pursuant

18 to a manual recount may not be counted elsewhere because that voter’s county did

not conduct such a recount.

Defendants, as well as the Intervenor-Appellee, dispute all of these

contentions. They argue that Florida law does contain constitutionally adequate

standards for evaluating when a manual recount should occur and for evaluating

the ballots during such a recount, and that Plaintiffs’ as-applied claim fails because

no record evidence shows that those standards have been employed in an arbitrary

or partisan fashion. They also maintain that allowing decisions to be made on

whether a manual recount occurs on a county-by-county basis is reasonable and

consistent with the approach taken by other states, and that in any event no

constitutional violation is present for many reasons, such as there is no record

evidence indicating that a recount request was made and accepted in one Florida

county while a request made in a different county was rejected. More generally,

they raise a series of arguments for the proposition that Plaintiffs’ challenge to

Florida’s election laws does not rise to a level that would warrant federal

intervention.

The district court, weighing the parties’ arguments, determined that

Plaintiffs had failed to show a substantial likelihood of success on the merits. We

have reviewed the competing arguments. To some extent, our consideration of

19 these arguments is shaped by the practical difficulties of marshaling an adequate

record when ongoing and unexpected events continually alter the key facts. In this

case, only limited affidavits and a few documents were introduced into the record

before the district court. No formal discovery has been undertaken, and, as yet, no

evidentiary hearing has been held in this case. Many highly material allegations of

facts are vigorously contested. Preliminary injunction motions are often, by

necessity, litigated on an undeveloped record. But an undeveloped record not only

makes it harder for a plaintiff to meet his burden of proof, it also cautions against

an appellate court setting aside the district court’s exercise of its discretion.

However, we need not decide the merits of the case to resolve this appeal,

and therefore, do not decide them at this time. The district court rejected Plaintiffs’

preliminary injunction motion not only because it found no likelihood of success

on the merits, but also on the separate and independent ground that Plaintiffs had

failed to show that irreparable injury would result if no injunction were issued. We

may reverse the district court’s order only if there was a clear abuse of discretion.

See, e.g., Carillon Importers, Ltd. v. Frank Pesce Int’l Group Ltd., 112 F.3d 1125,

1126 (11th Cir. 1997) (per curiam); Revette v. International Ass’n of Bridge,

Structural & Ornamental Iron Workers, 740 F.2d 892, 893 (11th Cir. 1984) (“The

district court’s decision will not be reversed unless there is a clear abuse of

20 discretion.”); Harris Corp. v. National Iranian Radio & Television, 691 F.2d 1344,

1354 (11th Cir. 1982). Because Plaintiffs still have not shown irreparable injury,

let alone that the district court clearly abused its discretion in finding no irreparable

injury on the record then before it, the denial of the preliminary injunction must be

affirmed on that basis alone.

A district court may grant injunctive relief only if the moving party shows

that: (1) it has a substantial likelihood of success on the merits; (2) irreparable

injury will be suffered unless the injunction issues; (3) the threatened injury to the

movant outweighs whatever damage the proposed injunction may cause the

opposing party; and (4) if issued, the injunction would not be adverse to the public

interest. See McDonald’s Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir.

1998) (citing All Care Nursing Serv., Inc. v. Bethesda Mem’l Hosp., Inc., 887 F.2d

1535, 1537 (11th Cir. 1989)). In this Circuit, “[a] preliminary injunction is an

extraordinary and drastic remedy not to be granted unless the movant clearly

established the ‘burden of persuasion’” as to each of the four prerequisites. Id.

(internal citation omitted); see also Texas v. Seatrain Int’l, S.A., 518 F.2d 175, 179

21 (5th Cir. 1975) (grant of preliminary injunction “is the exception rather than the

rule,” and plaintiff must clearly carry the burden of persuasion).8

A showing of irreparable injury is “‘the sine qua non of injunctive relief.’”

Northeastern Fla. Chapter of the Ass’n of Gen. Contractors v. City of Jacksonville,

896 F.2d 1283, 1285 (11th Cir. 1990) (quoting Frejlach v. Butler, 573 F.2d 1026,

1027 (8th Cir. 1978)); see also Doran v. Salem Inn, Inc., 422 U.S. 922, 931, 95 S.

Ct. 2561, 2568 (1975) (“The traditional standard for granting a preliminary

injunction requires the plaintiff to show that in the absence of its issuance he will

suffer irreparable injury.”); Robertson, 147 F.3d at 1306 (plaintiff must show

“irreparable injury will be suffered”); Harris Corp., 691 F.2d at 1356-57

(concluding that district court “did not abuse its discretion in finding a substantial

likelihood of irreparable injury to [the plaintiff] absent an injunction”); Deerfield

Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. 1981) (to be

granted a preliminary injunction plaintiffs must show “a substantial likelihood that

they would suffer irreparable injury”).9

8 The Eleventh Circuit, in Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981. 9 We have occasionally spoken of requiring a substantial “threat” of irreparable harm. See Haitian Refugee Ctr., Inc. v. Baker, 949 F.2d 1109, 1110 (11th Cir. 1991) (per curiam). We do not read those opinions, however, as intending to relax the traditional standard - - stated by the Supreme Court -- that a plaintiff must show either that he will suffer, or faces a substantial likelihood that he will suffer, irreparable injury. See e.g., Doran, 422 U.S. at 931, 95

22 Significantly, even if Plaintiffs establish a likelihood of success on the

merits, the absence of a substantial likelihood of irreparable injury would, standing

alone, make preliminary injunctive relief improper. See Snook v. Trust Co. of

Georgia Bank of Savannah, N.A., 909 F.2d 480, 486 (11th Cir. 1990) (affirming

denial of preliminary injunction even though plaintiff established likelihood of

prevailing because plaintiff failed to meet burden of proving irreparable injury);

City of Jacksonville, 896 F.2d at 1285 (reversing preliminary injunction based

solely on plaintiff’s failure to show irreparable injury); Flowers Indus. v. FTC, 849

F.2d 551, 552 (11th Cir. 1988) (same); United States v. Lambert, 695 F.2d 536,

540 (11th Cir. 1983) (affirming denial of preliminary injunction and stating that a

plaintiff’s “success in establishing a likelihood it will prevail on the merits does not

obviate the necessity to show irreparable harm”). As we have emphasized on

many occasions, the asserted irreparable injury “must be neither remote nor

speculative, but actual and imminent.” City of Jacksonville, 896 F.2d at 1285

(quoting Tucker Anthony Realty Corop. v. Schlesinger, 888 F.2d 969, 973 (2d Cir.

1989)); accord, Chacon v. Granata, 515 F.2d 922, 925 (5th Cir. 1975) (“An

S. Ct. at 2568. In any event, the outcome is the same even using substantial “threat” as the benchmark.

23 injunction is appropriate only if the anticipated injury is imminent and

irreparable.”).

At this time, Plaintiffs cannot demonstrate a threat of continuing irreparable

harm. At the moment, the candidate Plaintiffs (Governor Bush and Secretary

Cheney) are suffering no serious harm, let alone irreparable harm, because they

have been certified as the winners of Florida’s electoral votes notwithstanding the

inclusion of manually recounted ballots. Moreover, even if manual recounts were

to resume pursuant to a state court order,10 it is wholly speculative as to whether

the results of those recounts may eventually place Vice President Gore ahead. See

Church v. City of Huntsville, 30 F.3d 1332, 1337 (11th Cir. 1994) (“a party has

standing to seek injunctive relief only if the party alleges, and ultimately proves, a

real and immediate -- as opposed to a merely conjectural or hypothetical -- threat

of future injury”). At the moment it also remains speculative whether such an

order may be forthcoming. Indeed, the Florida Circuit Court in Leon County

considering the Vice President’s contest to the final certification has now denied

the Vice President’s request for resumption of manual recounts as part of its

broader judgment in the entire contest action. This development reinforces that the

10 This case involves discretionary recounts ordered by county canvassing boards. A recount ordered by a state court under state law in a contest proceeding might be a substantially different case, raising different legal issues.

24 candidate Plaintiffs are suffering no serious harm. Moreover, as noted earlier, the

United States Supreme Court has now vacated the Florida Supreme Court’s

decision, raising still further doubt about the likelihood of any substantial injury.

Nor are the voter Plaintiffs (all of whom allege that they voted for Governor

Bush and Secretary Cheney) suffering serious harm or facing imminent injury. No

voter Plaintiff claims that in this election he was prevented from registering to

vote, prevented from voting or prevented from voting for the candidate of his

choice. Nor does any voter claim that his vote was rejected or not counted. The

cases called to our attention by the parties that have warranted immediate

injunctive relief have involved these kind of circumstances. Even assuming

Plaintiffs can assert some kind of injury, they have not shown the kind of serious

and immediate injury that demands the extraordinary relief of a preliminary

injunction. Additionally, any alleged voter injury, unrelated to the outcome of the

election certified by the Florida Secretary of State, can be adequately remedied

later. And although these Plaintiffs assert that Florida’s existing manual recount

scheme must be invalidated for now and in the future, no one suggests that another

election implicating those procedures is underway or imminent.

Plaintiffs’ other allegations of irreparable injuries to justify a preliminary

injunction are unconvincing. The candidate Plaintiffs contend that if the manual

25 recounts are allowed to proceed, simply rejecting the results of those recounts after

the conclusion of this case will not repair the damage to the legitimacy of the Bush

Presidency caused by “broadcasting” the flawed results of a recount that put Vice

President Gore ahead. But the pertinent manual recounts have already been

concluded, and the results from those recounts widely publicized. Moreover, we

reject the contention that merely counting ballots gives rise to cognizable injury.

Plaintiffs also contend that a violation of constitutional rights always

constitutes irreparable harm. Our case law has not gone that far, however. See,

e.g., City of Jacksonville, 896 F.2d at 1285 (“No authority from the Supreme Court

or the Eleventh Circuit has been cited to us for the proposition that the irreparable

injury needed for a preliminary injunction can properly be presumed from a

substantially likely equal protection violation.”); Cunningham v. Adams, 808 F.2d

815, 821-22 (11th Cir. 1987) (affirming denial of preliminary injunction in action

alleging Fourteenth Amendment violations, and finding no abuse of discretion in

district court’s rejection of the plaintiff’s argument that “irreparable injury will be

presumed where there has been a violation of substantive constitutional rights”);

see also Hohe v. Casey, 868 F 2d 69, 73 (3d Cir. 1989) (“Constitutional harm is

not necessarily synonymous with the irreparable harm necessary for issuance of a

preliminary injunction.”). The only areas of constitutional jurisprudence where we

26 have said that an on-going violation may be presumed to cause irreparable injury

involve the right of privacy and certain First Amendment claims establishing an

imminent likelihood that pure speech will be chilled or prevented altogether. See

City of Jacksonville, 896 F.2d at 1285 (citing Cate v. Oldham, 707 F.2d 1176,

1189 (11th Cir. 1983) and Deerfield Med. Ctr., 661 F.2d at 338); see also Hohe,

868 F.2d at 72-73 (“[T]he assertion of First Amendment rights does not

automatically require a finding of irreparable injury, thus entitling a plaintiff to a

preliminary injunction if he shows a likelihood of success on the merits. Rather, . .

. it is the ‘direct penalization, as opposed to incidental inhibition, of First

Amendment rights [which] constitutes irreparable injury.’”) (quoting Cate, 707

F.2d at 1188)). This is plainly not such a case. Cf. City of Mobile v. Bolden, 446

U.S. 55, 76, 100 S. Ct. 1490, 1505 (1980) (constitutional right to vote, and the

principle of equality among voters, is conferred by the Equal Protection Clause of

the Fourteenth Amendment) (citing Reynolds v. Sims, 377 U.S. 533, 84 S. Ct.

1362 (1964)).

Simply put, this principle is the law: we may reverse a district court’s

denial of a preliminary injunction if and only if we find that the court clearly

27 abused its discretion.11 Our review, therefore, must be highly deferential. See,

e.g., Carillon Importers, 112 F.3d at 1126 (“The review of a district court’s

decision to grant or deny a preliminary injunction is extremely narrow in scope.”);

Revette, 740 F.2d at 893 (“Appellate review of such a decision is very narrow.”).

As we have explained:

This limited review is necessitated because the grant or denial of a preliminary injunction is almost always based on an abbreviated set of facts, requiring a delicate balancing of the probabilities of ultimate success at final hearing with the consequences of immediate irreparable injury which could possibly flow from the denial of preliminary relief. Weighing these considerations is the responsibility of the district court.

Id. (quoting Gray Line Motor Tours, Inc. v. City of New Orleans, 498 F.2d 293,

296 (5th Cir. 1974)) (internal quotation marks and additional citation omitted).

The abuse-of-discretion standard, therefore, serves an important and vital purpose.

In the case now before us, the district court expressly found that Plaintiffs

did not meet their burden of showing that immediate irreparable harm would result

if preliminary injunctive relief were not entered. It did so largely because the

11 The district court did not peg its finding of no irreparable harm to any incorrect legal principle. On the contrary, the district court found that, on the record presented to it, no irreparable harm had been proved. See Siegel v. LePore, 2000 WL 1687185 (S.D. Fla. Nov. 13, 2000), at *8 (“In addition, we find Plaintiffs’ alleged injuries on an as-applied basis to be speculative, and far from irreparable, at this stage in the electoral recount process . . . . The inconclusive state of these recount processes coupled with their different factual postures counsels against preliminary uniform injunctive relief at this time.”).

28 limited record before it did not support Plaintiffs’ claims of harm. That critical

finding remains just as compelling, and the irreparability of the alleged injury is no

more established, today.

Accordingly, we cannot say that the district court abused its broad discretion

in finding that Plaintiffs did not meet their burden of showing at least a substantial

likelihood of irreparable injury. Because proof of irreparable injury is an

indispensable prerequisite to a preliminary injunction, Plaintiffs are not entitled to

a preliminary injunction at this time; and the district court’s order must be

affirmed. See, e.g., Canal Authority v. Callaway, 489 F.2d 567, 574 (5th Cir.

1974) (“[W]here no irreparable injury is alleged and proved, denial of a

preliminary injunction is appropriate.”). The Court does not at this time decide the

merits of Plaintiffs’ constitutional arguments.12

AFFIRMED.

12 A decision by the Court on the likelihood of success would require the Court to reach, in some sense, constitutional questions. Even for those of us who believe that the record will not support a substantial likelihood of success on the merits, it is a “fundamental and longstanding principle of judicial restraint . . . that courts avoid reaching constitutional questions in advance of the necessity of deciding them.” Lyng v. Northwest Indian Cemetary Protective Ass’n, 485 U.S. 439, 445, 108 S. Ct. 1319, 1323 (1988). Given our view on the issue of injury, no necessity is present here.

29 ANDERSON, Chief Judge, concurring specially:

I join in the opinion of the Court. I subscribe to the entire opinion including,

inter alia, the holding and reasoning that Plaintiffs have failed to demonstrate

irreparable injury. Although I agree that judicial restraint cautions against the

court’s addressing constitutional issues unless necessary, it does not seem

inappropriate for me in light of the extensive dissents, to discuss my own views

about the likelihood of success on the merits of Plaintiffs’ constitutional issues.

I. LIKELIHOOD OF SUCCESS

A. Standard of Review

A party seeking a preliminary injunction must establish the following four

elements: (1) a substantial likelihood of success on the merits; (2) a substantial

threat of irreparable injury; (3) that its own injury outweighs the injury to the

nonmovant; and (4) that the injunction would not disserve the public interest. See

Haitian Refugee Center, Inc. v. Baker, 949 F.2d 1109, 1110 (11th Cir. 1991).

I note at the outset that the scope of this review of the district court’s denial

of injunctive relief is limited to whether the district court abused its discretion. See

Sierra Club v. Georgia Power Co., 180 F.3d 1309, 1310 (11th Cir. 1999) (“The

30 grant or denial of a preliminary injunction is a decision within the sound discretion

of the district court.”). The district court must exercise its discretion “in deciding

upon and delicately balancing the equities of the parties involved.” United States

v. Lambert, 695 F.2d 536, 539 (11th Cir. 1983) (quoting Tatum v. Blackstock, 319

F.2d 397, 401-02 (5th Cir. 1963)). In this review, I adopt the district court's

findings of fact unless clearly erroneous, but I review de novo jurisdictional issues

and issues of law. See SEC v. Unique Financial Concepts, Inc., 196 F.3d 1195,

1198 (11th Cir. 1999). “Because a preliminary injunction is ‘an extraordinary and

drastic remedy,’ its grant is the exception rather than the rule, and plaintiff must

clearly carry the burden of persuasion.” Lambert, 695 F.2d at 539 (quoting Texas

v. Seatrain Int’l, S.A., 518 F.2d 175, 179 (5th Cir. 1975)).

B. Constitutional Delegation of Authority to the States

The Constitution delegates to the states the authority to establish and

implement procedures for selecting Presidential electors. The Constitution

provides that “[e]ach State shall appoint, in such Manner as the Legislature thereof

may direct, a Number of Electors. . . .” U.S. Const. art. II, § 1, cl. 2.1 The United

1 Article II, Section 1, Clause 2 of the Constitution provides:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of

31 States Code provides that the timely appointment of Presidential electors pursuant

to state law is conclusive. See 3 U.S.C. § 5.2 The Supreme Court has confirmed

this broad delegation of power to the states, subject to the limitation that a state

may not exercise this power in a manner that violates specific provisions of the

Constitution of the United States. See McPherson v. Blacker, 146 U.S. 1, 13 S. Ct.

3 (1892). See also Anderson v. Celebrezze, 460 U.S. 780, 796 n.18, 103 S. Ct.

1564, 1573 n.18 (1983) (stating that “[t]he Constitution expressly delegates

authority to the States to regulate the election of Presidential electors,” but that this

does not give states the power to impose unconstitutional burdens on the right to

vote); Williams v. Rhodes, 393 U.S. 23, 29, 89 S. Ct. 5, 9 (1968) (stating that the

Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. 2 3 U.S.C. § 5 provides:

If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.

32 extensive powers granted to the states to pass laws regulating the selection of

electors is subject to the limitation that these powers “may not be exercised in a

way that violates other specific provisions of the Constitution”); Duncan v.

Poythress, 657 F.2d 691, 699 (5th Cir. Unit B 1981) (stating that while the

Constitution provides no guarantee against innocent irregularities in the

administration of state elections, in rare situations where state election procedures

undermine the basic fairness and integrity of the democratic system, a

constitutional violation exists).

While the unconstitutional exercise of state power is prohibited, the Supreme

Court has recognized that a state’s regulations governing the electoral process will

inevitably impact, in a manner that may burden or restrict, its citizens’ exercise of

their right to vote. See Burdick v. Takushi, 504 U.S. 428, 433, 112 S. Ct. 2059,

2063 (1992); Anderson, 460 U.S. at 788, 103 S. Ct. at 1570. The Supreme Court

has acknowledged that such restrictions are necessary “if [elections] are to be fair

and honest . . . .” Storer v. Brown, 415 U.S. 724, 730, 94 S. Ct. 1274, 1279 (1974).

In the context of a Presidential election, the Supreme Court has confirmed that a

state’s interest in conducting an orderly and fair election is “generally sufficient to

justify reasonable, nondiscriminatory restrictions.” Anderson, 460 U.S. at 788,

103 S. Ct. at 1570.

33 To preserve the essential balance between states’ power to govern elections

and voters’ constitutional rights, the Supreme Court has developed a flexible

standard to use in assessing constitutional challenges to a state’s regulation of

elections. The Supreme Court described this standard succinctly in Burdick v.

Takushi, 504 U.S. 428, 112 S. Ct. 2059 (1992):

[W]hen [First and Fourteenth Amendment] rights are subjected to severe restrictions, the regulation must be narrowly drawn to advance a state interest of compelling importance. But when a state election law provision imposes only reasonable, nondiscriminatory restrictions upon the First and Fourteenth Amendment rights of voters, the State's important regulatory interests are generally sufficient to justify the restrictions.

Id. at 434, 112 S. Ct. at 2063 (internal quotation marks and citations omitted).

Our Circuit’s precedent addressing constitutional challenges to state election

processes has reflected comparable deference to state regulation of elections. We

have held that the scope of voters’ exercise of their right to vote is restricted in the

state election context by considerations of “[t]he functional structure embodied in

the Constitution, the nature of the federal court system and the limitations inherent

in the concepts both of limited federal jurisdiction and the remedy afforded by

section 1983 . . . .” Gamza v. Aguirre, 619 F.2d 449, 452-53 (5th Cir. 1980);3 see

3 The Eleventh Circuit, in the en banc decision Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981.

34 also Curry v. Baker, 802 F.2d 1302, 1314 (11th Cir. 1986) (“Although federal

courts closely scrutinize state laws whose very design infringes on the rights of

voters, federal courts will not intervene to examine the validity of individual

ballots or supervise the administrative details of a local election. Only in

extraordinary circumstances will a challenge to a state election rise to the level of a

constitutional deprivation.”) (internal citation omitted); Duncan, 657 F.2d at 701.

We have emphasized that federal court intervention is not appropriate in “garden

variety” disputes over election irregularities, but that redress of alleged

constitutional injuries is appropriate if “the election process itself reaches the point

of patent and fundamental unfairness . . . .” Roe v. Alabama, 43 F.3d 574, 580

(11th Cir. 1995) (quoting Curry, 802 F.2d at 1315).

These principles guide my analysis of the Plaintiffs’ likelihood of success in

their constitutional challenges to Florida’s election laws. The Plaintiffs argue on

appeal that the district court erred by refusing to enjoin the post-election manual

recounting of ballots in four Florida counties, because they allege that these

recounts violate the constitutional rights of the state’s voters. The Plaintiffs

advance two arguments, an equal protection argument and a substantive due

process argument. I discuss each in turn and cannot conclude based on the sparse

record before this Court that the district court abused its discretion in denying the

35 Plaintiffs’ motion for preliminary injunctive relief. I believe that the Plaintiffs

have failed to establish with sufficient clarity a severe burden or impact on the

rights of Florida voters. See Northeastern Fla. Chapter of Ass’n of Gen.

Contractors of Am. v. City of Jacksonville, Fla., 896 F.2d 1283, 1285

(“Preliminary injunctions of legislative enactments – because they interfere with

the democratic process and lack the safeguards against abuse or error that come

with a full trial on the merits – must be granted reluctantly and only upon a clear

showing that the injunction before trial is definitely demanded by the

Constitution.”). Rather, the alleged impacts are reasonable and are justified by

their furtherance of the state’s important regulatory interests in ensuring accurate

and complete election results. Accordingly, the Plaintiffs fail to make the requisite

showing of a substantial likelihood of success on the merits of their claims, and the

district court thus did not abuse its discretion in refusing to grant a preliminary

injunction.

C. Equal Protection Claim

The Plaintiffs claim that Florida’s statutory manual recount provision as

applied in this case violates the rights of all voters to be treated equally because the

manual recounts are limited to four heavily Democratic counties. The crux of the

36 Plaintiffs’ equal protection argument is that some ballots in counties not

conducting manual recounts will not be counted despite the voters’ intent, because

the ballots are not machine-legible, while identical ballots in counties conducting

manual recounts will be counted.4 The argument boils down to this: there is

greater certainty in some counties than in others that every voter’s intent is

effectuated. I conclude that this argument fails to state a violation of the equal

protection clause.

Under the framework developed by the Supreme Court, when a state election law

severely burdens voters’ constitutional rights, it must be narrowly tailored to serve

a compelling interest; however, lesser burdens trigger less exacting review, and a

state's important regulatory interests are typically enough to justify reasonable,

nondiscriminatory restrictions. Timmons v. Twin Cities Area New Party, 520 U.S.

351, 358, 117 S. Ct. 1364, 1370 (1997) (citing Burdick, 504 U.S. at 434, 112 S. Ct.

at 2063).

4 For example, the Plaintiffs point to the fact that some ballots that are imperfectly punched will be counted in at least one manual-recount county, while an identical ballot would not be machine-counted, and thus would not be counted in a county not conducting manual recounts. In Florida Democratic Party v. Palm Beach County Canvassing Bd., No. 00-11078 (Fla. Palm Beach Co. Cir. Ct., Nov. 22, 2000), Circuit Judge Jorge Labarga held that the Palm Beach County Canvassing Board could not follow a policy of per se exclusion of any ballot, but that each ballot must be considered in light of the totality of circumstances and that where the voter’s intent could be fairly and satisfactorily ascertained, that intent should be given effect.

37 The first step in this analysis, then, is to determine whether Florida’s manual

recount provision severely burdens the rights of those voters in counties not

conducting manual recounts, because their ballots receive less scrutiny than those

of voters in counties conducting manual recounts. I believe that it does not.

In reaching this conclusion, I note first that the Plaintiffs could not credibly

argue that the mere availability of manual recounts in some counties, but not in

others, places an inequitable burden on their right to vote. Taking this argument to

its logical conclusion would lead to the untenable position that the method of

casting and counting votes would have to be identical in all states and in every

county of each state. For example, if one state counted ballots by hand while

another counted by machine, there inevitably would be some ballots in the manual-

recount state that were counted notwithstanding the fact that the identical ballot in

the machine-count state would not be counted. The only apparent way to avoid

this disparity would be for every state to use an identical method of counting. No

court has held that the mere use of different methods of counting ballots constitutes

an equal protection violation. Such a position would be manifestly inconsistent

with the command of Article II, Section 1, Clause 2, that Presidential electors are

to be appointed in the manner directed by each state legislature. Accord Anderson,

460 U.S. at 796 n.18, 103 S. Ct. at 1573 n.18; Williams, 393 U.S. 23 at 29, 89 S.

38 Ct. at 9. Moreover, there is nothing uncommon or unusual in a state statute

permitting and regulating recounts. The Supreme Court has acknowledged that

recount procedures are a common and practical means of ensuring fair and accurate

election results. See Roudebush v. Hartke, 405 U.S. 15, 25, 92 S. Ct. 804, 810-11

(1972). In Roudebush, the Supreme Court noted with approval that Indiana, along

with many other states, had made vote recounts available to guard against

irregularity or error in the tabulation of votes, and the Court stated that such

recount provisions are “within the ambit of the broad powers delegated to the

States by Art. I, § 4.” Id.

The Plaintiffs attempt to bolster their treat-every-ballot-alike argument by

suggesting that partisan influences have tainted the operation of Florida’s manual

recount procedures in this case. The Plaintiffs allege that partisan influences have

intruded in two ways: (1) that the Florida Democratic Party selectively requested

manual recounts in a few populous counties that indicated significantly more Gore

votes than Bush votes in order to gain political advantage; and (2) that the lack of

statutory standards guiding the canvassing boards’ decisions to grant manual

recounts permitted partisan influences to influence those decisions.

The statute itself provides several safeguards against the kind of abuses

suggested by the Plaintiffs. Pursuant to the statute, a candidate or party can only

39 request, not mandate, a manual recount, and the decision is made by a county

canvassing board composed of three statutorily designated officials, including a

county court judge, none of whom are active participants in the candidacy of any

candidate. See Fla. Stat. §102.141. The canvassing board’s discretion is not

standardless, but rather is guided by a statutory purpose of determining the

intention of voters and correcting “an error in the vote tabulation which could

affect the outcome of the election.” Id. §102.166(5). Florida law further provides

that canvassing board meetings must be open to the public. See id. §286.0105(1).

Finally, a canvassing board’s decision to grant or deny a manual recount is subject

to judicial review. See Broward County Canvassing Bd. v. Hogan, 607 So. 2d 508

(Fla. 4th DCA 1992). Once a manual recount has been authorized, statutory

safeguards are provided to ensure that the results are fair and accurate, and

untainted by partisan manipulation.5 The combination of the composition of the

canvassing boards, the statutory standards guiding their discretion, and the

availability of judicial review provides meaningful checks on the exercise of

discretion by canvassing boards, and reduces the risk of partisan influences tainting

the process.

5 These provisions are described infra at 27.

40 Especially with respect to the Plaintiffs’ concern that political candidates can

select particular counties, but also relevant to the Plaintiffs’ concern about the

discretion of canvassing boards, any candidate has an equal right and an equal

opportunity to request manual recounts in any county. See Fla. Stat.

§102.166(4)(a). The Florida statute clearly placed the political parties in this case

on notice of this right and opportunity.6 Other safeguards relevant to both of the

Plaintiffs’ concerns include: the fact that both the request and decision must be

guided by the statutory standards of determining voters’ intent and correcting error

which could affect the outcome, see id. §102.166(5), (7)(b); the fact that the

decision is made, not by an ad hoc board, but by an existing board composed of

statutorily designated officials, including a county judge, who are not active

participants in the candidacy of any candidate, see id. §102.141; the fact that

canvassing board meetings and any manual recounts must be open to the public,

see id. §§ 102.166(6), 286.0105(1); and the fact that a canvassing board’s decision

6 The Plaintiffs do not claim to have lacked timely actual notice that manual recounts were requested by the Florida Democratic Party in the four counties at issue in this case. Indeed, the record reveals that the manual recounts were requested on Thursday, November 9, 2000, and that the Republican Party representatives in Miami-Dade County and Broward County filed responses opposing the manual recounts on the same day, well within the 72-hour statutory deadline for making requests in other counties, i.e., midnight on Friday, November 10, 2000.

41 is subject to judicial review. See Broward County Canvassing Bd., 607 So. 2d at

508.

In assessing the severity of the impact on the right to vote, the scarcity of

evidence in the instant record is also significant. On the sparse record in this

appeal, I cannot conclude that Plaintiffs have made the showing requisite for relief

at this preliminary judgment stage. I cannot conclude that Plaintiffs have

established actual partisan manipulation or fraud. The Plaintiffs do not claim that

any canvassing board unfairly refused to conduct a manual recount. They argue

on appeal that canvassing board officials may have a strong personal interest in the

outcome of the election; however, such a vague allegation of a possible

manipulative or discriminatory motive does not rise to the level of severity

required to merit strict scrutiny of the Plaintiffs’ equal protection claims.

Applying a reasonableness standard, therefore, to judge the constitutionality

of Florida’s manual recount provision, see Burdick, 504 U.S. at 434, 112 S. Ct. at

2063, I would conclude that the state has sufficiently strong interests to justify the

manual recounting of votes within the established statutory framework. As

provided by the plain language of the statute, the manual recount provisions are

designed to remedy errors in the vote tabulation “which could affect the outcome

of the election” and to arrive at the true “voters’ intent.” Fla. Stat. §§ 102.166(5),

42 (7)(b). Florida has a strong interest in ensuring that the results of an election

accurately reflect the intent of its voters. A manual recount provision as a

supplement to mechanical counting provides a valid method to discern the will of

voters, where doubt is raised as to the validity of a machine count.

With respect to the county-by-county differences which the Plaintiffs allege

violate their equal protection rights, the state legislature expressly delegated to

each county the decision-making authority regarding whether and how to conduct

manual recounts, within the context of the statutory standard and procedures, and

subject to the statutory restraints and safeguards, all as discussed above. There are

strong and obvious state interests, both practical and administrative, supporting

Florida’s decentralization of this function to the county level. I cannot conclude

that the Constitution would require that any manual recount be conducted

statewide.7 A statewide requirement would impose a very significant

administrative burden, and an often unnecessary one, as there are innumerable

circumstances in which a manual recount would be warranted only in a single

county. The decision to decentralize is both reasonable and nondiscriminatory.

Indeed, in doing so, Florida is merely exercising the power expressly delegated in

Art. II, § 1, cl. 2, and it is exercising that power by following the same pattern of

7 Many states decentralize this process without requiring statewide recounts.

43 federalism reflected in the Constitution itself. Further, with respect to Florida’s

designation of candidates and parties as the entities authorized to request a manual

recount, this would seem to be a natural and reasonable choice. They are the ones

most likely to be alert to problems with a machine tally.8 Permitting only

candidates, political parties and committees, but not individual voters, to request

recounts is a common practice among the states.9 I believe that Florida’s interest

in the efficient administration of elections is sufficient to justify its decision to

provide for the implementation of its manual recount provision on a decentralized,

localized basis.

My conclusion that the deprivation of rights alleged by the Plaintiffs does

not merit strict scrutiny is supported by the contrast between this case and cases in

8 There are obvious and powerful reasons not to permit individual voters to trigger a manual recount; their interests are adequately represented by the candidates and parties, and individual voter participation would likely lead to administrative nightmares. 9 Many states permit a recount to be triggered only upon the request of a candidate, political party and/or a political committee, but not upon the appeal of an individual voter. See e.g., ARK. CODE ANN. § 7-5-319 (candidate); COLO. REV. STAT. § 1-10.5-106 (candidate); IDAHO CODE § 34-2301 (candidate); IND. CODE ANN. § 3-12-11-1 (candidate or political party’s county chairperson); IOWA CODE § 50.48 (candidate); LA. REV. STAT. § 1451 3-12-11-1 (candidate or political party); ME. REV. STAT. ANN. tit. 21-A, § 737-A (losing candidate); MD. CODE. ANN., Elections § 12-101 (losing candidate); MO. REV. STAT. § 115.553 (candidate); N.J. STAT. ANN. § 19:28-1 (candidate); OKLA. STAT. ANN. tit. 26, § 8-111 (candidate); OR. REV. STAT. § 258.161 (candidate, political party or county clerk); TEX. ELEC. CODE ANN. § 212.023 (candidate); VA. CODE ANN. § 24.2-800 (candidate); WASH. REV. CODE § 29.64.010 (candidate or political party); W. VA. CODE § 3-6-9 (candidate); WIS. STAT. ANN. § 9.01 (candidate); WYO. STAT. ANN. §§ 22-16-109 & 110 (losing candidate or county canvassing board).

44 which the Supreme Court has applied strict scrutiny: those cases have involved a

complete deprivation of the right to vote or a differential weighting of votes based

on impermissible classifications. In O'Brien v. Skinner, 414 U.S. 524, 94 S. Ct.

740 (1974), the Supreme Court applied strict scrutiny to invalidate a state electoral

scheme that completely denied individuals the right to vote based on arbitrary

distinctions. See id. at 533, 94 S. Ct. at 745 (invalidating a New York absentee

ballot statute that operated to deny otherwise eligible prisoners the right to vote,

based solely on the prisoner’s county of incarceration). The reasoning of O’Brien

does not apply here, however, as the Plaintiffs do not assert that they have been

denied the right to vote or to have their vote counted; rather, they assert that their

votes have received unequal treatment in the post-election counting process.

In the one-person, one-vote cases, the Supreme Court has held that states’

weighted voting systems, which arbitrarily and systematically granted a lesser

voice to some voters based on their geographic location, violated the voters’ right

to equal protection. See Moore v. Ogilvie, 394 U.S. 814, 819, 89 S. Ct. 1493, 1496

(1969); Reynolds v. Sims, 377 U.S. 533, 563, 84 S. Ct. 1362, 1382 (1964); Roman

v. Sincock, 377 U.S. 695, 709-10, 84 S. Ct. 1449, 1458 (1964); Gray v. Sanders,

372 U.S. 368, 379-80, 83 S. Ct. 801, 808 (1963). The facts presented by those

cases are different from the facts here, however. The ballots of voters in Florida

45 counties conducting manual recounts are not receiving greater weight than are

votes elsewhere in Florida. The additional scrutiny of ballots afforded under

Florida’s manual recount procedures does not weigh the value of votes; it merely

verifies the count. Unlike the foregoing cases which have held that the systematic

unequal weighting of votes is unconstitutional, here there is no automatic,

inevitable, or systematic granting of greater weight to the choices of any voter or

class of voters.

This conclusion is further supported by the fact that the Constitution itself,

in Article II, § 1, cl. 2, contemplates that each state will direct its own (potentially

different) method of appointing Presidential electors. Within each state, federal

courts have acknowledged that diverse methods of voting may be employed. See

Hendon v. North Carolina State Bd. of Elections, 710 F.2d 177, 181 (4th Cir.

1983) (citing Carrington v. Rash, 380 U.S. 89, 91, 85 S. Ct. 775, 777 (1965)). The

Supreme Court has confirmed that recounts are well within the ambit of a state’s

authority, see Roudebush, 405 U.S. at 25, 92 S. Ct. at 810-11, and the manual

counting of ballots has been commonplace historically. In the light of the

constitutional delegation of authority to the states, confirmed by case law, I believe

that manual recounts in some counties, while identical ballots in other counties are

46 counted and recounted only by machine, and the inevitable variances that this will

produce, do not in themselves severely burden the right to vote.

Florida’s statutory manual recount provision does not limit the Plaintiffs’

ability to cast their votes, nor significantly undermine the certainty that their votes

will be counted. While the statute permits enhanced scrutiny to be given to ballots

in counties where the candidates or parties have requested and the canvassing

boards have authorized a manual recount, the statute provides ample safeguards to

ensure that the decision to conduct manual recounts, and the manner in which the

recounts are conducted, is open, fair, and accurate. While there is some potential

for the statute to be manipulated by those with partisan interests, the sparse record

here does not in my opinion establish a clear showing of partisan fraud or

misconduct that would be required in this preliminary injunction stage. Nor does

the record reveal concrete evidence of substantial or uncorrected errors in manual

counting that have generated erroneous vote tabulations. Therefore, I conclude

that at this stage the Plaintiffs have failed to sufficiently demonstrate a severe

impact on their equal protection rights, so that heightened scrutiny of Florida’s

manual recounts is not merited. See Burdick, 504 U.S. at 434, 112 S. Ct. at 2063.

I believe that Florida’s important regulatory interests are sufficient to justify the

47 reasonable, nondiscriminatory impact the Plaintiffs have shown to their voting

rights. 10

10 Much of Plaintiffs’ argument focuses on the assumption that a candidate’s self- interest in selecting counties likely to produce more undervotes for him introduces an invidious and unconstitutional discrimination. My discussion in text reveals the weaknesses which I see in this argument. In summary, a candidate can only request, not mandate, a recount. The decision is made by a county canvassing board with several built-in statutory safeguards – including the composition of the board (preordained county officials, including a county judge, none of whom can be active in any candidacy), statutory standards to guide the board’s discretion (relating to the intention of voters and an error in the mechanical tabulation), and the fact that the board’s meetings must be open and are subject to public scrutiny and court review. Strong state interests support county-level decentralization; mandating statewide recounts in every instance would impose severe administrative burdens. Rather than invidious discrimination, I suggest that the statute contemplates that candidates or parties are the appropriate entities to make such request because their self-interest prompts them to be alert to problems in a machine tally which might make a recount appropriate. Like the statutory contemplation, a requesting candidate would also contemplate that any opposing candidate would be alert to problems in counties favorable to him. There is an equal right and an equal opportunity in that respect, as stated clearly in the statute. Nothing in the statute suggests that only a candidate losing in a particular county can make a request in that county; the statutory standard is an error in the vote tabulation that could affect the outcome of the election. Nothing suggests that the statute means the “outcome” in that particular county; rather, the statute says “outcome of the election” itself. Nothing suggests that a canvassing board may not consider the potential effects of other recounts in its own decision to authorize a manual recount. Nothing prevents a candidate or a party requesting a manual recount from notifying a canvassing board of the fact that other counties may authorize or have authorized manual recounts which may change the vote totals. As applied here, the record before this Court does not reveal a motive by the Democratic Party to deprive the Republican Party of its opportunity to request manual recounts. The requests challenged here were not strategically delayed; rather, the requests were made on November 9, 2000, more than 24 hours before the 72-hour deadline, leaving ample time for the opposing candidate to make requests in response. Permitting candidates to request recounts is a reasonable way to promote the state’s legitimate and strong interest in ensuring a full and accurate count of ballots where the voters’ intention can be fairly and satisfactorily ascertained, especially so when any request is circumscribed by the statutory safeguards provided here. Indeed, many states permit candidates or political parties to request such recounts; if Plaintiffs’ arguments prevail, the status of many state election laws, and many elections, would be constitutionally suspect.

48 For the foregoing reasons, I would conclude that the Plaintiffs have failed to

prove a likelihood of success on the merits of their equal protection claim.

D. Substantive Due Process Claim

The Plaintiffs argue that the counting procedures used by counties

conducting manual recounts are arbitrary and rife with irregularities that constitute

a denial of due process. Specifically, the Plaintiffs allege that the standards used to

decide which marks or punches on a ballot are counted as votes differ from county

to county and further that these standards have been changed mid-count in one

county. I believe that the record evidence fails to establish that the alleged

unreliability or inaccuracy of manual recounting rises to the level of a severe

burden on the right to vote.

In Curry v. Baker, 802 F.2d 1302 (11th Cir.1986), we refused to find a

constitutional violation in a state gubernatorial candidate’s argument that election

officials had miscounted ballots. See id. at 1319. We stated that, in order for the

election process to reach the point of “patent and fundamental unfairness,” the

“situation must go well beyond the ordinary dispute over the counting and marking

of ballots.” Id. at 1315 (quoting Duncan v. Poythress, 657 F.2d 691, 703 (5th Cir.

1981)). In Curry, we emphasized that a federally protected right is implicated only

49 “where the entire election process – including as part thereof the state’s

administrative and judicial corrective process – fails on its face to afford

fundamental fairness.’” Id. at 1317 (quoting Griffin, 570 F.2d at 1078).

These principles resonate in numerous federal cases holding that disputes

over human or mechanical errors in ballot counting, absent a showing of

intentional manipulation, do not rise to the level of a federal constitutional

violation. See Gold v. Feinberg, 101 F.3d 796, 802 (2d Cir.1996) (holding that

human errors resulting in the miscounting of votes, the presence of ineligible

candidates on ballot, and the late delivery of voting machines to some polling

places, did not rise to the level of a constitutional violation because adequate state

remedies existed); Bodine v. Elkhart County Elec. Bd., 788 F.2d 1270, 1272 (7th

Cir.1986) (concluding that voter-plaintiffs failed to state a constitutional claim

where mechanical and human error resulted in errors in counting votes, but where

there was no allegation that the defendants acted with intent to undermine the

election); Gamza v. Aguirre, 619 F.2d 449, 454 (5th Cir.1980) (concluding that

allegations of negligent vote counting did not state a constitutional claim);

Hennings v. Grafton, 523 F.2d 861, 864-65 (7th Cir. 1975) (stating that while due

process rights would be implicated on a showing of “willful conduct which

undermines the organic processes by which candidates are elected,” no

50 constitutional guarantee protects against inadvertent errors or irregularities;

instead, state law must provide the remedy); Pettengil v. Putnam County R-1 Sch.

Dist., 472 F.2d 121, 123 (8th Cir. 1973) (refusing to intervene in a controversy

over whether illegally cast ballots were mistakenly counted by local election

officials); Powell v. Power, 436 F.2d 84, 88 (2d Cir.1970) (concluding that no

federal remedy existed for human error resulting in non-party members mistakenly

allowed to vote in congressional primary).

Despite these precedents, in reliance on our opinion in Roe v. Alabama, 43

F.3d 574 (11th Cir. 1995), the Plaintiffs argue that post-election changes in ballot-

counting procedures are fundamentally unfair and thus rise above the level of

“garden variety” election disputes to constitute a substantive due process violation.

In Roe, a state court order would have forced Alabama election officials to count

absentee ballots that had been rejected pursuant to a state statute and in accordance

with previous state practice.11 See id. at 578. We concluded that such a post-

election departure from the state’s statutory mandate and previous election practice

would undermine the fundamental fairness of the election. See id. at 581. As we

explained in Roe, our decision was based on the fact that such a change would

11 The applicable Alabama statute required absentee voters to send their ballots accompanied by an affidavit which was either notarized or signed by two witnesses. It was undisputed in Roe that the previous practice in Alabama, as mandated by statute, had been to disregard absentee ballots that were mailed in without the required affidavit.

51 disenfranchise those people who would have voted absentee, but were deterred

from doing so by the burden of complying with the statutory requirements for

completing absentee ballots. See id.; see also Griffin v. Burns, 570 F.2d 1065,

1078-79 (1st Cir.1978) (finding fundamental unfairness in a state’s unforeseeable

invalidation of absentee ballots which resulted in the disqualification of ten percent

of the total votes cast in a primary election). Cf. Bennett v. Yoshina, 140 F.3d

1218, 1227 (9th Cir. 1998) (rejecting a substantive due process challenge to

Hawaii’s decision to count blank ballots as votes against convening a state

constitutional convention, where there was no suggestion that voters in favor of the

constitutional convention had relied on the state’s previous practice of disregarding

blank ballots in a constitutional convention vote); Partido Nuevo Progresista v.

Barreto Perez, 639 F.2d 825, 828 (1st Cir.1980) (holding that the Supreme Court of

Puerto Rico’s decision to count mismarked ballots where the intent of the voter

was clear did not violate due process, because here could have been no detrimental

reliance by any voter on the assumed invalidity of mismarked ballots).

Our decision in Roe is distinguishable from the instant case in at least two

significant ways. First, at this stage of the litigation, the record does not establish

the requisite showing of a significant post-election departure from Florida’s

52 manual recount practices before this election.12 Unlike the circumstance in Roe,

where the post-election change of procedure violated a statutory mandate, in this

case Florida’s statute expressly provides for manual recounts and establishes the

voter-intent standard to be used in conducting the recounts. While the Plaintiffs

have alleged that various canvassing boards have used different standards or have

changed their standards with respect to the analysis of particular physical attributes

of ballots, the Plaintiffs have not alleged that any board has departed from a good-

faith attempt to determine the voters’ intent. Thus, the Plaintiffs have failed to

show any departure from statutory mandate or from a pre-election procedure that

rises to the level of fundamental unfairness.

12 There remain in the present record sufficient disputed facts as to any significant change of practice that I cannot conclude with the necessary clarity that any significant number of votes was counted pursuant to a changed practice.

My opinion would not change, even assuming that there may have been a change of practice -- i.e., from counting only partially detached chads to counting ballots that were not partially detached, but under the totality of the circumstances the intention of the voter could be fairly and satisfactorily ascertained. See Florida Democratic Party v. Palm Beach County Canvassing Board, No. 00-11078 (Fla. Palm Beach Co. Cir. Ct., Nov. 22, 2000). The statutory standard – i.e., the determination of the voter’s intent within the Canvassing Board’s discretion, subject to judicial review – has remained constant. Even assuming some change with respect to the discretionary interpretation of particular physical attributes of ballots, there is no evidence in this record that a practice has been implemented which is inconsistent with the plain statutory standard, as was the case in Roe.

53 Second, Roe is distinguishable because this record does not show

detrimental reliance by voters. In this case, there is no evidence to suggest that a

voter in any county failed to adequately punch or mark a ballot in reliance on a

belief that a vote in some other county would not be counted if a ballot were only

partially punched, i.e., in reliance on an anticipated lack of a manual recount.

Indeed, it would be manifestly unreasonable to suggest such reliance. Quite the

contrary, the statute expressly puts voters on notice of the possibility of a manual

recount. As a corollary to this obvious lack of reliance, this case involves no

disenfranchisement of voters, unlike the disenfranchisement in Roe of people who

failed to vote absentee because of the inconvenience imposed by the statutory

notarization/witness requirement.

In addition to the lack of detrimental reliance by voters on Florida’s

previously established election procedures, the record before us is not sufficient to

conclude that the district court was clearly erroneous in declining to find

purposeful, systematic discrimination in the manual recounting procedures

employed. In fact, the manual recount statute mandates procedures to ensure

fairness and accuracy in the conduct of any manual recount. Any manual recount

must include at least one percent of the total votes cast and at least three precincts.

See Fla.Stat. §102.166(4)(d). A manual recount must be open to the public, and

54 counting teams must have at least two members who are, when possible, members

of at least two political parties. See id. § 102.166(6), (7)(a). Determination of the

voter’s intent is the statutory standard. See id. § 102.166(7)(b). Florida law

provides that the decisions and actions of county canvassing boards are subject to

judicial review, not only with respect to their decision on whether to conduct a

manual recount, as discussed above, but also with respect to the general validity of

their counting procedures. See Beckstrom v. Volusia County Canvassing Bd., 707

So. 2d 720 (Fla. 1998); Boardman v. Esteva, 323 So.2d 259 (Fla. 1975). State

courts have authority to review election challenges, whether brought by a candidate

or party as a protest under Fla. Stat. § 102.166, or brought by a candidate, qualified

voter, or taxpayer as a contest under Fla. Stat. § 102.168. A court may void a

challenged election result based on a finding of substantial irregularities that raise a

reasonable doubt as to whether the election results express the will of the voters.

See Beckstrom, 707 So. 2d at 725. These statutory safeguards are calculated to

protect against the risk of the abuses that the Plaintiffs fear. In this case, the

Plaintiffs have failed to persuade me that these safeguards were ineffective. The

district court found, based on the evidence stipulated at the hearing, that “no

evidence has been demonstrated that these recounts have generated erroneous

55 tabulations.” Based on my review of the evidence, I cannot conclude that this

finding was clearly erroneous.13

Under these circumstances, I am not persuaded that Plaintiffs have made the

requisite showing of a severe impact on their right to vote. On this record, they

have failed to prove that this case rises above a “garden variety” dispute over the

counting of ballots to reach the level of fundamental unfairness. Because Florida’s

strong state interests, as discussed above, justify a decentralized vote-counting

process, I conclude that the Plaintiffs fail to show a likelihood of success in

proving their substantive due process claim. Because the Plaintiffs fail to show a

substantial likelihood of success on the merits of their constitutional claims, they

fail to demonstrate that the district court abused its discretion in denying the

motion for preliminary injunctive relief.14

13 While this record reveals isolated observations of acts from which a fact finder might infer an effort to dislodge a chad, I cannot conclude that the district court was clearly erroneous. I see little or no evidence of actual intent to dislodge a chad, or that ballots were counted when they were not already partially dislodged. I also note that the presence of Republican and Democratic observers, in addition to the intense public scrutiny, helps to ensure the integrity of the process. 14 The Plaintiffs also allege a First Amendment violation, essentially arguing that Florida’s statute grants county canvassing board members unlimited discretion to impinge on voter’s rights through arbitrary decisions regarding whether to conduct manual recounts. In another articulation of their argument, the Plaintiffs argue that the canvassing board’s decisions are governed by no standards. The Plaintiffs argue that the right to vote is protected by the First Amendment. See Williams v. Rhodes, 393 U.S. 23, 30-31, 89 S.Ct. 5, 10 (1968) (stating that the right to vote is entitled to similar constitutional protections as the First Amendment right of association); Carrington v. Rash, 380 U.S. 89, 85 S. Ct. 775 (1965) (holding that the right to vote is a fundamental right protected by the Equal Protection Clause). They argue that the

56 II. CONCLUSION

For the foregoing reasons, I would conclude that Plaintiffs have failed to

establish a substantial likelihood of success warranting federal court intervention

on either equal protection or due process grounds. The conclusion of a majority of

this court that the district court did not abuse its discretion in concluding that

Plaintiffs had failed to establish a substantial likelihood of irreparable harm, and

my conclusion in this concurring opinion that Plaintiffs have failed to establish a

Constitution prohibits the overbroad exercise of discretion by officials over First Amendment rights and, therefore, that Florida’s statute violates the Constitution. See Forsyth County v. Nationalist Movement, 505 U.S. 123, 129-30, 112 S. Ct. 2395, 2401 (1992) (stating that an “impermissible risk of suppression of ideas” exists where “an ordinance . . . delegates overly broad discretion to the decisionmaker”).

Contrary to the Plaintiffs’ argument, cases implicating First Amendment standards have involved claims that pure speech might be chilled or prevented altogether. See Forsyth County, 505 U.S. at 129-30, 112 S. Ct. at 2401; City of Jacksonville, 896 F.2d at 1285 (citing Cate v. Oldham, 707 F.2d 1176, 1189 (11th Cir. 1983) and Deerfield Med. Ctr., 661 F.2d at 338). This is not such a case. Instead, the constitutional right to vote, and the principle of equality among voters, is protected under the Equal Protection Clause of the Fourteenth Amendment. See City of Mobile v. Bolden, 446 U.S. 55, 76, 100 S. Ct. 1490, 1505 (1980)(citing Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362 (1964)). I conclude that the Florida manual recount statute satisfies equal protection because it contains constitutionally sufficient standards to constrain the discretion of canvassing board officials. I describe the statutory and judicially imposed constraints on these officials’ discretion supra at 11-13. Based on these constraints, I conclude that the challenged provisions of Florida election law do not permit officials to exercise overly broad discretion over voters’ rights.

I thus conclude that the Plaintiffs have failed to show a severe burden on their voting rights; instead, the statutory safeguards ensure only reasonable, nondiscriminatory burdens. I conclude that Florida’s important interests in ensuring accurate, complete election results, and the state’s strong interest in its established system of decentralized administration of elections, justify the reasonable, nondiscriminatory impact of Florida’s manual recount statute on voters’ rights. The Plaintiffs thus fail to establish a First Amendment violation.

57 substantial likelihood of success, are supported by the lack of evidentiary

development in this case and by the preliminary injunction posture of the case.

Especially significant in our consideration of this case is the sparse record on

which Plaintiffs have chosen to proceed.15 The record before us is without the

benefit of discovery or evidentiary hearing. Where, as here, a party has chosen to

forego an evidentiary hearing, it is not entitled to have its disputed representations

accepted as true. See Charette v. Town of Oyster Bay, 159 F.3d 749, 755 (2d Cir.

1998). The scant evidence in this record has not been tested by the adversarial

process, notwithstanding the fact that material and relevant facts are in dispute. In

addition, the preliminary injunction posture of this case cautions against federal

court intervention. See Northeastern Fla. Chapter of Ass’n of Gen. Contractors of

Am. v. City of Jacksonville, Fla., 896 F.2d 1283, 1285 (“Preliminary injunctions of

legislative enactments – because they interfere with the democratic process and

lack the safeguards against abuse or error that come with a full trial on the merits –

must be granted reluctantly and only upon a clear showing that the injunction

before trial is definitely demanded by the Constitution.”). I cannot conclude that

Plaintiffs on this sparse record have demonstrated a clear showing, either with

15 We noted in our November 27, 2000, Order that Plaintiffs’ motion for permanent injunctive relief has remained pending in the district court, and that court has remained available for further factual development.

58 respect to the likelihood of success or irreparable injury, and thus have not made a

clear showing that an injunction before trial is definitely demanded by the

Constitution.

For the foregoing reasons, I thus specially concur, in addition to joining the

opinion of the court.

59 TJOFLAT, Circuit Judge, dissenting, in which BIRCH and DUBINA, Circuit Judges, join and in which CARNES, Circuit Judge, joins as to Part V. of Judge Tjoflat’s dissent in Touchston v. McDermott:

I dissent. The Florida election scheme at issue is unconstitutional for the

reasons set forth in my dissenting opinion in Touchston v. McDermott, No. 00-

15985 (11th Cir. Dec. 6, 2000) and by Judge Carnes in his dissenting opinion.

60 BIRCH, Circuit Judge, dissenting, in which TJOFLAT and DUBINA, Circuit

Judges, join:

While I concur in the dissenting opinions by my colleagues, Judges Tjoflat,

Dubina and Carnes, my concern about the constitutional deprivations alleged in

these cases is focused on the lack of standards or guiding principles in the Florida

manual recount statute. Florida’s statutory election scheme envisions hand

recounts to be an integral part of the process, providing a check when there are

“error[s] in the vote tabulation which could affect the outcome of the election.”

See Fla. Stat. Ann. § 102.166(5). The 1989 Florida legislature, however, abdicated

its responsibility to prescribe meaningful guidelines for ensuring that any such

manual recount would be conducted fairly, accurately, and uniformly. While

Florida’s legislature was unquestionably vested with the power under Article II,

Section One of the United States Constitution to devise its own procedures for

selecting the state’s electors, it was also required to ensure that whatever process it

established comported with the equal protection and due process requirements of

the Fourteenth Amendment to that same Constitution.1 Other states, such as

Indiana, have provided clear and definitive standards under which manual recounts

1 See Moore v. Ogilvie, 394 U.S. 814, 818-19, 80 S.Ct. 1493, 1496 (1969) (discussing the applicability of the Fourteenth Amendment to the nominating process for presidential candidates).

61 are to be conducted. See Ind. Code § 3-12-1-9.5 (providing in part that chads that

have been pierced count as valid votes, but those with indentations that are not

separated from the ballot card do not). Absent similar clear and certain standards,

Florida’s manual recount scheme cannot pass constitutional muster.

Moreover, Congress, to which the electors from Florida will be ultimately

certified, has established a safe harbor, 3 U.S.C. § 5, that requires that such rules

and standards be established before the election. Because the 1989 Florida

legislature has, in my view, abdicated its responsibility to formulate

constitutionally clear and objective statutory rules and standards for the election

process in Florida, it has disenfranchised voters throughout the state.2 The well-

intended and responsible county canvassing boards across the state have been

given, in legislative terms, an unfunded mandate --- discern the voter’s intent

without any objective statutory instructions to accomplish that laudable goal. The

effect of such an unguided, standardless, subjective evaluation of ballots to

ascertain voter intent is to cause votes to be counted (or not to be counted) based

only upon the disparate and unguided subjective opinion of a partisan (two

2 See Fl. Stat. Ann. § 102.166 (West 1989). See generally Roe v. Alabama, 43 F.3d 574, 581-82 (11th Cir. 1995) (per curiam) (finding that the alteration of objective standards after the election disenfranchised voters).

62 members are elected in partisan voting) canvassing board.3 Since their opinions as

to voter intent are standardless no meaningful judicial review is possible by a

Florida court. Accordingly, by finding an abridgement to the voters’ constitutional

right to vote, irreparable harm is presumed and no further showing of injury need

be made.4

It has been said that to err is human --- and humans vote. Thus, it should not

be surprising that the voting process is subject to error. However, as demonstrated

in the recent Presidential election, the frequency, magnitude and variety of error

associated with the exercise of this sacred right of citizenship is at once astounding

and deeply troubling. Morever, the media’s focus on the campaign preceding

3 See Fl. Stat. Ann. § 102.141 (providing that the County Canvassing Board shall be comprised of a county court judge, chairman of the board of county commissioners and supervisor of elections; Fl. Stat. Ann. § 124.01(2) (providing for popular election of county commissioners); Fl. Const. Art. 8, Sec. 1(d) (providing for popular election of the supervisor of elections). 4 We have indicated that the injury suffered by a plaintiff is “‘irreparable’ only if it cannot be undone through monetary remedies.” Cunningham v. Adams, 808 F.2d 815, 821 (11th Cir. 1987). To that end, we have presumed irreparable harm to a plaintiff when certain core rights are violated. See Baker v. Buckeye Cellulose Corp., 856 F.2d 167, 169 (11th Cir. 1988) (irreparable harm presumed in Title VII cases); Cate v. Oldham, 707 F.2d 1176, 1188 (11th Cir. 1983) (irreparable injury presumed from violation of First Amendment rights); Deerfield Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. Unit B 1981) (irreparable injury presumed from violation of right to privacy under the Fourteenth Amendment); Northeastern Florida Chapter of Ass’n of Gen. Contractors v. City of Jacksonville, Florida, 896 F.2d 1283, 1285-86 (11th Cir. 1990) (explaining that the basis for presuming irreparable injury in Cate and Deerfield was that given the “intangible nature” of the violations alleged, the plaintiffs could not effectively be compensated by an award of monetary damages). Cf. Richard Feiner & Co. v. Turner Entm’t Co., 98 F.3d 33, 34 (2d Cir. 1996) (irreparable harm presumed when plaintiff establishes a prima facie case of copyright infringement).

63 November 7, having been eclipsed by its subsequent frenzy, has left the average

citizen at the least skeptical, and at the worst cynical, about our democratic

institutions. Morever, in its present incarnation, the post-election debacle that

brings these cases to us for resolution may be cynically viewed by some as

depicted by Congresswoman Shirley Chisholm:

[P]olitics is a beautiful fraud that has been imposed on the people for years, whose practitioners exchange gilded promises for the most valuable thing their victims own: their votes. And who benefits the most? The lawyers.

Shirley Anita Chisholm, Unbought and Unbossed, 1970. To respond in that way

would be a mistake.

While our nation’s citizens have every right to be concerned, exasperated,

fatigued and even cynical, it is my fervent hope that from these events they will

come to understand, if not appreciate, the role of government’s Third Branch in the

life of our precious democracy. Our basic function in this society is to provide a

forum in which disputes --- both great and small (although to those involved, a

dispute is never “small”) --- can be decided in an orderly, peaceful manner; and

with a high level of confidence in the outcome. Lawyers, as officers of the court,

are integral to that process in our adversarial system.

The right to vote --- particularly for the office of President of the United

States, our Commander-In-Chief, --- is one of the most central of our fundamental

64 rights in a democracy.5 Accordingly, any dispute that has at its core the legitimacy

of a presidential election and impacts upon every citizen’s right to vote, deserves

the most careful study, thought and wisdom that we can humanly bring to bear on

the issues entrusted to us. Thus, I feel compelled to attest to the fact that my

brother and sister judges have embraced this case with a sense of duty, concern,

and conscientious hard work that is worthy of the issues before us.

Aware of the importance of these cases6 and the urgency attendant to the

issues presented, we decided to take these disputes en banc --- that is, before the

5 An executive like the President has broad discretion; he has the power to affect every voter, and thus every voter must be permitted to vote and to have his ballot both counted and equally weighed. As the Supreme Court observed in Anderson v. Celebrezze, 460 U.S. 780, 794- 95, 103 S. Ct. 1564, 1573 (1983) (citations omitted):

[I]n the context of a Presidential election, state-imposed restrictions implicate a uniquely important national interest. For the President and the Vice President of the United States are the only elected officials who represent all the voters in the Nation. Moreover, the impact of the votes cast in each State is affected by the votes cast for the various candidates in other States. Thus in a Presidential election a State's enforcement of more stringent ballot access requirements, including filing deadlines, has an impact beyond its own borders. Similarly, the State has a less important interest in regulating Presidential elections than statewide or local elections, because the outcome of the former will be largely determined by voters beyond the State's boundaries. 6 These cases have arrived at the appropriate juncture and present circumstances are of such an extraordinary scope that the “challenge to a state election rise[s] to the level of a constitutional deprivation.” Curry v. Baker, 802 F.2d 1302, 1314 (11th Cir. 1986). See Roe, 43 F.3d at 580, 585. The dissent in Roe opined that federal courts should not interject themselves into “state election disputes unless extraordinary circumstances affecting the integrity of the state’s election process are clearly present in a high degree.” Id. at 585. I am convinced, and surmise that the Supreme Court has concluded, that such a situation confronts us now.

65 entire court of twelve judges.7 Moreover, utilizing a procedure that we normally

employ in death penalty cases, we arranged through the clerks of the district courts

involved to have copies of all filings there “lodged” (i.e., copies provided) with us

contemporaneously.8 Hence, we have been able to review and study the progress

of the factual and legal matters presented in these cases from their inception.

Accordingly, long before the anticipated notices of appeal were filed, formally

bringing them to us, we were about the study and review of the legal issues to be

resolved. Thus, the reader of our opinions9 in this case should understand that our

time for consideration has been considerably longer than it might appear at first

blush.

Just as the electorate was divided in their good faith effort to cast their votes

for our nation’s chief executive, the members of this court have discharged their

duty to interpret the law in the context of this case in an unbiased and sincere

effort. Inevitably the pundits will opine that a judge’s decision is somehow linked

to the political affiliation of the President that appointed the judge. While we at all

levels of the judiciary have come to expect this observation we continue to regret

7 Fed.R.App.P. 35(a)(2). 8 11th Cir. R. 22-3. 9 All of our opinions are available to the public on the Internet at www.ca11.uscourts.gov upon publication.

66 that some “think” that is so. It may be true that a judge’s judicial philosophy may

reflect, to some degree, the philosophy of the appointing President --- not a

surprising circumstance --- but to assume some sort of blind, mindless, knee-jerk

response based on the politics of a judge’s appointer does us and the rule of law a

grave injustice. More importantly it is just wrong.

I would hope that a careful and thoughtful review of the opinions of my

brothers and sisters would dispel any suggestion that their views on the important

issues before us are anything but the result of days of careful study and thoughtful

analysis --- because these opinions are nothing less. We have done our duty. I am

proud to be associated with my judicial colleagues that have been called upon to

discharge their respective constitutional obligations, albeit reluctantly --- both on

this court and the many other state and federal courts involved. Indeed these recent

events have been a civics lesson for some --- particularly the young; but they have

also been a reminder that our nation’s system of governance has weathered the test

of time and tumult; the old three-legged stool10 still stands erect and with sufficient

strength to support the hopes and dreams of our nation’s citizens.

10 The three branches of our government, the Legislative, the Executive, and the Judicial (“The Third Branch”), have often been compared to the familiar early American three-legged stool.

67 The revered and quotable jurist, Learned Hand, once observed: “The spirit of

liberty is the spirit which is not too sure that it is right . . .”11 While not “right”

about many things, I am confident that we have given these matters the attention

they justly deserve and trust that, at least, we have laid the groundwork for an

informed decision by the justices of the United States Supreme Court should they

exercise their judgment to hear this case. It is my hope that they do. We have

done our best so that they can do their best.

11 The corollary to that thought was expressed by the elder statesman from Florida, Congressman Claude Pepper: “One has the right to be wrong in a democracy.” Cong. Rec. May 27, 1946.

68 DUBINA, Circuit Judge, dissenting, in which TJOFLAT and BIRCH, Circuit

I agree with the majority’s disposition of the issues of abstention, res

judicata, collateral estoppel, and mootness. I also join and concur fully in the

dissenting opinions filed by Judges Tjoflat, Birch, and Carnes. I dissent from the

disposition of the remaining issues discussed in the majority’s opinion.

Specifically, I disagree with the notion that we cannot convert the preliminary

injunction and reach the merits of this case. See Thornburgh v. American College

of Obstetricians & Gynecologists, 467 U.S. 747 (1986).

As to the merits of this case, the legal principles set forth in the cases of

Moore v. Ogilvie, 394 U.S. 814 (1969), and Roe v. Alabama, 43 F.3d 574 (11th

Cir. 1995), govern. Based on these principles, I would reverse the judgment of the

district court in this case.

69 CARNES, Circuit Judge, dissenting, in which TJOFLAT, BIRCH and DUBINA,

Circuit Judges, join:

I agree with the Court that the lawsuits in this case and in Touchston v.

McDermott, No. 00-15985, are not barred by the Rooker-Feldman doctrine or by

the doctrines of res judicata, collateral estoppel, or mootness, and that there is no

basis for this Court to abstain.1 I disagree, however, with the Court’s conclusion

that irreparable injury has not been shown in these two cases. My disagreement

with that conclusion stems from my belief that the selective manual recounts in

some of the Florida counties that use the punch card system of voting violate the

equal protection rights of the voters in the other punch card system counties. The

harm from that violation exists and will continue so long as the results of any of

those selective manual recounts are included in Florida’s certified election results.

Because the existence and nature of the constitutional violation is inextricably

linked to the question of irreparable injury, I turn first to a discussion of the

selective manual recounts in this case, and how those recounts violated the

1 I address the two cases jointly in this opinion, which is appropriate in view of the similarity of issues, substantial overlap of parties, cross reference in the briefs and oral argument in each case to the other, and the district court in Touchston’s incorporation by reference of the reasoning of the district court’s opinion in Siegel.

In order to avoid duplication, I will adopt in my dissenting opinion in Touchston what I have said here.

70 constitutional rights of the similarly situated voters who did not receive the benefit

of them.

Of course, not every election dispute implicates the Constitution and justifies

federal court intervention, and “[g]enerally, federal courts do not involve

themselves in ‘garden variety’ election disputes.” Roe v. Alabama, 43 F.3d 574,

580 (11th Cir. 1995) (Roe I) (quoting Curry v. Baker, 802 F.2d 1302, 1315 (11th

Cir. 1986)). But this case is more than a garden variety election dispute. It

concerns more than the validity of individual ballots or the administrative details of

an election. This case involves part of a state’s election law designed in a way that

permits or even encourages infringement of the federal constitutional rights of a

large category of voters, and a claim that the law was actually applied in a way that

violated those rights. Federal courts have the authority and duty to address and

decide such claims. That is what the Supreme Court did in Moore v. Ogilvie, 394

U.S. 814, 89 S.Ct. 1493 (1969) (striking down as unconstitutional part of Illinois’

method for selecting Presidential electors). That is what we did in the Roe cases.

See Roe I, 43 F.3d at 580 (affirming preliminary injunction against counting votes

that state trial court had ordered to be counted); Roe v. Alabama, 52 F.3d 300 (11th

Cir. 1995) (Roe II) (same); Roe v. Alabama, 68 F.3d 404 (11th Cir. 1995) (Roe

III) (same as to permanent injunction). That is what we should do in this case.

71 The record in this case is not replete with factual detail, but there are

sufficient undisputed facts to establish a constitutional violation based upon the

selective manual recounts that were undertaken in only a few punch card counties

and the resulting discriminatory treatment or weighting of the votes of similarly

situated voters.2 For present purposes, I accept as fact everything represented as

fact in the affidavits filed by the Democratic Party, which is the party that

requested the selective manual recounts at issue in this case, and the chief party in

interest on the defendants’ side, and will add to them only those facts which neither

party disputes. Proceeding in that manner makes it appropriate to decide the merits

and whether permanent relief should be granted in these two appeals from the

denials of preliminary injunctions. See Thornburgh v. Am. Coll. of Obstetricians

& Gynecologists, 476 U.S. 747, 755 - 57, 106 S.Ct. 2169, 2176 (1986), overruled

on unrelated grounds, Planned Parenthood v. Casey, 505 U.S. 833, 112 S.Ct. 2791

(1992). The Thornburgh decision establishes that a court of appeals may decide

2 The plaintiffs also complain about the manual recount that took place in one county, Volusia, which uses the optical scan or marksense system of voting. However, the evidence makes it abundantly clear that Volusia County was plagued with a host of problems in tabulating its vote, including outright equipment and software failures. There is no evidence that the manual recount conducted in Volusia County was done for any reason except to correct those failures and ensure that they did not taint the reported results. Nor is there any evidence in the record that any other county had an optical scan system that suffered from similar problems but for which no manual recount was ordered. The situation involving Volusia County is materially different from that involving the punch card system counties of Broward, Palm Beach, and Miami-Dade. Accordingly, I will not discuss Volusia County any further in this opinion.

72 the final merits of a case in an appeal from the grant or denial of a preliminary

injunction if “the facts are established or of no controlling relevance,” and it is not

a situation “when there is no disagreement as to the law, but the probability of

success on the merits depends on facts that are likely to be developed at trial.” Id.

at 757 & n. 8, 106 S.Ct. at 2177 & n. 8. The facts that are established or

undisputed in these two cases entitle the plaintiffs to relief for reasons I will

explain, and thus all disputed or undeveloped facts are of “no controlling

relevance.” 3

Proceeding in this manner, the Florida Democratic Party’s factual position

plus the undisputed facts are these. Twenty-four of Florida’s 67 counties use a

vote system in which the voter’s preference is expressed by punching a stylus

through a card that is later passed through a tabulating machine. See Siegel, Aff.

of William F. Galvin, Appendix to Brief of Florida Democratic Party (“Fla. Dem.

App.”) at tab 10; Chart A.4 There are different models of punch card tabulating

3 When a court of appeals decides the final legal merits of a case on an appeal from the denial of a preliminary injunction, it does not review merely for an abuse of discretion. Instead, its scope of review is plenary. See Thornburgh, at 757, 106 S.Ct. at 2176 (“The customary discretion accorded to a District Court’s ruling on a preliminary injunction yields to our plenary scope of review as to the applicable law.”). 4 One of the affidavits submitted to the district court by the Florida Democratic Party states that 26 Florida counties use punch card voting systems. See Siegel, Aff. of Jon M. Ausman, Appendix to Brief of Florida Democratic Party at tab 13. According to the affidavit, that information was obtained from the Florida Secretary of State’s Web Site. Id. We know now, however, based on official records provided by the Secretary of State, that only 24 Florida

73 machines, but all of them work by directing light at the punch card being fed

through the machine and reading the beam that results from the light passing

through the hole that has been punched in the card by the voter. See Siegel, Aff. of

William F. Galvin, Fla. Dem. App. at tab 10. If the hole punched in the card is not

clear of any chad, there is a possibility, perhaps a likelihood, that the tabulating

machine will not count the vote. Id.

The failure of the punch card system to count all of the intended votes is a

problem inherent in that voting system. See, e.g., Siegel, Aff. of Ion V. Sancho,

Fla. Dem. App. at tab 9; Siegel, Aff. of William F. Galvin, Fla. Dem. App. at tab

10; Siegel, Aff. of Rebecca T. Mercuri, Fla. Dem. App. at tab 16. It is a serious

problem that results in a significant number of intended votes not being counted;

and those intended votes will remain uncounted unless there is a manual recount

involving visual inspection of the punch cards by human beings. See Siegel, Aff.

of Jackie Winchester, Fla. Dem. App. at tab 8; Siegel, Aff. of Ion V. Sancho, Fla.

Dem. App. at tab 9; Siegel, Aff. of William F. Galvin, Fla. Dem. App. at tab 10;

Siegel, Aff. of Jon Ausman, Fla. Dem. App. at tab 13; Siegel, Aff. of Rebecca T.

Mercuri, Fla. Dem. App. at tab 16. While plaintiffs question whether human

beings can accurately ascertain the intent of a voter by inspecting a punch card

counties use punch card voting systems. See Chart A. Although the difference is not material to resolution of the legal issues, I will use the correct number, which is 24.

74 with an indented, pregnant, swinging, or otherwise not fully removed chad, the

theory of the selected manual recounts undertaken in this case is that it can be

done, and that as a result intended votes which would otherwise have been

disregarded can and will be counted in a manual recount.

Indeed, the unwavering refrain of the Florida Democratic Party underlying

its requests for manual recounts in 3 punch card counties, and throughout all of the

state and federal litigation related to this case, has been that punch card systems

necessarily and invariably undercount votes which can only be recaptured and

considered by manual recounts. In justifying its request for manual recounts in the

3 counties, the Party told the Florida Supreme Court in a related state court case

that, “It is well established that machine tabulation of votes fail (sic) to capture

votes cast by a large number of voters, particularly when the number of votes cast

is substantial – almost six million in the case of Florida’s Presidential election.

Machine tabulation of these votes, without some additional process for counting

votes that the machines fail to tabulate, results in the disenfranchisement of

countless voters.” Answer Brief of Petitioners/Appellants Al Gore, Jr. and Florida

Democratic Party at 20, Palm Beach County Canvassing Bd. v. Harris, ___ So.2d

____ (filed in the Fla. Supreme Court Nov. 19, 2000) (Nos. SC00-2346, SC00-

2348 & SC00-2349); see also id. at 15 (“Underlying the addition of a provision for

75 a manual recount is an understanding that the process is more accurate than

machine counts, not less.”) (emphasis in original); id. at 16 (“[M]any studies

indicate that machine counts of punch card ballots produce significant

inaccuracies.”).

In the briefs the Democratic Party filed in our court in these two cases, it has

told us that:

The optical scanner voting system used by most Florida counties provides good results, including a “non-vote” percentage for the Presidency (where one would expect “non-votes” to be very low) of only 0.40%. Punch card voting, by contrast, which is in effect in the three larger counties that have undertaken considerable manual recounts ... is much less reliable, yielding an improbable “non-vote” percentage for the Presidency of over 3%.

Brief of Intervenor/Appellee Florida Democratic Party at 23-24, Touchston v.

McDermott, No. 00-15985 (filed in the 11th Cir. Nov. 28, 2000); see also id. at 10

(“Punch card ballots generate a consistently greater level of undervotes –

approximately 3.2% – due to imperfect perforations and still-appended chads.”).5

5 The figures I have quoted from the Florida Democratic Party’s brief were drawn by the Party from the affidavit of Jon Ausman, which the Party filed in the district court in the Siegel case. See Siegel, Aff. of Jon Ausman, Fla. Dem. App. at tab 13. In that affidavit, which is dated November 12, 2000, Mr. Ausman states that those figures are based upon the best data he could obtain at that time. The data was from only 18 of Florida’s 67 counties – 11 punch card counties and 7 optical scan (or marksense) counties. Id. at paragraphs 6 - 7.

We now have complete figures from all 67 Florida counties, because the Secretary of State as part of her official duties keeps election reports that counties are required by law to submit to her. The Florida Supreme Court takes judicial notice of the contents of records kept by

76 The Democratic Party told the United States Supreme Court essentially the

same thing: “Because of the high percentage of undervotes created by punch card

voting systems, the vast majority of counties in Florida do not use them.” Brief of

Respondents Al Gore, Jr., and Florida Democratic Party at 4 n.2, Bush v. Palm

Beach County Canvassing Bd., No. 00-836 (filed in the United States Supreme

Court Nov. 28, 2000).

Summarizing its theory of the case, the Democratic Party has said: “the

evidence in this case suggests that some Florida voters could potentially be

disenfranchised because the automated systems utilized in some Florida counties

the Secretary of State, see State ex rel. Glynn v McNayr, 133 So. 2d 312, 315 (Fla. 1961), and so may we, see generally Fed. R. Evid. 201; cf. Cash Inn of Dade, Inc. v. Metropolitan Dade County, 938 F.2d 1239, 1243 (11th Cir. 1991) (minutes of a county commission meeting) (“A district court may take judicial notice of public records within its files relating to the particular case before it or other related cases.”).

The complete figures for all 24 punch card counties, which are contained in Chart C in the appendix to this opinion, show a combined 3.92 % “non-vote” or “no vote” rate in those counties. The complete figures for all 41 marksense or optical scan counties, which are contained in Chart F in the appendix to this opinion, show a combined 1.43% no vote rate in those counties. (The number of punch card counties added to the number of optical scan counties equals 65 instead of 67, because one county uses a lever machine system of voting and another uses paper ballots counted by hand.).

The complete figures show us that the true difference between the no vote rates of the punch card and optical scan counties is 3.92 % minus 1.43%, or 2.49 %, and not the difference that Ausman’s incomplete figures show (3.2 % minus .40 %, or 2.8%). The complete figures still show a significant difference between optical scan and punch card counties considered as a whole, but the complete figures also show that in the optical scan counties the no vote rate is not .40 %, which the Florida Democratic Party’s brief tells us “is to be expected,” but instead is 1.43%, or three times the Party’s “expected” rate.

77 caused thousands of votes to go uncounted. The only means whereby those

uncounted votes can be examined is to discern the intent Florida’s voters is (sic)

through a manual recount auditing process.” Response of Intervenor/Appellee the

Florida Democratic Party In Opposition to Appellants’ Emergency Motion for

Injunction Pending Appeal at 7, Touchston, No. 00-15985 (filed in the 11th Cir.

Nov. 16, 2000). In any punch card county where manual recounts are not

undertaken, the Party says, “outright disenfranchisement” occurs. See id. at 40

(“Each of the county standards employed [in the Palm Beach and Broward County

manual recounts] was, thus, a vast improvement over the outright

disenfranchisement that results from machine undercounts caused by hanging and

dimpled chads.”).

If the Florida Democratic Party’s theory is not valid, then the manual

recounts it requested and any change in votes resulting from those manual recounts

would amount to stuffing the ballot boxes in the selected counties with illegal or

non-existent votes, and counting those bogus votes would be unconstitutional for

that reason. See Baker v. Carr, 369 U.S. 186, 208, 82 S.Ct. 691, 705 (1962)

(recognizing that the right to vote is infringed by false tally or by stuffing the ballot

box); Roe I, 43 F.3d at 581. But, as I have explained, the Democratic Party insists

that a manual recount actually results in the counting of intended votes that would

78 not be detected by machine, and it has put in the record numerous affidavits

supporting that view. The Florida Supreme Court seems to have embraced the

theory as well by interpreting “error in the vote tabulation” in Fla. Stat. §

102.166(5) to include a discrepancy between a machine count and a sample manual

recount in a punch card county. See generally Palm Beach County Canvassing Bd.

v. Harris, ___ So.2d ___, 2000 WL 1725434, at *5-6 (Fla. Nov. 21, 2000),

vacated, Bush v. Palm Beach County Canvassing Bd., 531 U.S. ___, ___ S. Ct.

___, No. 00-836 (Dec. 4, 2000) (per curiam). Because the state high court did so,

and because the theory is a necessary premise of the manual recounts the Party

requested in the selected counties, I accept as a fact for present purposes the

proposition that manual recounts of punch card ballots will result in intended votes

being counted that otherwise would not have been if the process had stopped with

machine tabulation.

If manual recounting had been conducted in all the counties using the punch

card voting system so that all voters who were at risk of having their intended

votes disregarded were protected to generally the same extent by the corrective

process, there would be no federal constitutional violation, at least if we assume (as

I will for purposes of this analysis) that the standards applied in the recount were

accurate, consistent, and fair enough to satisfy due process. But manual recounts

79 did not occur in all of the punch card counties. Not by a long shot. Instead, the

Florida Democratic Party requested and, in conjunction with state officials and

using administrative processes sanctioned by state law, brought about a selective

manual recount. The process which the Party insists corrects machine errors and

ensures that the will of voters is ascertained, that voters are not disenfranchised by

defective technology, was requested in only 3 of Florida’s 24 counties that suffer

from the punch card malady, the 3 being Broward, Palm Beach, and Miami-Dade.

No recount was requested or undertaken in the remaining 21 Florida punch card

counties: Collier, Desoto, Dixie, Duval, Gilchrist, Glades, Hardee, Highlands,

Hillsborough, Indian River, Jefferson, Lee, Madison, Marion, Nassau, Osceola,

Pasco, Pinellas, Sarasota, Sumter, and Wakulla.

The manual recounts have been completed in Broward and Palm Beach

counties, and the resulting additional votes from Broward County have been added

to the statewide totals. Whether part or all of any corrections brought about by the

manual recounts in Palm Beach and Miami-Dade Counties will be added to the

statewide totals as a result of other ongoing litigation in state court remains to be

seen. Given the fluidity of events, I will assume for the remainder of this opinion

that the manual recount results from all 3 of the selected counties will be added to

the statewide totals. However, irrespective of what is decided in the state litigation

80 involving Palm Beach and Miami-Dade Counties, my conclusion remains the same

because any difference in degree of selectivity between one, two, or three counties

being manually recounted and the remainder of the 24 punch card counties not

being recounted is immaterial under the applicable constitutional principles. The

difference between one, two, or three manual recounts being conducted may affect

the result of the election, but the Constitution forbids violations of voters’ equal

protection rights even when those violations do not change the outcome of the

election. See infra at 112-113.

The voters who for whatever reason did not succeed in dislodging the chad

next to their choice for President had their votes counted in Broward County and

may eventually have their votes counted in the 2 other selected counties, but the

voters in all of the other 21 punch card counties who applied the same pressure on

the stylus and brought about the same effect, or lack of intended effect, on the chad

connected with their choice for President did not have their votes counted. Under

the Florida Democratic Party’s theory of punch card undercounting, thousands of

similarly situated Florida citizens who intended to vote for President were thwarted

in their efforts by defective technology, perhaps combined with a bit of personal

carelessness, and whether their intended votes count has been made to depend

solely upon the county in which they live. If they live in Broward County (or

81 maybe in Palm Beach or Miami-Dade Counties, too), their votes count; but if they

live in any of the other punch card counties, they do not. The one and only

difference is in which of the 24 punch card counties they live.

“A citizen’s right to a vote free of arbitrary impairment by state action has

been judicially recognized as a right secured by the Constitution, when such

impairment resulted from dilution from a false tally, or by a refusal to count votes

from arbitrarily selected precincts, or by a stuffing of the ballot box.” Baker v.

Carr, 369 U.S. 186, 208, 82 S.Ct. 691, 705 (1962) (internal citations omitted);

accord Reynolds v. Sims, 377 U.S. 533, 555, 84 S.Ct. 1362, 1378 (1964) (“And

the right of suffrage can be denied by a debasement or dilution of the weight of a

citizen’s vote just as effectively as by wholly prohibiting the free exercise of the

franchise.”) (footnote omitted).

For at least a quarter of a century, it has been established that “[d]iluting the

weight of votes because of place of residence impairs basic constitutional rights

under the Fourteenth Amendment just as much as invidious discriminations based

upon factors such as race, or economic status.” Reynolds, 377 at 566, 84 S.Ct. at

1384 (internal citations omitted). As the Supreme Court explained in Reynolds,

“Overweighting and overvaluation of the votes of those living here has the certain

effect of dilution and undervaluation of the votes of those living there.” Id. at 563,

82 84 S.Ct. at 1382. The Constitution prohibits states from weighting votes

differently based on the voters’ place of residence. The Supreme Court enforced

this prohibition in Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801 (1963), when it

struck down the county unit system the Georgia Democratic Party used in it

primary elections. Under that complicated system every citizen got one vote, but in

the final analysis some votes mattered more than others – they counted more –

and the difference was based upon the counties in which the voter lived. Id. at

370-72, 83 S.Ct. at 803-04. The Court held that the Constitution prohibits such

selectivity. Id. at 380-82, 835 S.Ct. at 808-09.

Another variation on selective weighting of franchise by county of residence

was presented to the Court in Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493

(1969). That case involved an Illinois law that required a candidate seeking a place

on the statewide ballot to present a nominating petition containing the signatures of

at least 25,000 voters. That basic requirement was not a constitutional problem,

but a proviso that also required the nominating petition to include the signatures of

200 or more voters from each of at least 50 counties was a problem. Id. at 815, 84

S.Ct. at 1494. Illinois adopted that proviso in order to ensure that any candidate

who got on its statewide ballot had at least minimal state-wide support, because

“[a]n elected official on the state level represents all the people in the state,” and

83 “[s]uch representatives should be aware of and concerned with the problems of the

whole state and not just certain portions thereof.” Moore v. Shapiro, 293 F. Supp.

411, 414 (N.D. Ill. 1968) (three-judge court), rev’d sub nom. Moore v. Ogilvie,

394 U.S. 814, 893 S.Ct. 1493 (1969). The geographic-spread proviso in Illinois’

nominating petition requirement was unquestionably “an expression of rational

state policy,” Moore v. Shapiro, 293 F. Supp. at 414, but that did not save it from

being struck down.

The problem with the Illinois proviso, the Supreme Court explained in

Moore, was that it discriminated against voters residing in the more populous

counties of the state in favor of those residing in the less populous counties. The

constitutional math went like this:

Under this Illinois law the electorate in 49 of the counties which contain 93.4 % of the registered voters may not form a new political party and place its candidates on the ballot. Yet 25,000 of the remaining 6.6 % of registered voters properly distributed among the 53 remaining counties may form a new party to elect candidates to office. ... It, therefore, lacks the equality to which the exercise of political rights is entitled under the Fourteenth Amendment.

Id. at 819, 89 S.Ct. at 1496. Although the selective weighting of the franchise

accomplished by the proviso involved in Moore was more sophisticated and less

direct, and as a result less obvious, than the laws struck down in Reynolds v. Sims,

84 it still failed to “pass muster against the charges of discrimination or of

abridgement of the right to vote.” Moore, 394 U.S. at 818, 89 S.Ct. at 1496.

Given the fertility of the human mind when focused upon political

objectives, denial or debasement of the franchise can be accomplished in myriad

ways. But whatever the method or means used to count, weigh, or value some

votes differently from others, however sophisticated or indirect the device, the

Constitution is up to the task. See Reynolds, 377 U.S. at 563, 84 S.Ct. at 1382

(“One must be ever aware that the Constitution forbids ‘sophisticated as well as

simpleminded modes of discrimination.’”) (citation omitted). Because of the

central importance of the right to vote in our system of representative democracy,

“any alleged infringement of the right of citizens to vote must be carefully and

meticulously scrutinized,” id. at 562, 84 S.Ct. at 1381, and that is the duty of the

courts.6

6 The Attorney General of Florida argues to us that in judging the selective manual recounts at issue in this case under the Equal Protection Clause we ought not apply strict scrutiny but, instead, should apply a lesser standard, and he cites Burdick v. Takushi, 504 U.S. 428, 112 S.Ct. 2059 (1992), and Fulani v. Krivanek, 973 F.2d 1539 (11th Cir. 1992), for that proposition. See Supplemental Brief of Appellee Attorney General of Florida at 4-7, Siegel, No. 00-15981 (filed in the 11th Cir. Nov. 28, 2000). However, his argument, and those citations, miss the point. Burdick and Fulani are ballot-access cases, not cases involving different treatment or weight given to votes cast. In Reynolds, which did involve different treatment of votes cast, the Supreme Court said that the proper standard was careful and meticulous scrutiny. 377 U.S. at 561-62, 84 S.Ct. at 1381.

The question is actually less one of the degree of scrutiny than it is a straightforward inquiry into whether the votes of otherwise similarly situated voters are being treated or

85 Of course, many cases dealing with sophisticated debasements of the right

to vote have political overtones, and that is no less true here than usual. The

Supreme Court was presented in Reynolds with the argument that it ought to stay

its hand and keep out of the political thickets involved in that case. To that

suggestion the Court responded: “Our answer is this: a denial of constitutionally

protected rights demands judicial protection; our oath and our office require no less

of us.” Id. at 566, 84 S.Ct. at 1384. That is a good answer.

In order to apply the principles of these decisions to the facts of the cases

before us, I turn now to a closer examination of the selection of the 3 counties in

which a manual recount was requested.7 Acting pursuant to Fla. Stat. §

weighted differently because of where they live in the state. If that occurs, then there is a violation of the equal protection rights of the voter even if there is a rational purpose for the discrimination, as there was in Moore v. Ogilvie. 7 There has been some discussion by the parties about full or partial manual recounts that were undertaken in at least 2 (Gadsden and Seminole) and possibly 3 (Polk) counties that use the marksense or optical scan voting system. The parties agree that those manual recounts were not requested by any candidate or political party, but were instead initiated by local canvassing boards during the period for the statewide automatic machine recount undertaken pursuant to Florida law. The circumstances relating to those recounts and any problem that may have led to them are unknown in large part because neither of these two cases contains a claim or counterclaim concerning those recounts, and the canvassing boards involved are not parties to either lawsuit.

Those recounts do not affect my analysis because they occurred in optical scan counties, were not conducted at the request of a political party or candidate, and may have been undertaken as a result of local problems, as was the case with Volusia County, which also uses the optical scan system. See supra n.2. In any event, even if there were unconstitutional selectivity in the choice of those 3 optical scan counties, that would not lessen the violation of the Equal Protection Clause that occurred when the Florida Democratic Party selected 3 of the 24 punch card counties for manual recounts.

86 102.166(4), the Democratic Party filed written requests for manual recounts in

Broward, Palm Beach, and Miami-Dade Counties, and no other punch card

counties. Siegel, Fla. Dem. App. at tabs 1, 3 & 5. There were two common

grounds stated in each of those 3 written requests. One ground given in all 3

requests was that the punch card system with its chads created a risk that intended

votes had not been counted (“undervotes”) or actually did result in undervotes, a

problem the requests said could be corrected by a manual recount with its attendant

visual inspection of the cards. The other stated ground in all 3 requests was that

the election results in Florida showed that the race for President was very close. No

other grounds were given in the manual recount requests.8 See id.

8 There is one exception to that statement. The request for a manual recount in Palm Beach County contained another ground. It was stated in the Palm Beach recount request that the particular configuration of the ballot in that county (the so-called “butterfly ballot”) had confused Palm Beach’s voters, producing two bad results: a substantial number of votes were disregarded because more than one choice was punched in the presidential race; and some voters may have inadvertently voted for someone other than their true choice. See Siegel, Fla. Dem. App. at tab 1.

That problem cannot explain or justify why the Democratic Party selected the 3 punch card counties that it did. First, neither Broward or Miami-Dade Counties used a butterfly ballot, and there was no voter confusion reported in the request for manual recounts filed in either of those counties. Second, the purpose of a manual recount in a punch card county is to find intended votes that the tabulating machine did not pick up because a chad was not sufficiently punched out. Any ballot in which the tabulating machine picked up two votes cast for the same office would be one in which the voter had cleanly punched out not one but two chads, or the machine would not have read it as two votes. Instead of helping cure that “overvote” problem, a manual recount searching for additional votes in the form of dimpled, pregnant, or swinging chads not picked up by the tabulating machine could only aggravate the problem. That is precisely the concern that the Horowitz intervenors, a group of Palm Beach voters who supported the Democratic Party’s nominee in the election, expressed in the district court. See

87 The problem with machine tabulating of punch card ballots is common to

counties that use the punch card system. The Democratic Party has never

contended to the contrary, but instead has insisted that the problem is inherent in

punch card technology. For that reason, the existence of a punch card voting

system cannot be a basis for differentiating the 3 counties that were selected from

the 21 that were not. And, of course, the fact that the statewide totals in the race

for President were extremely close was a common fact, and therefore could have

served as grounds for a recount in any of the other 21 punch card counties. There is

nothing in the reasons that the Party gave for requesting a manual recount in the 3

selected counties that explains, let alone justifies, the discrimination in favor of

those 3 punch card counties and against the other 21. In order to give the Party the

benefit of the doubt and to consider all the possibilities, I will now look elsewhere

for an explanation.

Charts A - F, which are attached as appendices to this opinion, contain

population and other demographic data, as well as relevant vote data on a county-

Siegel, Hearing Trans. at 108.

As to the Palm Beach voters who allegedly inadvertently voted for the wrong candidate because they were confused, a visual inspection of a punch card ballot showing a hole clear enough for the tabulating machine to have picked it up could not reveal whether at the time the hole was punched the person doing the punching thought it would count as a vote for another candidate.

88 by-county basis.9 That vote data represents things as they stood on November 9,

2000, after the automatic machine recount required under Fla. Stat. § 102.141(4)

had been conducted. That is the relevant vote data for our purposes, because it

reflects the facts as of the time the Florida Democratic Party filed its manual

recount requests in Broward, Miami-Dade, and Palm Beach Counties on November

9, 2000.

Chart A shows that the 3 counties selected by the Democratic Party for a

manual recount share these characteristics: 1) they are the 3 most populous

counties in the State of Florida; 2) they are the 3 counties in which the Party’s

nominee, Vice-President Al Gore, received the largest number of votes; and 3) in

each of them he received substantially more votes than his opponent, Governor

Bush.

The theory underlying the manual recount, as I have already explained, has

always been that the punch card system of voting necessarily and inevitably results

in some intended votes not being picked up by the tabulating machine. The Florida

Democratic Party has never suggested that its selection of counties for manual

recounts was based upon any county-by-county variation in either the way the

punch card system operates or in its rate of accuracy. Instead, the consistent

9 We can take judicial notice of that vote data, which is from the records the Florida Secretary of State keeps as required by law and pursuant to her official duties. See supra n.5.

89 position of the Party, which is generally supported by the affidavits it submitted in

the district court, is that every time the punch card system is used there will be

intended votes that are not counted by the tabulating machine. See supra at 72-77.

Given the stated justification that the manual recounts were necessary in Broward,

Miami-Dade, and Palm Beach Counties because those counties used the punch

card system, the more relevant focus is on the population and voting data from all

of Florida’s 24 punch card counties. Chart B shows that data. Of course, because

the 24 punch card counties are a subset of all of Florida’s 67 counties, the

characteristics that distinguish the 3 counties chosen by the Party on a statewide

basis also distinguish them in relation to the other 21 punch card counties: those 3

are the most populous and vote-rich of all the punch-card counties, and in each of

them the Party’s nominee received substantially more votes than his principal

opponent.

Not only that, but we also see from the data contained in Chart B another

conspicuous fact. The 3 counties the Florida Democratic Party selected for manual

recounts are 3 of the 4 punch-card counties that gave its nominee the highest

percentage of the vote cast among the two opposing Presidential candidates. Those

percentages are as follows: Broward (68.55%); Palm Beach (63.81%); and Miami-

Dade (53.18%). No other punch card county gave the Party’s nominee a greater

90 percentage of its vote than Broward and Palm Beach Counties, and only one punch

card county gave the Party’s nominee a greater percentage of its vote than Miami-

Dade County did. That lone exception is sparsely populated Jefferson County

which, although favoring the Party’s nominee with 55.10 % of its vote, cast a total

of only 5,519 votes for the nominees of both major parties (compared, for example,

to the 618,335 votes cast for them in Miami-Dade County). Because so few votes

were cast in Jefferson County, that county offered little prospect for finding

enough uncounted votes to make a difference. In effect, the voters of Jefferson

County were too few in number to matter in view of the Party’s objective, which

was to change the election result that had been reported to that date.

Given the theory of the recount – finding intended votes that were not

counted by the punch card system – the most relevant data of all would be the

percentage of votes that were intended but not counted. We do not have that, but

neither did the Florida Democratic Party when it selected the punch card counties

in which to request recounts. We do have the “no vote” data, which shows the

difference between the total number of voters who cast a ballot and the total votes

cast for any Presidential candidate. In other words, the no vote data shows the

number of ballots in which no vote for President was counted either because the

tabulating machine did not pick up from the punch card any vote for President, or

91 because it picked up two or more votes for President on the same card resulting in

no vote for President being counted.

Chart C ranks the punch card counties by percentage of no votes in the

Presidential race. If Palm Beach, Miami-Dade, and Broward Counties had been

selected for manual recounts because of problems resulting in no vote for

President being picked up by the tabulating machines, those 3 counties would have

the highest no vote rates. They do not. Chart C shows that there are 7 punch card

counties with a higher percentage of no votes in the Presidential race than Palm

Beach County, yet none of them was selected for manual recounts. The chart also

shows that 10 punch card counties have a higher percentage of no votes than

Miami-Dade County, but none of them was selected for a manual recount. And as

for Broward County, there were 17 punch card counties with a higher no vote rate

that were not selected for manual recounts. In fact, Broward is tied for the fourth

smallest percentage of no votes for President among all of the 24 punch card

counties, yet the Florida Democratic Party still selected it for a manual recount.

One of the many affidavits the Florida Democratic Party submitted in the

district court stated that “two groups of citizens, the elderly and minorities, are

more prone to have problems on this system than the rest of the population.”

Siegel, Aff. of Ion V. Sancho, Fla. Dem. App. at tab 9. Perhaps that opinion rests

92 upon derogatory stereotypes that federal courts should not countenance. Even

assuming, however, that there is some factual basis for that opinion and that we

should consider the possibility, the problems that any group, including the elderly

and minorities, have with punch card voting should be captured to some extent in

the no vote data contained in Chart C. But as we have seen, the Party’s selection of

the 3 counties cannot be justified on the basis of that data.

Moreover, Chart D, which ranks the punch card counties by percentage of

population over the age of 65, shows that 7 of those counties that were not selected

for manual recounts have a greater percentage of their population in that age

category than Palm Beach County does; 11 not selected for manual recounts have a

greater percentage in that age category than Broward County does; and 13 of them

have a greater percentage in that age category than Miami-Dade County does. The

Florida Democratic Party’s selection of punch card counties for manual recounts

could not have been based upon the percentage of elderly in each county’s

population.

As for “minorities” having more problems with punch card voting, it is

unclear exactly what the Florida Democratic Party’s affiant meant by “minorities.”

Chart E shows that if he meant to include both blacks and Hispanics in that

grouping, Miami-Dade County’s population does have a higher percentage of

93 minorities than any other punch card county. But the chart also shows that 6 punch

card counties that were not selected for manual recounts have a higher percentage

of minorities in their populations than Broward County, which was selected. And it

shows that 8 punch card counties that were not selected for manual recounts have a

higher percentage of minorities in their population than Palm Beach County which

was also selected.

So, the facts we have about the Florida Democratic Party’s selection of the

counties in which a manual recount would be undertaken in order to ensure that

voters were not disenfranchised by systemic problems with punch card technology

or by carelessness, are these. The selection was not based upon the rate of punch

card error – the no vote rate – nor was it based upon the relative percentage of

senior citizens or minorities in each county’s population. Instead, the defining

characteristic of the 3 punch card counties chosen to undertake a manual recount is

that they are the 3 most populous counties in the state, all of which gave the Party’s

Presidential nominee a higher percentage of the vote than his opponent.

Of course, none of this is surprising. We expect political parties to act in

their own best political interest, and the 3 most populous counties that had voted

for its nominee presented the Florida Democratic Party with its best prospects for

turning the election around. It would not have served the Party’s goal of electing

94 its nominee for President for it to have sought the intended but unsuccessful votes

in those punch card counties that went for the other party’s nominee, Governor

George W. Bush. The voters in 17 of the 24 punch card counties favored Governor

Bush. See Chart B. Examples include Hillsborough County (51.6 % of its 350,317

Bush/Gore votes went for Bush) and Collier County (66.89 % of its 90,351

Bush/Gore votes went for Bush). Id. Making sure that every intended vote was

counted in those 17 counties that favored Bush over Gore, over two-thirds of the

total number of punch card counties, was not the way for the Florida Democratic

Party to get its candidate elected.

Nor would it have been efficient for the Florida Democratic Party to expend

its manual recount efforts in vote-poor counties like Jefferson, whose voters did

express a pronounced preference for the Party’s nominee. Loyal Democrats though

they may be, the citizens of Jefferson County suffered from the misfortune of

living in a county whose population was so small that the total votes it cast for the

two principal candidates for President were only 1.31 % of those cast in Palm

Beach County, only .98 % of those cast in Broward County, and only .89 % of

those cast in Miami-Dade County. That is too few to have mattered when it came

to the Party’s goal of changing the results of the statewide election.

95 There may have been another factor at work in the Florida Democratic

Party’s selection of the 3 most populous counties as the ones in which to request a

manual recount. State law encourages, if not requires, manual recount choices to

favor counties with greater vote totals over those with lesser vote totals. Under the

statute, once a sample recount of at least 3 precincts and 1 percent of the votes cast

in the county has been conducted, the county canvassing board can manually

recount all the ballots only “[i]f the manual recount [sample] indicates an error in

the vote tabulation which could affect the outcome of the election.” Fla. Stat. §

102.166(5). Of course, the larger the number of votes in a county the greater the

likelihood that a complete manual recount in that county alone will affect the

election, and under § 102.166(5) that appears to be the measuring rod for

undertaking a complete manual recount. Because the number of votes obviously

varies in relation to a county’s population, there is a greater likelihood that a

complete manual recount in a more populous county will change the election

result. Since the possibility of a different statewide result appears to be a

prerequisite for a complete manual recount in a county, the statute encourages and,

in some cases – where the pre-manual recount statewide difference in votes is

larger than the votes that could be picked up by a full manual recount in a less

populated county – may require discrimination against less-populous counties.

96 Consider the present case. After the statewide machine recount mandated by

Florida law, the statewide difference between the two Presidential candidates was

300 votes. It would be far easier for the Florida Democratic Party to show that that

margin could be erased by a manual recount in heavily populated Miami-Dade

County, which had reported a total of 618,335 votes for the two candidates, than

it would be for the Party to show the same thing in sparsely populated Jefferson

County, where only 5,519 votes were cast for the two candidates. In fact,

depending upon the initial margin of victory, it could well be impossible to get a

complete manual recount in many of the punch card counties, regardless of which

candidate the voters in that county favored.10

It may be that the Florida Democratic Party would have chosen the 3 punch

card counties it did even without the requirement in Fla. Stat. § 102.166(5) that the

sample recount conducted in each county show that the outcome of the election

10 The discrimination that results from making a manual recount dependent upon whether the recount difference in the county could change the statewide result can also be illustrated by a fairly simple hypothetical. Suppose the statewide difference was Bush over Gore by 300 votes, and a sample manual recount showed that a full recount in Miami-Dade would probably result in a net gain for Gore of 400 votes. Suppose further that in each of the 17 punch card counties that voted for Bush over Gore a sample manual recount showed that conducting a full manual recount would result in net gains for Bush of 25 to 100 votes in each of those 17 counties for a combined total net gain of 900 votes for Bush. As Fla. Stat. § 102.166(5) is written, it appears that complete manual recounts could not occur in those 17 less-populated counties, because the projected change in none of them, standing alone, would be enough to alter the statewide result, even though the combined total of their projected changes would have swung the election result back to Bush.

97 could be changed by continuing the recount in that county. Somewhat to its credit,

the Party has never denied (at least not in federal court during litigation of these

two cases) that it chose for manual recounts the 3 counties that it did, and not

others, because those counties are populous, i.e., vote rich, and their voters had

expressed a preference for its Presidential nominee. In our Court alone, the Party

filed over 180 pages of briefs and used more than 40 minutes of oral argument time

to explain its position. Never once in its briefs or in its oral arguments did the

Party suggest that its selection of the 3 punch card counties out of 24 for a manual

recount was based on anything other than partisan self-interest. That the

Democratic Party predictably acted in its own best interests in using the state law

recount machinery to ensure that intended votes which would otherwise be

disregarded would only be counted in counties favoring its candidate does not end

the inquiry. There is the matter of the Constitution.

When a political party uses state machinery and exercises prerogatives it is

given under state law to influence the counting or alter the effect of votes, it is a

state actor subject to the same constitutional constraints that protect citizens from

the state and its officials. See Terry v. Adams, 345 U.S. 461, 481, 73 S.Ct. 809,

819 (1953) (white primary case) (“[A]ny part of the machinery for choosing

officials becomes subject to the Constitution’s restraints.”) (citations and

98 quotations omitted). The manual recount provision contained in Fla. Stat. §

102.166(4), and the selectivity it encourages or permits political parties to exercise

in bringing about recounts, is an integral part of the election process in Florida, as

we have seen in recent days, and the Supreme Court has held that “[a]ll procedures

used by a State as an integral part of the election process must pass muster against

the charges of discrimination or of abridgement of the right to vote.” Moore v.

Ogilvie, 394 U.S. 814, 818, 89 S.Ct. 1493, 1495 - 96 (1969).

The Florida manual recount statute gives government officials some

discretion over whether to conduct a manual recount, see Fla. Stat. § 102.166(4)(c)

(“The county canvassing board may authorize a manual recount”), and government

officials are intimately involved in the actual recount procedure itself. Those two

facts reinforce the conclusion that the Florida Democratic Party’s selection of the

counties in which manual recounts could occur is state action subject to

constitutional scrutiny. See Dennis v. Sparks, 449 U.S. 24, 27 - 28, 101 S.Ct. 183,

186 (1980) (“[T]o act ‘under color of state law’ for § 1983 purposes does not

require that the defendant be an officer of the State. It is enough that he is a willful

participant in joint action with the State or its agents. Private persons, jointly

engaged with state officials in the challenged action are acting . . . ‘under color’ of

law for purposes of § 1983 actions.”) (citation omitted); Gray v. Sanders, 372 U.S.

99 368, 374 - 75, 83 S.Ct. 801, 805 (1963) (“We agree with that result and conclude

that state regulation of this preliminary phase of the election process makes it state

action.”) (citation omitted). What the State of Florida and its officials cannot

constitutionally do alone, the State and the Florida Democratic Party acting jointly

cannot do either.

If Florida enacted a statute that provided a manual recount procedure for

correcting the undervote caused by the use of the punch card voting system, but

provided that the corrective procedure could be invoked only in the 3 most

populous counties of the state, no one would question that such a provision would

be unconstitutional.11 And it would be unconstitutional no matter how rational the

purpose of the statute. Suppose, for example, that the state thought it was more

efficient to conduct manual recounts in the really big punch card counties, and not

worth the effort to do it in any little, sparsely populated, or vote-poor punch card

counties. I hope that no judge on this Court would suggest such a law would be

constitutionally permissible.

11 The hypothetical statute is not far removed from the statute that Florida does have. As I have previously pointed out, the statute appears to permit a full manual recount only if the sample recount indicates that a full recount in that county could affect the election result. Fla. Stat. § 102.166(5) (the county canvassing board can manually recount all the ballots only “[i]f the manual recount [sample] indicates an error in the vote tabulation which could affect the outcome of the election”). Because of that apparent requirement, the statute encourages in every case, and may require in some cases, that the manual recounts be requested in more populous, vote-rich counties.

100 The reason we would or should be unanimous in holding such a law

unconstitutional is that states cannot treat votes differently depending upon the

counties in which the voters live. The constitutional wrong in that hypothetical

case and in the present case is the mirror image of the one in Moore v. Ogilvie,

394 U.S. 814, 89 S.Ct. 1493 (1969). Just as the Constitution forbids a state from

counting or weighting votes less because they come from more populated

counties, it also forbids a state from counting or weighting votes less because they

come from more sparsely populated counties. Yet that is precisely what the

manual recounts in the 3 selected Florida counties does.

Recall that the central fact underlying the theory behind the manual recounts

in Broward, Palm Beach, and Miami-Dade Counties is that the punch card system

of voting necessarily and inevitably results in some intended votes not being

counted unless there is a manual recount. See supra at 72-77. With the selective

manual recounts that the Florida Democratic Party and government officials have

jointly brought about, voters are treated differently depending upon where they

live. There are two sets of punch card voters whose efforts to vote are not picked

up by the tabulating machines. One set, the favored one, lives in Broward, Palm

Beach, and Miami-Dade Counties. The second set has the misfortune to live in the

other 21 punch card counties. The votes of the first set count; the votes of the

101 second set do not. Two voters using the same effort to press an identical stylus

against a punch card and bringing about the identical effect on a chad next to a

Presidential candidate are treated differently. See O’Brien v. Skinner, 414 U.S.

524, 529, 94 S.Ct. 740, 743 (1974) (holding unconstitutional a statute under which

two citizens “sitting side by side in the same cell may receive different treatment as

to voting rights”). One vote is counted, the other not. The sole reason is that the

Florida Democratic Party, acting with the authority given to it by the state, and

pursuing its own political interests, chose to have one vote counted and the other

not.

The matter was aptly put in a letter Florida Attorney General Robert

Butterworth wrote to the Chair of the Palm Beach County Canvassing Board on

November 14, 2000. The letter referred to the “extremely serious” legal issues that

would arise if manual recounts were conducted in some counties but not others.

He said that “a two-tier system for reporting votes would result,” and:

A two-tier system would have the effect of treating voters differently, depending upon what county they voted in. A voter in a county where a manual count was conducted would benefit from having a better chance of having his or her vote actually counted than a voter in a county where a hand count was halted.

Touchston, Hearing, Ex., Trans. at 9-16, 44-45 & 48. That is exactly the situation

resulting from the Florida Democratic Party and Florida’s state or local officials

102 acting jointly to manually recount votes in only 3 of the 24 punch card counties. In

that letter, Attorney General Butterworth went on to say that he felt “a duty to warn

that if the final certified total for balloting in the State of Florida includes figures

generated from this two-tier system of differing behavior by official canvassing

boards, the State will incur a legal jeopardy, under both the U.S. and state

constitutions.” That “legal jeopardy” under the United States Constitution is what

this litigation is about.12

12 Butterworth, who is the co-chair of the Florida campaign for the Democratic nominee for President, see Touchston, Hearing Trans. at 10, wrote the letter and an attached advisory opinion in order to persuade Palm Beach County to manually recount its punch card ballots. The letter referred to the possibility that Seminole County, which did not use the punch card system, had manually recounted its ballots. The Florida Democratic Party represented to us, however, that the optical scan or marksense system of voting, which is what Seminole County uses, see Chart A, “provides good results” and a no-vote percentage that one would expect to occur naturally, see Brief of Intervenor/Appellee Florida Democratic Party at 23-24, Touchston v. McDermott, No. 00-15985 (filed in the 11th Cir. Nov. 28, 2000). The Party says that system is not plagued by the same problems as the punch card system used in Palm Beach and the 23 other counties.

If manually recounting in one county that does not have a punch card system results in “legal jeopardy” because voters are being treated differently in that county from voters in punch card counties, then conducting manual recounts in only a few of the punch card counties also treats similarly situated voters in the punch card counties differently, and results in “legal jeopardy.”

The Butterworth letter does speak of the different treatment being a result of “differing behavior of official canvassing boards,” but it was the Florida Democratic Party that chose which county canvassing boards could undertake a manual recount pursuant to Fla. Stat. § 102.166(4). And, as I have already explained, Supreme Court precedent establishes that in choosing those counties, the Party was engaged in state action, and could not do what the Constitution forbids government officials from doing.

103 If we accept what the Florida Democratic Party has told us, we can even put

an estimate on the number of affected voters who are being discriminated against

in the manual recount: the number who tried to vote for a Presidential candidate

but were prevented from doing so by the punch card system and for whom no

effort is being made to ascertain their true intent. The Party says that the optical

scanner system used in most Florida counties provides good results and the

undervote in counties using that system is only .40 %, which the Party says is

about what we should expect to occur naturally, i.e., by virtue of voter intent, in a

Presidential election in Florida. Brief of Intervenor/Appellee Florida Democratic

Party at 23-24, Touchston v. McDermott, No. 00-15985 (filed in the 11th Cir. Nov.

28, 2000). Yet the undervote in punch card counties, the Party says, is

approximately 3.2%. Id. at 10. Thus, the difference in the undervote rate caused

by the punch card system, if we accept the Party’s figures, is approximately 2.8% .

The total number of ballots cast in the 21 punch card counties in which no manual

recount is being conducted is 2,013,666. See Chart C.

Applying the Party-supplied machine-caused-undervote rate of 2.8% to that

figure gives us an estimated 56,382 voters in the non-selected punch card counties

who tried to cast their votes but were thwarted by chad problems of one kind or

104 another.13 It is those more than 56,000 voters whom the Florida Democratic Party,

in conjunction with the state, is discriminating against in its selective manual

recount. Unlike their similarly situated fellow citizens in the 3 most populous

counties, no effort is being made to ascertain their true intent – thereby re-

enfranchising those whose attempts to vote were thwarted by defects in the

technology – by manually inspecting their punch card ballots. As the Supreme

Court held in Reynolds v. Sims, “[w]eighting the votes of citizens differently, by

any method or means, merely because of where they happen to reside, hardly

seems justifiable. One must be ever aware that the Constitution forbids

‘sophisticated as well as simpleminded modes of discrimination.’ ” 377 U.S. at

563, 84 S.Ct. at 1382 (citations omitted).

The same analysis applies and the same conclusion is reached , of course, if

one views the selection factor as being not the population of the counties but

instead the number or percentage of votes cast for the Florida Democratic Party’s

13 As I have already pointed out, the Florida Democratic Party’s estimated 2.8 % undervote difference between the optical scan and punch card counties was based upon incomplete data, and we now know from complete data that the difference in “no vote” rates is actually 2.49 %. See supra n.5. However, if the results from Broward, Miami-Dade, and Palm Beach Counties are excluded, then the rate of no vote in the remaining 21 punch card counties drops from 3.92% to 3.62%. See supra n.5 & Chart C. When the marksense or optical scan no vote rate of 1.43% is subtracted, see Chart F, the resulting difference in no vote rates between the remaining punch card counties and the optical scan counties is 2.19%. Applying that rate to the number of ballots cast in the remaining 21 punch card counties indicates that if the Party’s central theory is correct, there are 44,099 voters in those 21 counties whose intended vote for President was not counted.

105 nominee in the counties (both factors coincided here). Just as a state, and a

political party acting in conjunction with the state, cannot discriminate among

voters based upon the population of their counties, so also they may not

discriminate among voters based upon political opinions and beliefs as expressed

by the candidates for whom those voters cast their ballots. Shifting the focus of the

selection from population to political preference simply adds the weight of the First

Amendment to that of the Equal Protection Clause in prohibiting the selectivity.

Either way there is unconstitutional discrimination against the voters in the punch

card counties not selected for manual recounts. “Their right to vote is simply not

the same right to vote as that of those living in a favored part of the State.”

Reynolds, 377 U.S. at 563, 84 S.Ct. at 1382.

In the face of the constitutional command that votes be treated and weighted

the same regardless of where the voter lives within a state, various of the

defendants respond with several arguments. One thing they argue is that states are

due deference in the way they run elections and, in light of Article II, § 1, cl. 2 of

the Constitution, and 3 U.S.C. § 5, states are due special deference when it comes

to the selection of electors. But states are due no deference if they go about

selecting electors in a way that violates specific provisions of the Constitution,

including the Equal Protection Clause. The Supreme Court has expressly held that

106 the power that Article II gives the states to select electors cannot be exercised in a

way that violates the Equal Protection Clause. See Williams v. Rhodes, 393 U.S.

23, 29, 89 S.Ct. 5, 9 - 10 (1968) (“Nor can it be thought that the power to select

electors could be exercised in such a way as to violate express constitutional

commands that specifically bar States from passing certain kinds of laws. ... We

therefore hold that no State can pass a law regulating elections that violates the

Fourteenth Amendment’s command that ‘No State shall ... deny to any person ...

the equal protection of the laws.’”); accord, Anderson v. Celebreezze, 460 U.S.

780, 795 n.18, 103 S.Ct. 1564, 1573 n.18 (1983). After all, Moore v. Ogilvie,

394 U.S. 814, 89 S.Ct. 1493 (1969), applied the one person, one vote doctrine to

strike down an Illinois statute in a case involving the selection of electors. The

issue is not about Article II or 3 U.S.C. § 5; it is about whether the selective

manual recounts in question violate the Constitution. Because they do, nothing in

Article II and certainly nothing in any federal statute insulate that unconstitutional

action from remedy.14

14 Some of the defendants seek cover from Roudebush v. Hartke, 405 U.S. 15, 92 S.Ct. 804 (1972), but it does not provide any for them. That decision did not address the equal protection rights of voters, nor did it involve the discriminatory application of election laws in general or of recount laws in particular. It decided only the narrow issue of whether a recount of the ballots cast in an election for the United States Senate was a valid exercise of a state’s power to prescribe the times, places, and manner of holding elections pursuant to Article I, § 4, or was instead a forbidden infringement on the power that Article I, § 5 gives the Senate to judge the qualifications of its members.

107 Getting closer to the merits issue, the defendants also argue that Florida law

permits any political party with a candidate on the ballot, or any candidate whose

name appears on the ballot, to file a written request with the county canvassing

board for a manual recount. See Fla. Stat. § 102.166(4)(a). There is no equal

protection problem, they say, because the Republican Party or its candidate could

have requested that manual recounts be conducted in each of the punch card

counties. This argument is not at all persuasive.

As I have already explained, although the Republican Party or its candidate

could have requested a manual recount in any of Florida’s counties, the statute

permits full manual recounts in only those counties in which a sample manual

recount indicates “an error in the vote tabulation which could affect the outcome of

the election.” Fla. Stat. § 102.166(5). Some of the punch card counties are so

sparsely populated, so vote poor, that even if a manual recount had been requested

and a sample recount conducted as provided in Fla. Stat. § 102.166(4)(d), the result

of that sample recount would not have indicated that a full manual recount in the

The opinion in Roudebush does observe that Indiana, along with many other states, had found that the availability of a recount was necessary to guard against irregularity and errors in vote tabulation, and says that “[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.” Id. at 25, 92 S.Ct. at 810 - 11. True enough, but a recount is not any more integral to the electoral process than the actual election itself, and as we have already seen, Article II, § 4 does not permit states to conduct elections in a way that violates a specific constitutional provision such as the Equal Protection Clause. It follows that states cannot conduct recounts in a way that violates that clause, either.

108 county could affect the outcome of the election. So, even if the Republican Party or

its candidate had requested manual recounts in every punch card county, the

process would still have ended up treating some punch card voters differently

based upon the counties in which they lived. The Constitution forbids that.

There is a another, more fundamental flaw in the argument that treating

punch card voters differently depending upon the county of their residence is

permissible because the Republican Party or its candidate could have, but did not,

prevent that difference in treatment. The constitutional rights involved are those of

the voters in the other punch card counties. It is their votes and their constitutional

rights at stake. The voters whose constitutional rights are being violated are not

permitted to request a manual recount. See Fla. Stat. § 102.166(4)(a). There is no

loophole in the Constitution that permits what would otherwise be an

unconstitutional action to occur simply because a third party could have, but did

not, prevent it from occurring. Therefore, the fact that both parties were permitted

to request manual recounts does not shield the selective recounts from

constitutional attack.

Another argument the defendants put forward responds to the criticism of

the previous one. Florida Attorney General Butterworth, who was so concerned in

his November 14, 2000 letter about the “legal jeopardy” that his state would be in

109 if there was a “two-tier” system in which manual recounts occurred in some

counties but not others, a fortnight later filed a brief in this Court telling us there is

nothing to worry about after all. According to Attorney General Butterworth’s

latest position on the subject, manual recounts can be requested or granted under

Fla. Stat. 102.166(4)(a) - (c) in as selective or discriminatory a way as the human

mind can imagine without running afoul of the Constitution. The reason, he says,

is that although a voter cannot request a manual recount at that stage of the election

process, a voter can later file an election contest and try to get the court to conduct

a manual recount as part of that contest.

That argument is unpersuasive. Even assuming that Florida law provides a

mechanism for individual voters to request manual recounts as part of an election

contest, the practical and legal burdens imposed upon an individual who seeks to

contest an election are entirely different, and far more burdensome, than those that

a party or candidate must meet in order to institute an election contest. A request

filed by a political party or candidate before the results are certified merely has to

set out grounds for a manual recount, and the county canvassing board can grant it.

Fla. Stat. § 102.166(4). An election contest, on the other hand, cannot be filed

until after the last county canvassing board certifies results, see Fla. Stat. §

102.168(2), and once it does, a presumption kicks in and weighs against granting

110 any relief in the contest. Under Florida law, “elected officials are presumed to

perform their duties in a proper and lawful manner in the absence of a sufficient

showing to the contrary,” and “there is a presumption that returns certified by

election officials are presumed to be correct.” Boardman v. Esteva, 323 So.2d 259,

268 (Fla. 1976) (citation omitted).

Besides, there is the problem of time. Election contests cannot be instituted

until “after midnight of the date the last county canvassing board empowered to

canvass the returns certifies the results of the election being contested.” Fla. Stat. §

102.168 (2). That might be enough time in ordinary circumstances to file a contest,

have it litigated through the trial and appellate stages of the state court system, win

the right to a manual recount, have any issues arising in that manual recount be

litigated to conclusion, and have the new result accepted. Maybe, but the

circumstances giving rise to these cases are not ordinary. To begin with, the

effective deadline in this case is not some time next year as it might be with most

elections, but instead is December 12, and the drop-dead deadline is December 18,

2000. Not only that, but the Florida Supreme Court extended the time for the last

county canvassing board to certify its results to the Secretary of State from 7 days

after the election, the time specified in Fla. Stat. §§ 102.111 and 102.112, until

November 26, 2000, which is 19 days after the election. See Harris, ___ So.2d at

111 ___, 2000 WL 1725434, at *16, vacated, Bush v. Palm Beach County Canvassing

Bd., 531 U.S. ___, ___ S. Ct. ___, 2000 WL 1769093 (Dec. 4, 2000) (per curiam).

That cut 12 days out of the period that would otherwise have been provided for

conducting an election contest through to conclusion.

We know from the inability of Miami-Dade and Palm Beach Counties to

finish the actual manual recounts in even the extended time the Florida Supreme

Court allotted them, that it would have been impossible as a practical matter for a

voter in, for example, Hillsborough County, a punch card county in which 369,467

ballots were cast in the Presidential election, see Chart C, to file an election

contest demanding a manual recount in that county, try the case before the trial

court, succeed on appeal in time for the canvassing board to conduct and complete

a full manual recount, and then have any issues arising in that recount decided. An

election contest under Florida law is not a practical remedy for voters who have

been discriminated against in the Florida Democratic Party’s selection of punch

card counties in which to request a manual recount.

Even if there were enough time for such manual recounts after the extended

period for the county canvassing boards to report, there is another serious obstacle

to a voter using the Florida election contest procedures to secure a manual recount

in that voter’s county. Except in cases of outright fraud, bribery, or other

112 corruption, or the ineligibility for office of the successful candidate, Florida law

requires that anyone filing an election contest show that correction of the problem

complained about would change the results of the election. See Fla. Stat. §

102.168(3)(c) (“Receipt of a number of illegal votes or rejection of a number of

legal votes sufficient to change or place in doubt the result of the election.”) &

(3)(e) (“Any other cause or allegation which, if sustained, would show that a

person other than the successful candidate was the person duly nominated or

elected to the office.”). If the voter cannot show that the constitutional violation he

suffered changed the result of the election, he has no grounds for contesting the

election under the Florida election statute.

While Florida’s interest in bottom line election results is certainly expedient,

the Constitution demands more than expediency. It is concerned with values other

than the outcome of elections. To say that it is sufficient to remedy only those

constitutional violations that matter to the political parties and their candidates is to

say the rights of voters themselves do not matter. Can anyone seriously suggest

that the Reynolds v. Sims, Gray v. Sanders, and Moore v. Ogilvie doctrines apply

only when election results would be changed? When the Supreme Court in

Reynolds said, “[t]o the extent that a citizen’s right to vote is debased, he is that

much less a citizen,” 377 U.S. at 567, 84 S.Ct at 1384, the Court did not add

113 “unless it makes no difference in the election results.” When the Court said that

“the basic principle of representative government remains, and must remain,

unchanged – the weight of a citizen’s vote cannot be made to depend on where he

lives,” id., surely the Court did not mean for that basic principle to be inapplicable

except where it was outcome determinative for a candidate.

In Moore there was “absolutely no indication in the record that the

appellants could not, if they had made the effort, have easily satisfied Illinois’ 50-

county, 200-signature requirement,” see 394 U.S. at 820 - 21, 89 S. Ct. at

1497(Stewart, J., dissenting). In other words, there was absolutely no indication

that the differential treatment of citizens based upon the counties in which they

lived affected whether any would-be candidate could get on the ballot.

Nonetheless, the Supreme Court did not hesitate to strike down the discrimination

among voters, explaining that “[t]he idea that one group can be granted greater

voting strength than another is hostile to the one man, one vote basis of our

representative government.” Id. at 819, 89 S.Ct. at 1496. The one person, one vote

principle is not so fickle as to depend upon the closeness of an election.

One last argument relating to the merits which is put forward by several of

the defendants is that there is no constitutional violation in selective manual

recounts based upon county of residence, because there are variations among the

114 counties in election systems and different systems give rise to different error rates.

In other words, unless the Constitution mandates that every county use the same

voting system, it logically cannot prohibit selective correction of error rates in

counties that use the same system. But why not? Why are differences in the

number of vote errors that occur as a result of local variations in choice of vote

systems before an election the constitutional equivalent of selective correction of

errors based upon county of residence after the election?

There is no reason to believe that any county would attempt to choose for

itself a voting system with a high error rate in order to disadvantage its citizens

compared to those of other counties. There is every reason to believe that political

parties or candidates will selectively choose the counties in which to initiate the

process of manual recounts based upon how those counties voted and their

population. The intent behind the two actions is different. To understand the

importance of that difference, consider this hypothetical. Suppose a state

legislature mandated the type of voting systems to be used in each county, and

deliberately favored urban counties with low-error systems that would keep down

the undervote, while sticking rural counties with high-error systems that would

increase the undervote in those counties thereby reducing their influence in

statewide elections. Maybe the legislature, dominated by members from the more

115 populous counties, just wanted to keep the country folks in their place. Is there

any doubt that such legislation would be unconstitutional under Reynolds and

related cases? It would be unconstitutional even though the discriminatory choice

occurred on the front end, before the election, and even though it involved

variations in the vote systems used in different counties.

How then can it be constitutionally permissible to make a materially similar,

discriminatory choice on the back end after the election: to favor the voters of

more populous counties who went for one candidate with a process that

ameliorates their undervote, while not applying that process to ameliorate the same

or worse undervote problems in less populous counties that went for the other

candidate? The answer is that it is not constitutionally permissible to discriminate

in favor of the voters of Broward, Palm Beach, and Miami-Dade, or any

combination of those counties, and against the voters in the other 21 punch card

counties when it comes to a post-election remedy of the undervote problem caused

by the voting system technology.

The Florida Supreme Court reminded us that: “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.” Harris, ___ So.2d at ____, 2000 WL 1725434, at *13

116 (footnote omitted). But we also must not lose sight of the constitutional guarantee

of equal protection, which prohibits states from selectively facilitating and

safeguarding the rights of voters based upon where they live in the state. Florida’s

election laws, as applied in this case, run afoul of that prohibition.

Finally, the defendants contend that we need not even decide the merits of

the constitutional claims in this case because the plaintiffs have not suffered an

irreparable injury. They base that assertion on two premises. First, the defendants

maintain that it is inappropriate at this juncture to decide whether permanent

injunctive relief should be issued. I disagree for the reasons I have already stated.

See supra at 71-72, discussing Thornburgh v. Am. Coll. of Obstetricians &

Gynecologists, 476 U.S. 747, 755-57, 106 S.Ct. 2169, 2176 - 77 (1986). Second,

the defendants maintain that there is no equal protection violation unless and until

the outcome of the election is altered by the inclusion of the manually recounted

ballots in Florida’s certified results. But, as I have already explained, the

constitutional harm is inflicted when the ballots of similarly situated voters are

counted and weighted differently, and that harm exists regardless of the outcome of

the election.

The standard for a permanent injunction is essentially the same as for a

preliminary injunction except that the plaintiff must show actual success on the

117 merits instead of a likelihood of success. Amoco Prod. Co. v. Village of Gambell,

480 U.S. 531, 546 n.12, 107 S.Ct. 1396, 1404 n.12 (1987). In addition to

succeeding on the merits, a plaintiff must “demonstrate the presence of two

elements: continuing irreparable injury if the injunction does not issue, and the lack

of an adequate remedy at law.” Newman v. State of Ala., 683 F.2d 1312, 1319

(11th Cir. 1982). Explaining the distinction between “irreparable injury” and

“adequate remedy at law,” our predecessor circuit said:

[T]he essential prerequisite to a permanent injunction is the unavailability of an adequate remedy at law. Irreparable injury is, however, one basis, and probably the major one, for showing the inadequacy of any legal remedy. . . . Often times the concepts of "irreparable injury" and "no adequate remedy at law" are indistinguishable. . . . "[T]he irreparable injury rubric is intended to describe the quality or severity of the harm necessary to trigger equitable intervention. In contrast, the inadequate remedy test looks to the possibilities of alternative modes of relief, however serious the initial injury.”

Lewis v. S. S. Baune, 534 F.2d 1115, 1124 (5th Cir. 1976) (citations omitted).

Here, I believe that the plaintiffs in these two cases have succeeded on the

merits by establishing that the disparate treatment of similarly situated voters

violates the Equal Protection Clause. That constitutional injury to their right to

vote is irreparable, since it “cannot be undone through monetary remedies.”

Cunnigham v. Adams, 808 F.2d 815, 821 (11th Cir. 1987), both because of the

unquantifiable nature of the right to vote as well as its fundamental importance in

118 our system of representative democracy. See Reynolds v. Sims, 377 U.S. 533,

562, 84 S.Ct. 1362, 1381(1964) (the right to vote is "a fundamental political right,

because [it is] preservative of all rights'") (citation and quotations omitted). See

also Northeastern Fla. Chapter of the Assoc. of Gen. Contractors v. City of

Jacksonville, 896 F.2d 1283, 1285 (11th Cir. 1990) (discussing cases in which this

Court has recognized that an on-going violation of the First Amendment or privacy

rights constitutes irreparable injury, and stating that “[t]he rationale behind these

decisions was that chilled free speech and invasions of privacy, because of their

intangible nature, could not be compensated by monetary damages; in other words,

plaintiffs could not be made whole”).

Not surprisingly, there is no suggestion by the defendants that there is an

adequate remedy at law to address the voting-rights injury presented in this case.

See Dillard v. Crenshaw County, 640 F. Supp. 1347, 1363 (M.D. Ala. 1986)

(“Given the fundamental nature of the right to vote, monetary remedies would

obviously be inadequate in this case; it is simply not possible to pay someone for

having been denied a right of this importance.”). There is an irreparable injury to

the right to vote for which there is no adequate remedy at law. Accordingly,

granting the requested injunctive relief is the only appropriate remedy.

119 Appendices

CHART A

All Counties Ranked by Population Total Bush/ Gore County Population1 Vote System2 Bush Vote3 Gore Vote4 Gore Vote5 Percentage6

Miami-Dade 2175634 punch 289533 328802 618335 53.18% Broward 1535468 punch 177323 386561 563884 68.55% Palm Beach 1049420 punch 152951 269732 422683 63.81% Hillsborough 940484 punch 180760 169557 350317 48.40% Pinellas 878499 punch 184823 200629 385452 52.05% Orange 817206 marksense 134517 140220 274737 51.04% Duval 738483 punch 152098 107864 259962 41.49% Brevard 470365 marksense 115185 97318 212503 45.80% Polk 457347 marksense 90295 75200 165495 45.44% Volusia 425601 marksense 82357 97304 179661 54.16% Lee 400542 punch 106141 73560 179701 40.93% Seminole 357390 marksense 75677 59174 134851 43.88% Pasco 330704 punch 68582 69564 138146 50.36% Sarasota 306546 punch 83100 72853 155953 46.71% Escambia 282432 marksense 73017 40943 113960 35.93% Marion 245975 punch 55141 44665 99806 44.75% Manatee 243531 marksense 57952 49177 107129 45.90% Leon 215926 marksense 39062 61427 100489 61.13% Lake 209812 marksense 50010 36571 86581 42.24% Collier 207029 punch 60433 29918 90351 33.11% Alachua 198484 marksense 34124 47365 81489 58.12% St. Lucie 181850 marksense 34705 41559 76264 54.49% Okaloosa 170049 marksense 52093 16948 69041 24.55% Osceola 150596 punch 26212 28181 54393 51.81% Bay 147958 marksense 38637 18850 57487 32.79% Clay 141353 marksense 41736 14632 56368 25.96% Charlotte 136992 marksense 35426 29645 65071 45.56% Hernando 128482 marksense 30646 32644 63290 51.58% Santa Rosa 120952 marksense 36274 12802 49076 26.09% St. Johns 119685 marksense 39546 19502 59048 33.03% Martin 118117 lever 33970 26620 60590 43.93% Citrus 116111 marksense 29766 25525 55291 46.16% Indian River 100253 punch 28635 19768 48403 40.84% Monroe 79941 marksense 16059 16483 32542 50.65% Highlands 74795 punch 20206 14167 34373 41.22% Putnam 70215 marksense 13447 12102 25549 47.37% Nassau 56811 punch 16280 6879 23159 29.70% Columbia 53738 marksense 10964 7047 18011 39.13% Flagler 49110 marksense 12613 13897 26510 52.42% Jackson 44549 marksense 9138 6868 16006 42.91% Gadsden 44077 marksense 4767 9735 14502 67.13% Sumter 42754 punch 12127 9637 21764 44.28% Walton 38124 marksense 12182 5642 17824 31.65% Suwanee 32972 marksense 8006 4075 12081 33.73% Levy 32386 marksense 6858 5398 12256 44.04% Okeechobee 32386 marksense 5057 4588 9645 47.57% Hendry 29463 marksense 4747 3240 7987 40.57% Bradford 24872 marksense 5414 3075 8489 36.22%

120 Desoto 24636 punch 4256 3320 7576 43.82% Baker 21181 marksense 5610 2392 8002 29.89% Hardee 21017 punch 3765 2339 6104 38.32% Washington 20614 marksense 4994 2798 7792 35.91% Wakulla 19179 punch 4512 3838 8350 45.96% Taylor 19049 marksense 4056 2649 6705 39.51% Holmes 18761 marksense 5011 2177 7188 30.29% Madison 17919 punch 3038 3014 6052 49.80% Gilchrist 14056 punch 3300 1910 5210 36.66% Gulf 13562 marksense 3550 2397 5947 40.31% Jefferson 13090 punch 2478 3041 5519 55.10% Dixie 12919 punch 2697 1826 4523 40.37% Hamilton 12785 marksense 2146 1722 3868 44.52% Union 12720 hand count 2332 1407 3739 37.63% Calhoun 12436 marksense 2873 2155 5028 42.86% Franklin 9978 marksense 2454 2046 4500 45.47% Glades 8693 punch 1841 1442 3283 43.92% Liberty 6703 marksense 1317 1017 2334 43.57% Lafayette 6477 marksense 1670 789 2459 32.09% Total 15111244 2910492 2910192 5820684 50.00%

1. 1999 Population Estimates, Population Estimates Program, Population Div., U.S. Census Bureau, http://www.census.gov/population/estimates/county/co-99-1/99C1_12.txt

2. "Certified Voting Systems Used in Florida, Table of Methods (by system, by county)," provided by Sec. of State from Official Records in Response to Request of Court, Nov. 30, 2000.

3. Harris', Roberts', and Crawford's Response to Emergency Motion for Injunction Pending Appeal and to Expedite, Exhibit A; "2000 General Election Results, Unofficial (Recount Results 11/14/2000)," provided by Sec. of State from Official Records in Response to Request of Court, Nov. 30, 2000.

4. Id.

5. Combination of "Bush Vote" and "Gore Vote" Totals for Each County

6. "Gore Vote" Total Divided by "Total Bush/Gore Vote" for Each County

121 CHART B

Punch Card Counties Ranked by Population County Population1 Bush Vote2 Gore Vote3 Total Bush/ Gore Gore Vote4 Percentage5

Miami-Dade 2175634 289533 328802 618335 53.18% Broward 1535468 177323 386561 563884 68.55% Palm Beach 1049420 152951 269732 422683 63.81% Hillsborough 940484 180760 169557 350317 48.40% Pinellas 878499 184823 200629 385452 52.05% Duval 738483 152098 107864 259962 41.49% Lee 400542 106141 73560 179701 40.93% Pasco 330704 68582 69564 138146 50.36% Marion 245975 55141 44665 99806 44.75% Collier 207029 60433 29918 90351 33.11% Sarasota 306546 83100 72853 155953 46.71% Osceola 150596 26212 28181 54393 51.81% Indian River 100253 28635 19768 48403 40.84% Highlands 74795 20206 14167 34373 41.22% Nassau 56811 16280 6879 23159 29.70% Sumter 42754 12127 9637 21764 44.28% Desoto 24636 4256 3320 7576 43.82% Hardee 21017 3765 2339 6104 38.32% Wakulla 19179 4512 3838 8350 45.96% Madison 17919 3038 3014 6052 49.80% Gilchrist 14056 3300 1910 5210 36.66% Jefferson 13090 2478 3041 5519 55.10% St. Johns 306546 39546 19502 59048 33.03% Dixie 12919 2697 1826 4523 40.37% Glades 8693 1841 1442 3283 43.92% Total 9365502 1640232 1853067 3493299 53.05%

1. 1999 Population Estimates, Population Estimates Program, Population Div., U.S. Census Bureau, 2. Harris', Roberts', and Crawford's Response to Emergency Motion for Injunction Pending Appeal and to Expedite, Exhibit A; "2000 General Election Results, Unofficial (Recount Results 11/14/2000)," provided by Sec. of State from Official Records in Response to Request of Court, Nov. 30, 2000. 3. Id. 4. Combination of "Bush Vote" and "Gore Vote" Totals for Each County 5. "Gore Vote" Total Divided by "Total Bush/Gore Vote" for Each County

122 CHART C Punch Card Counties by Percentage of "No Vote"

Ballots Presidential No Percent Gore County Cast1 Votes Counted2 Votes3 No Votes4 Share5

Glades 3722 3365 357 9.59% 43.92% Duval 291626 264636 26990 9.26% 41.49% Jefferson 6215 5643 572 9.20% 55.10% Desoto 8512 7811 701 8.24% 43.82% Madison 6642 6162 480 7.23% 49.80% Nassau 25387 23581 1806 7.11% 29.70% Dixie 4998 4666 332 6.64% 40.37% Palm Beach 462588 433186 29402 6.36% 63.81% Hardee 6645 6233 412 6.20% 38.32% Gilchrist 5688 5395 293 5.15% 36.66% Wakulla 9017 8587 430 4.77% 45.96% Miami-Dade 654044 625443 28601 4.37% 53.18% Indian River 51559 49622 1937 3.76% 40.84% Sumter 23032 22261 771 3.35% 44.28% Collier 95325 92141 3184 3.34% 33.11% Osceola 57341 55658 1683 2.94% 51.81% Marion 106001 102956 3045 2.87% 44.75% Highlands 36158 35149 1009 2.79% 41.22% Pasco 146648 142731 3917 2.67% 50.36% Broward 588007 573396 14611 2.48% 68.55% Hillsborough 369467 360295 9172 2.48% 48.40% Lee 188978 184377 4601 2.43% 40.93% Pinellas 406956 398469 8487 2.09% 52.05% Sarasota 163749 160942 2807 1.71% 46.71% Total 3718305 3572705 145600 3.92% 53.05%

1. "Voter Turnout (November 15, 2000)," provided by the Sec. of State from Official Records in Response to Request of Court, November, 30, 2000. 2. Id. 3. Id. 4. Id. 5. "Gore Vote" Total Divided by "Total Bush/Gore Vote" for Each County, based on figures from Harris', Roberts', and Crawford's Response to Emergency Motion for Injunction Pending Appeal and to Expedite, Exhibit A; "2000 General Election Results, Unofficial (Recount Results 11/14/2000)," provided by Sec. of State from Official Records in Response to Request of Court, Nov. 30, 2000.

123 CHART D Punch Card Counties by Percentage of Citizens 65+

Population Percent Gore County Population1 65+2 65+3 Share4

Highlands 74795 27042 36.15% 41.22% Sarasota 306546 98225 32.04% 46.71% Indian River 100253 28851 28.78% 40.84% Pasco 330704 87190 26.36% 50.36% Collier 207029 52999 25.60% 33.11% Lee 400542 102530 25.60% 40.93% Marion 245975 62122 25.26% 44.75% Palm Beach 1049420 253796 24.18% 63.81% Pinellas 878499 203070 23.12% 52.05% Desoto 24636 4970 20.17% 43.82% Glades 8693 1687 19.41% 43.92% Sumter 42754 7873 18.41% 44.28% Broward 1535468 258033 16.80% 68.55% Dixie12919 2137 16.54% 40.37% Hardee 21017 3245 15.44% 38.32% Miami-Dade 2175634 310642 14.28% 53.18% Madison 17919 2458 13.72% 49.80% Jefferson 13090 1783 13.62% 55.10% Gilchrist 14056 1894 13.47% 36.66% Osceola 150596 20265 13.46% 51.81% Nassau 56811 7492 13.19% 29.70% Hillsborough 940484 119047 12.66% 48.40% Wakulla 19179 2380 12.41% 45.96% Duval 738483 77976 10.56% 41.49% Total 9365502 1737707 18.55% 53.05%

1 1999 Population Estimates, Population Estimates Program, Population Div., U.S. Census Bureau,

2. "Population Estimates for Counties by Age Group: July 1, 1999," Population Estimates Program, Population Div., U.S. Census Bureau,

3. "Population 65+" Divided by "Population"

4. "Gore Vote" Total Divided by "Total Bush/Gore Vote" for Each County, based on figures from Harris', Roberts', and Crawford's Response to Emergency Motion for Injunction Pending Appeal and to Expedite, Exhibit A; "2000 General Election Results, Unofficial (Recount Results 11/14/2000)," provided by Sec. of State from Official Records in Reponse to Request of Court, Nov. 30, 2000.

124 CHART E

Punch Card Counties by Percentage of Black/Hispanic

Total Total Total Black/ Percentage Gore County Population1 Black2 Hispanic3 Hispanic4 Black/Hispanic5 Share6

Miami-Dade 2175634 443024 1249358 1692382 77.79% 53.18% Jefferson 13090 6387 357 6744 51.52% 55.10% Madison 17919 8343 383 8726 48.70% 49.80% Hardee 21017 1610 6457 8067 38.38% 38.32% Hillsborough 940484 144031 171813 315844 33.58% 48.40% Duval 738483 210757 28934 239691 32.46% 41.49% Desoto 24636 4480 3311 7791 31.62% 43.82% Broward 1535468 285918 196581 482499 31.42% 68.55% Glades 8693 1476 1027 2503 28.79% 43.92% Sumter 42754 9381 1866 11247 26.31% 44.28% Palm Beach 1049420 155763 117114 272877 26.00% 63.81% Osceola 150596 10320 26500 36820 24.45% 51.81% Collier 207029 11860 38413 50273 24.28% 33.11% Marion 245975 36550 11282 47832 19.45% 44.75% Highlands 74795 8671 5554 14225 19.02% 41.22% Wakulla 19179 2991 179 3170 16.53% 45.96% Lee 400542 32270 27222 59492 14.85% 40.93% Indian River 100253 10205 4463 14668 14.63% 40.84% Nassau 56811 7147 1002 8149 14.34% 29.70% Pinellas 878499 85019 32647 117666 13.39% 52.05% Gilchrist 14056 1302 332 1634 11.62% 36.66% Dixie 12919 1216 179 1395 10.80% 40.37% Sarasota 306546 16386 10039 26425 8.62% 46.71% Pasco 330704 8494 18013 26507 8.02% 50.36% Total 9365502 1503601 1953026 1204826 12.86% 53.05%

1. 1999 Population Estimates, Population Estimates Program, Population Div., U.S. Census Bureau,

2. "Population Estimates for Counties by Race and Hispanic Origin: July 1, 1999," Population Estimates Program, Population Div., U.S. Census Bureau,

3. Id.

4. Combination of "Total Black" and "Total Hispanic"

5. "Total Black/Hispanic" Divided by "Population"

6. "Gore Vote" Total Divided by "Total Bush/Gore Vote" for Each County, based on figures from Harris', Roberts', and Crawford's Response to Emergency Motion for Injunction Pending Appeal and to Expedite, Exhibit A; "2000 General Election Results, Unofficial (Recount Results 11/14/2000)," provided by Sec. of State from Official Records in Response to Request of Court, Nov. 30, 2000.

125 CHART F

Marksense (Optical Scan) Counties by Percentage of "No Votes"

Ballots Presidential No Percent Gore County Population1 Cast2 Votes Counted3 Votes4 No Votes5 Share6

Gadsden 44077 16812 14727 2085 12.40% 67.13% Hendry 29463 8950 8139 811 9.06% 40.57% Hamilton 12785 4353 3964 389 8.94% 44.52% Franklin 9978 5070 4644 426 8.40% 45.47% Taylor 19049 7413 6808 605 8.16% 39.51% Okeechobee 32386 10722 9853 869 8.10% 47.57% Bradford 24872 9414 8673 741 7.87% 36.22% Liberty 6703 2598 2410 188 7.24% 43.57% Jackson 44549 17470 16300 1170 6.70% 42.91% Lafayette 6477 2679 2505 174 6.49% 32.09% Levy 32386 13490 12724 766 5.68% 44.04% Suwanee 32972 13189 12457 732 5.55% 33.73% Charlotte 136992 70100 66896 3204 4.57% 45.56% Washington 20614 8353 8025 328 3.93% 35.91% Lake 209812 92046 88611 3435 3.73% 42.24% Escambia 282432 121141 116648 4493 3.71% 35.93% Columbia 53738 19206 18508 698 3.63% 39.13% Holmes 18761 7541 7395 146 1.94% 30.29% Baker 21181 8300 8154 146 1.76% 29.89% Calhoun 12436 5256 5174 82 1.56% 42.86% Manatee 243531 111676 110221 1455 1.30% 45.90% Bay 147958 59520 58805 715 1.20% 32.79% Walton 38124 18537 18318 219 1.18% 31.65% Okaloosa 170049 71512 70680 832 1.16% 24.55% St. Johns 119685 61313 60746 567 0.92% 33.03% St. Lucie 181850 78709 77989 720 0.91% 54.49% Orange 817206 282529 280125 2404 0.85% 51.04% Putnam 70215 26416 26222 194 0.73% 47.37% Santa Rosa 120952 50684 50319 365 0.72% 26.09% Clay 141353 57764 57353 411 0.71% 25.96% Monroe 79941 34095 33887 208 0.61% 50.65% Union 12720 4084 3826 258 6.32% 37.63% Polk 457347 169582 168607 975 0.57% 45.44% Alachua 198484 86144 85729 415 0.48% 58.12% Citrus 116111 57468 57203 265 0.46% 46.16% Hernando 128482 65500 65219 281 0.43% 51.58% Flagler 49110 27194 27111 83 0.31% 52.42% Volusia 425601 184153 183653 500 0.27% 54.16% Brevard 470365 218989 218395 594 0.27% 45.80% Leon 215926 103388 103124 264 0.26% 61.13% Seminole 357390 137970 137634 336 0.24% 43.88% Total 5614905 2353811 2320099 33712 1.43% 45.47%

126 1. 1999 Population Estimates, Population Estimates Program, Population Div., U.S. Census Bureau,

2. "Voter Turnout (November 15, 2000)," provided by the Sec. of State from Official Records in Response to Request of Court, November, 30, 2000.

5. Id.

6. "Gore Vote" Total Divided by "Total Bush/Gore Vote" for Each County, based on figures from Harris', Roberts', and Crawford's Response to Emergency Motion for Injunction Pending Appeal and to Expedite, Exhibit A; "2000 General Election Results, Unofficial (Recount Results 11/14/2000)," provided by Sec. of State from Official Records in Response to Request of Court, Nov. 30, 2000.