Ned L. Siegel, Georgette Sosa Douglas v. Theresa Lepore, Charles E. Burton

HQ3 Fleming, Carey DeDeyn, P. H. John Lawrence, Orr, Allegra C. A. J.

James Sutherland, Whitaker, III, Asbill

Francis Brennan, LLP, Atlanta, GA, for Defen-

&

dants-Appellees. ANDERSON, Judge, and

Before Chief EDMONDSON,

TJOFLAT, COX, CARNES,

BIRCH, DUBINA, BLACK,

BARKETT, HULL, MARCUS

WILSON, Judges. Circuit

BY THE COURT: Emergency for an

Appellants’ Motion

Injunction Pending Appeal is DENIED

WITHOUT PREJUDICE the reasons today

set out in the order entered in No.

00-15985, Mcdermott, Touchston v.

F.3d 1161. SIEGEL, Georgette

Ned L. Sosa

Douglas, al., Plaintiffs- et

Appellants, LEPORE, Burton, Charles E.

Theresa al., Defendants-Appellees.

et

No. 00-15981. of Appeals,

United States Court

Eleventh Circuit.

Dec.

H65 H67 Case, Jimenez, LLP, D. White Marcos & Miami, FL, Olson, B. Theodore Thomas G. Nelson, Hungar, Douglas R. Daniel W. LLP, Cox, Gibson, Crutcher, Dunn & DC, Plaintiffs-Appellants. Washington, for FL, Pohl, Lauderdale, A. Beverly Ft. Cherof, Goren, Josias, Goren, Samuel S. Ezrol, PA, Lauderdale, FL, Ft. Doody & FL, Kraftchiek, Miami, L. Ro- Lee Alan Blossom, DeLand, FL, Charles Box land Cullen, Jones, Atlanta, GA, III, A. Mark Firm, P.A., Raton, Szymoniak The Boca Adelman, FL, Wynn David Isaac Teresa Fleming, Carey H. P. Roseborough, John Orr, Law- DeDeyn, Allegra A. J. James rence, Whitaker, III, Francis Suther- C. Brennan, LLP, Atlanta, GA, land, Asbill & Meyers, Dept, of La- Jeffrey Andrew Fla. Sec., Lauderdale, Employment bor & Ft. Eckert, FL, Schnebly, Vo- Daniel D. Tura Gummey, Frank B. Cty. Legal Dept., lusia III, DeLand, FL, Rogow, Bruce Bruce S. votes, 2,907,351 margin for a Lauderdale, FL, for De- ceived P.A., Ft. Rogow, 1,784, 0.0299% of the total difference fendants-Appellees. Florida vote. AL, Montgomery, Campbell, B. Charles Alabama, At- State for Amicus Curiae law, county canvassing Under Secretary torney of Alabama General determining responsible boards of State of Alabama. candidate. cast for each number of votes Fahlbusch, Atty. Asst. If candidate for § Melvin 102.141. Charles See Fla. Stat. Lauderdale, FL, Lee Gen., Scott Ft. per- one-half of one office is defeated AL, Rouse, for Amicus Curi- Montgomery, cast for such less of the votes cent or Atty. of Florida. ae Gen. office, canvassing must order board 102.141(4). Pursuant recount. See id. Cullen, Szymoniak Aloysius Mark statute, the Presidential to this because Raton, FL, Firm, P.A., for Interve- Boca the Democratic reflected that vote returns nor. than one-half of ticket was defeated less canvassing boards con- percent, one votes. automatic recounts ducted recounts, Republi- automatic After the ANDERSON, Judge, and Chief Before votes, majority of can ticket retained the EDMONDSON, COX, TJOFLAT, margin. a slimmer although CARNES, BIRCH, DUBINA, BLACK, BARKETT, HULL, MARCUS and law, a manual re Under Florida WILSON, Judges. Circuit requested by any candidate count ballot, po appeared whose name PER CURIAM: supports opposes litical committee appeal from the denial of a This is ballot, the or a appeared an issue that injunction. preliminary ap political party whose candidates’ names the of- Republican The candidates for Fla. Stat. peared on the ballot. See and fices of President Vice President 102.166(4)(a). § request a must be Such States, along reg- the with several United canvassing filed with the board within voters, Florida filed suit federal istered midnight after of the date the elec hours Miami, seeking enjoin to four court held, canvassing tion was or before the conducting Florida counties from manual results, challenged certified the board has for recounts of ballots cast President 102.166(4)(b). § whichever is later. See id. in the November the United States canvassing may, The board but is not re denied election. The district court to, grant request. the See id. quired injunc- request preliminary Plaintiffs’ for 102.166(4)(c); County § Broward Can relief, For the appeal. tive and Plaintiffs vassing Hogan, Bd. v. 607 So.2d below, reasons stated we affirm. (“The statute clear (Fla.Dist.Ct.App.1992) ly the decision whether or not to leaves

I. as a hold a manual recount of the votes to decided within the discretion matter be 7, 2000, voters On November Florida board.”). statutory The canvassing of the offices, including ballots for several cast all provision applies manual recount twenty-five for the electors for Presi- votes Therefore, proce Florida counties. dent and Vice-President the United a manual recount requesting dure for day, Division of following States. The counties, although the same in all the deci reported Elections for State to conduct a manual re sion of whether Republican Party presidential course, would, votes, separately be made 2,909,135 count received and the ticket canvassing board. by county’s re- each Party presidential Democratic ticket county canvassing count is that Once authorized some ballots which were un- board, due, must include “at recount readable machine for example, to precincts percent punch least three and at least voters’ failure to mark or the ballots fashion, in machine-legible might total votes cast for such candidate.” be read 102.166(4)(d). counters; § human person request- The and these Id. votes could ing precincts the recount three to be added the totals for each chooses candidate. recounted, and, precincts if other be

recounted, canvassing board chooses II. precincts. If the additional See id. 11, 2000, On November registered vot- results of the manual recount indicate “an ers Ned L. Siegel from Palm Beach Coun- error the vote tabulation which could ty, Georgette Douglas Sosa from Broward election, affect the outcome of the County, Gonzalo Dorta from Miami-Dade (a) county canvassing board shall: Correct County, King Carretta from Butler Volusia remaining pre- and recount error County, Bray Clay Dalton County, (b) system; with the cincts vote tabulation Higgins James from Martin County, S. Request Department verify State Roger Coverly D. from Seminole (c) software; Manually the tabulation County, along Republican with the candi- 102.166(5). all Id. recount ballots.” Vice-President, dates for President and specifies procedures Florida law (col- George Cheney W. Bush and Richard 102.166(7) a manual recount. Section “Plaintiffs”), lectively Complaint filed a provides the Florida Statutes that: and a Temporary Restraining Motion for a (a) county canvassing shall board Preliminary Injunction Order appoint many counting teams district court for the Southern District of necessary at least two as is electors Florida. Plaintiffs sued members of the manually recount the A ballots. Volusia, county canvassing boards of Palm have, counting pos- team must when Beach, Broward, and Miami-Dade Coun- sible, politi- members of at two least Complaint ties.1 alleged Plaintiffs’ cal A parties. candidate involved in the manual recounts violate the Four- the race shall not a member of guarantees teenth Amendment’s of due counting team. process equal protection, deny (b) If counting team is unable to de- protec- and burden the First Amendment’s in casting termine voter’s intent political speech. tion of votes and ballot, presented the ballot shall be prayer Plaintiffs’ for relief their Com- county canvassing for it board plaint following: included the to determine the voter’s intent. (a) Declaring Defendants ease, In this the Florida Democratic subject any not vote totals to manual Party requests filed for manual recounts in recounts; Broward, Beach, Miami-Dade, Palm and (b) alternative, declaring In the 9, 2000, Volusia on November Counties 102.166(4) § Florida Statute is unconsti- statutory within 72-hour the deadline. tutional to extent it does not limit the requests The stated for reasons the includ- the discretion of Defendants to conduct the closeness the statewide race and ed case; manual recounts this might a concern that the vote totals (c) Declaring reflect the true will of Florida voters. The that Defendants should apparent practical certify effect of a manual re- and release forthwith all vote nor-appellee appeal. 1. There are no state on The At- defendants this case. this case above, parties In addition to the mentioned torney appeared General also as an amicus granted the district court a motion the argument constitutionality oral to defend the intervene, Party Florida Democratic of the statute. Party the Florida Democratic is an interve- statutory the deadline of 5:00 subject of two boards after have been the totals that 7, 2000; 2000. Novem- p.m. on November On November vote counts since 21, 2000, in the consolidated cases ber (d) the form of ballot Declaring that County Canvassing Beach Bd. Palm valid; County was Palm Beach used in Harris, County Canvassing Bd. v. Volusia (e) punched Declaring that ballot Harris, Party v. and Florida Democratic candi- two Presidential or marked for Harris, Supreme of Florida de- Court previously counted cannot now dates not Secretary of Har- cided that Florida State counted; late-reported results of accept ris must (f) removing to this Consolidating recounts from these counties sub- filed across the any and all actions Court evening mitted of November challenge purporting of Florida State Supreme 2000. The Florida Court ex- results of the November 7 statewide party had pressly stated that neither delay or otherwise the certifica- election appeal raised as an issue on the constitu- results; and release of those tion laws, tionality and it of Florida’s election Granting other and further (g) such did not address federal constitutional is- just shall relief as this Court deem opinion.3 sues in its proper. Emergency an appeal, On Plaintiffs filed 16-17.) (Complaint at Injunction Pending Appeal, Motion Temporary Motion for a Restrain- asking prohibit this Court to Preliminary Injunction ing Order and canvassing pro- board Defendants from Complaint which Plaintiffs filed with their ceeding manual ballot recounts. This with alia, asked, inter the district court prejudice motion was denied without prohibit county canvassing boards Among other things, November proceeding with manual recounts we then said: 7th results. Like November election of the Both the Constitution United Complaint, motion contended that and 3 5 indicate that States U.S.C. the manual recounts violate the First primary authority have the to de- states and the Process and Amendment Due appointing termine the manner of Presi- Equal Protection Clauses of the Four- con- dential Electors and to resolve most teenth Amendment. appointment concerning troversies argument The district court heard oral of Electors. The case law is to the same 13, 2000, on the motion on November effect, course, courts although, of federal injunc- request preliminary Plaintiffs’ for a may act claims of preserve and decide 14, 2000, tion was denied. On November violations of the Constitution appeal.2 Plaintiffs a notice of filed circumstances, United States in certain During pendency appeal, especially remedy is inad- of this sev- where state case, appealed equate. eral Florida In this of Flori- cases were State cases, Supreme dispute Florida In has enacted detailed election Court. these da plaintiffs challenged procedures. procedures some These Secre- invoked, tary of process of State Katherine Harris’s decision been and are the being implemented, to in the form of accept to refuse the results of manual both by canvassing by recounts submitted administrative actions state officials lodged Supreme recently 2. The documents in this case were 3. The United States Court they this Court as were filed in the Supreme opinion. district vacated the Florida Court’s Appellate Bd., court. Pursuant to Federal Rule of See Bush v. Palm Beach Canv. - U.S. 35, Procedure this Court ordered that this -, 471, - L.Ed.2d -(2000). initially case be en v. heard banc. See Hunter States, (11th United 101 F.3d Cir. Prichard, 1996) (en banc); City Bonner v. of 1981) (11th (en banc). 661 F.2d 1206 Cir. to ex Plaintiffs moved this Court actions in state form of and in the underlying appeal, which motion pedite of the courts, Supreme the Court including is now before us on granted. we This case represented to us It has been Florida. denial of appeal and the of the district court’s will the courts address state injunc a preliminary Plaintiffs’ for necessary constitu- motion federal resolve them, ask this Court either includ- tion. Plaintiffs presented tional issues decision, enjoin reverse the district court’s Plaintiffs in this by raised ing the issues canvassing board Defendants from the so, are procedures state case. If then certifying recounts or conducting manual preserve any way inadequate include manual re election results States ultimate review United for counts, the deletion non- or order and/or questions any federal Supreme Court vote tabulations that re inclusion of final orders. arising out of such manual recounts.4 flect the results of Mo Emergency Plaintiffs’ Denying Order carefully Pending Appeal, Touch This has considered Court Injunction for tion McDermott, (11th appeal, as well as the other doc- Plaintiffs’ ston 234 F.3d 1130 omitted). filed, and has conferred en banc on Cir.2000) (citations uments clear,” appellate challenge is an request appeal action under on is broader 4. thus Plaintiffs’ injunction pending addressing request the than court need not abstain from their appeal, only that we which asked halt S.Ct. at 2176. so merits. Id. In at underway. however, To the extent that then Supreme recounts holding, the Court noted represents peti- a request appeal Plaintiffs’ presented, situation is of "[a] that course, different relief, we must decline to permanent tion for disagreement as to there is no when prelimi- appeal a denial of a of convert this law, probability on the the the of success but hearing on the nary injunction into a final likely to depends on facts that are merits Our review of Plaintiffs’ claims. merits emerge at 757 n. at at trial.” Id. S.Ct. normally limited to whether the is such a case (citations omitted). 2177 n. 8 however, discretion; abused its district court clearly this latter cate- case falls within This appellate under recognize we that an court very gory, represents situation in and thus may decide merits of circumstances some appellate Supreme Court held which of a connection with its review case appropriate. The answer review was not injunction. preliminary aof denial anything questions is but the constitutional College Thornburgh Obstetri- v. American And, Thornburgh, contrast to clear. in stark 755-56, Gynecologists, 476 U.S. cians & a factual record that we have us before 2169, 2176, (1986). 90 L.Ed.2d S.Ct. disputed. incomplete vigorously largely Thornburgh, Supreme said that Court ruling its on Plain- The court based district solely ruling on a "if a court's rests district preliminary injunction for a sole- tiffs’ motion law, applicable rule premise as to submission of ly affidavits and the on limited controlling or of no the facts are established relevance, documents, including news media re- few ruling even reviewed Moreover, discovery was no ports. there entry though appeal from the case, plenary a trial or hear- much less S.Ct. preliminary injunction.” Id. at presented ing, of the scant evidence and none Supreme Court at affirmed court was tested the adver- to the district the mer appellate court’s decision to review process The con- sarial of cross-examination. its, merely determine whether rather than fervently contested relevant are facts trolling had abused its court discretion district evidentiary infirmities parties. These preliminary injunction, where it entering a " given that especially problematic Plain- complete unusually 'an had benefit challenges as-applied major tiffs’ claims are legal presentation which to factual statutes, validity arguments the to the Florida important constitutional issues address ” development depends upon College (quoting Ob Id. American stake.' expedien- evidentiary Mere complete record. Gynecologists Thornburgh, 737 stetricians & reaching the cy warrant this Court does not 283, 1984)). (3d Additionally, Cir. 290 F.2d the absence of claims in merits of Plaintiffs' appellate Supreme Court observed that to do so. necessary evidence decisions aided three recent was review Therefore, reasoning Thorn- applying the the same circuit on constitutional from it of this case as 753-54, 757, burgh, the circumstances S.Ct. at 106 issues. See id. 2174-75, deny re- Thus, require us to their currently stands "when it stated that 2177. quest. particular unconstitutionality state 1172 argu- light of the United States We heard oral

numerous occasions. vacating the 5, Supreme Court’s decision Recognizing December ment on 21, November case, Supreme Court’s of a resolution to this importance 2000, decision, it unclear at the moment appeal is re- decision on prompt any judgments giving final rise to quired. now Rooker-Feldman concerns exist. See Bd., County Bush v. Beach Canv. Palm III. — — U.S. -, 471, 121 L.Ed.2d S.Ct. - whether Rooker- first consider (2000). We to our party No has called subject mat bars our exercise Feldman judgments final in the Flori attention jurisdiction over Plaintiffs’ claims. ter upon which a Rooker-Feld- da state courts reasonably man bar could be based as to The Rooker-Feldman doctrine Thus, we these Plaintiffs.5 conclude courts, than other provides that federal not Rooker-Feldman does bar Plaintiffs Court, Supreme have no United States bringing particular from these constitu judgments authority to review the final implementation of challenges tional state See District Columbia courts. provision. Florida’s manual recount Feldman, v. 460 U.S. Appeals Court of Broward, Beach, Palm Defendants 462, 486, 1303, 1317, 75 103 S.Ct. L.Ed.2d County Canvassing and Volusia Boards Co., (1983); Fidelity Rooker v. 206 Trust argue also that this case is moot because 413, 415-16, 149, 150, 44 263 S.Ct. 68 U.S. completed the manual recounts have been (1923). L.Ed. The doctrine extends 362 and the boards have filed their certified only presented claims to constitutional vote tabulations with Elections Can court, adjudicated by a state but also to However, vassing Commission. we con “inextricably claims that are intertwined” clude this case is not moot. Feldman, judgment. with a state court 16, 460 U.S. at 482 n. 103 S.Ct. at 1315 n. Article III of the Constitu (11th Moore, 16; 624, jurisdiction 121 tion limits federal Dale v. F.3d 626 court to live Cir.1997). controversies, inextricably A federal claim is cases and the “case-or- judgment controversy” requirement intertwined with a state court “if “subsists through stages judicial pro the federal claim succeeds to the ex all of federal wrongly ceedings, appellate.” tent that the state court decided trial and v. Lewis 472, 477, the issues before it.” Pennzoil v. Tex Bank 494 Corp., Co. Continental U.S. aco, Inc., 1, 25, 1249, 1253, 1519, 107 481 U.S. S.Ct. 110 S.Ct. 108 L.Ed.2d 400 (1987) (1990). 1533, (Marshall, J., 95 L.Ed.2d 1 This Court has held that claim “[a] if; concurring). injunctive relief become moot reasons, (Fla. Youngblood Taylor, 5. For similar we conclude that nei v. 89 So.2d 503, 1956)). judicata estoppel parties ther res nor collateral bars to this case are not the parties appeared our consideration of the issue of the constitu same before the Florida tionality statutory Supreme similarly requires of Florida's manual recount Court. Florida provision. mutuality parties application We look to Florida law to deter of col McQueen, application preclusive estoppel. Stogniew mine the of these doc lateral 917, (Fla.1995). Further, Migra City trines. See v. Warren Sch. Dist. 656 So.2d 919-20 75, 81, of Educ., estoppel Bd. 465 U.S. the doctrine of collateral bars identi (1984) (holding parties relitigating only 79 L.Ed.2d 56 that under cal those issues Act, previously the Full Faith and Credit a federal court been decided between Shevin, give preclusive Corp. must the same effect to a state them. See Mobil Oil Where, (Fla.1977). here, judgment court as court of another that state So.2d give). dispute fully litigat would Florida adheres to the tradition the issue in ed, has not been requirement mutuality parties al inapplicable. in its the doctrine is We therefore application judicata. judicata of res See Albrecht v. conclude that neither res nor collat Florida, (Fla. 1984); estoppel State So.2d eral bars our review of the constitu Badra, tionality provi Street State Bank & Trust Co. v. of Florida’s manual recount (citing (Fla.Dist.Ct.App.2000) So.2d sion.

H73 public concern. there to a matter substantial (1) with assurance it can be said Co., al that the v. Prods. 199 F.3d expectation Boyes See Shell Oil reasonable is no (2) (11th Cir.2000) interim 1260, (citing and will recur 1265 New Or- leged violation and irre completely Serv., relief or events Inc. v. Council leans Pub. al effects of the vocably 361, eradicated Orleans, 350, 491 U.S. City New Occupational Reich leged violation.” 2506, 2514, L.Ed.2d 298 109 S.Ct. 105 Comm’n, 102 F.3d Health Review Safety & (1989)). A furthered purpose central Cir.1997). (11th 1200, 1201 protect complex abstention is to Burford processes from undue state administrative of these ele- that neither We conclude Demo- New Orleans in this case. The federal interference. is satisfied ments Gore, candidate, and Serv., 362, President Vice 109 cratic Pub. 491 U.S. at S.Ct. contesting the elec- currently others are The case before us does not threat- in numer- lawsuits in various tion results part all or a substantial en undermine There are still Florida state courts. ous process conducting elections Florida’s votes from at least Volusia manual recount Rather, resolving election disputes. and in the November Counties and Broward target Plaintiffs’ claims in this case certain of the Florida election results 26th official particular set forth in a practices discrete com- In view of the Secretary of State.6 Further, impli- statute. state Burford ever-shifting circumstances plex would dis cated when federal interference case, say with confidence we cannot effort, adminis rupt through a state’s its controversy before us.7 live that no agencies, uniformity and trative to achieve See, consistency addressing problem. a IV. Co., Quackenbush v. Allstate Ins. e.g., 727-28, 1712, 1727, 706, we ab- argue that should Defendants U.S. (1996). hearing this case under stain from This case does not L.Ed.2d Burford Co., 315, 63 319 U.S. S.Ct. v. Sun Oil to undermine Florida’s uniform threaten (1943), under Railroad L.Ed. 1424 recounts; indeed, the to manual approach Co., Tex. v. Pullman 312 U.S. Comm’n complaint is the absence crux of Plaintiffs’ (1941). We 85 L.Ed. S.Ct. for initiat and uniform standards of strict appropriate that abstention is not conclude Finally, conducting such recounts. ing or in this case. repre note that abstention we Burford “extraordinary excep narrow sents doc abstention Burford duty of a District Court tion to a federal court to dismiss trine allows a controversy properly before adjudicate a presents questions if it difficult case Allegheny Frank Ma County it.” problems of bearing policy law of state Co., 185, 188,79 S.Ct. 360 U.S. shuda impor import whose public substantial (1959). We do 3 L.Ed.2d case the result tance transcends by Defen concerns raised believe that the bar, adjudication if then at its justify our in this case abstention dants disrupt would state efforts federal forum under this narrow doctrine. policy respect with to establish coherent appeal, yet party to this because she is not manual recount 6. There also be some question whether those results from a number of other is some votes in we note that there Seminole, Gadsden, counties, requested such as relief Court could order the Polk. canvassing boards have Defendant once the completed recounts and have their manual request injunc- broadly, Plaintiffs' 7. Read Elections their vote totals to the statе certified interpreted request tive relief can However, Canvassing because Commission. certify only those be ordered to Defendants preliminary deny for a we Plaintiffs’ motion re- from machine vote totals that resulted address this issue. injunction, we need not Secretary of State Because Florida counts. certified the election results Harris has 1174

Perhaps persuasive abstain, the most involved in upholding a refusal to by Harman, 537, justification for abstention advanced 380 U.S. at 85 at 1183 S.Ct. Pullman, based on 312 U.S. rights); Defendants is (voting County Sch. Bd. Griffin 971; 496, 643, however, L.Ed. 61 S.Ct. 85 218, County, Prince Edward 377 84 U.S. (1964) (school we that abstention under this 1226, conclude S.Ct. L.Ed.2d 256 appropriate. doctrine would not be Under Bullitt, desegregation); Baggett v. doctrine, the Pullman abstention a federal 360, 1316, U.S. 12 L.Ed.2d 377 will (First court defer “state court resolution (1964) rights)). Amendment Our underlying issues of state law.” Har voting rights cases held that cases Forssenius, 534, man v. 380 U.S. particularly inappropriate are for absten- (1965). 1177, 1181, 14 S.Ct. L.Ed.2d 50 tion. v. Poythress, See Duncan 657 F.2d Two elements must be met for Pullman (5th 1981) Unit B (stating Cir. (1) apply: abstention to the case must alleged that while an voting denial of law, present question unsettled of state rights preclude does not federal absten- (2) question and of state law must be tion, Supreme precedent Court indicates dispositive materially of the case or would that a federal court should be reluctant to question alter the presented. constitutional stake); voting rights abstain when at id. at See 85 S.Ct. at 1182. The Edwards, 437 (stating F.2d at 1244 purpose of Pullman abstention is to “avoid general rule that abstention appro- is not unnecessary friction federal-state func priate “in involving cases such a strong tions, important interference with state vote”). national right interest as the In functions, questions tentative decisions on light precedent, of this importance law, premature of state constitutional rights by asserted Plaintiffs counsels adjudication.” Id. abstention Because against case; our abstention in this al- discretionary, only appropriate it is when though, below, as discussed we are mindful question fairly state law can be of the limited role of the federal courts in interpreted adjudication to avoid of the assessing a state’s electoral process. question. constitutional id. See We therefore conclude abstention is S.Ct. at 1182. not appropriate. Plaintiffs claim that Florida’s manual re- provision count is unconstitutional because V. provide statute does not sufficient This is an appeal from the denial of a guide standards to the discretion of preliminary injunction. Plaintiffs state canvassing boards in granting request First, two main claims. argue Plaintiffs for a manual recount or in conducting such scheme, that Florida’s manual recount a recount. suggestion There has been no particularly 102.166(7), Fla. Stat. by Defendants that appropri- the statute is unconstitutional because it contains no ately subject to a more limited construc- standards for when a ballot not read tion than the statute itself indicates. machine be counted. They de-

Our conclusion that abstention scribe their claim “as-applied” as an chal- is inappropriate is strengthened by lenge based on the allegedly standardless fact that Plaintiffs allege a constitutional partisan application (allegedly of the standardless) violation voting rights. of their facially consid statute Palm abstention, ering Beach, Broward, we must Dade, take into ac and Volusia Coun- count the nature of the controversy objection and ties. Plaintiffs’ chief is that dif- importance right allegedly im counties, ferent criteria used different paired. Sammons, Edwards different election officials within a (5th Cir.1971) F.2d (citing, as county, may mean the same ballot examples of cases Supreme rejected where the in one accepted instance is Court instance, referred to the right nature of the another or vice They versa.

H75 court, weighing the district vio- unequal treatment that such contend ‍​​​​​​‌​​​‌‌​‌‌‌‌‌‌​​​‌‌‌​‌‌​‌​​​​‌​‌​​​‌‌‌​​‌​‌‍that Plain determined arguments, parties’ Clause Equal Protection lates likeli a substantial failed to show tiffs had by itself vio- of standards lack that have merits. We on the hood of success Plaintiffs Process Clause. the Due lates To arguments. competing reviewed statutory the absence that contend also extent, of these our consideration some oc- recount a when manual for standards diffi shaped by practical is arguments deci- partisan arbitrary and permits curs record marshaling adequate an culties of for potential sion-making, exacerbates con unexpected events and ongoing when ballots, thus and unequal treatment case, this key facts. alter the tinually intervention. a court’s federal warrants few docu and a limited affidavits only they are that Second, assert Plaintiffs be into the record introduced ments were equal protection and process due denied discov No formal district court. fore 102.166(4),bal- because, Fla. Stat. under undertaken, and, yet, no as ery has been manually re- county may be lots in one in this been held evidentiary hearing has county are in another ballots counted while allegations material Many highly case. result, that, a simi- as They contend not. Prelimi contested. vigorously facts are not be treated voters will larly situated often, ne motions nary injunction fortuity of on similarly purely based undeveloped record. on an cessity, litigated reside; be that would a ballot they where only makes undeveloped record not But an ato manu- county pursuant in one counted his burden to meet plaintiff it for a harder elsewhere may not be counted al recount appel against it also cautions proof, not con- county did voter’s that because court’s the district setting aside late court a recount. duct such of its discretion. exercise Defendants, the Intervenor- well as However, as decide we not need contentions. all of these dispute ap Appellee, to resolve of the case the merits contain law does therefore, that Florida them at They argue not decide do peal, and for rejected standards constitutionally adequate court The district this time. injunction recount should motion a manual evaluating when preliminary Plaintiffs’ during evaluating ballots no likelihood it found only occur and for because merits, as- on the recount, Plaintiffs’ but also and that on the such success that no record evi- independent ground claim fails because applied separate irrepara have that standards to show that those had failed Plaintiffs dence shows injunction if no arbitrary partisan result injury in an would employed ble been district allowing reverse issued. We They also maintain were fashion. a clear if there only was a manual order on court’s to made whether decisions be See, Im e.g., Carillon county-by-county basis of discretion. abuse recount occurs Group Int’l Pesce ap- Ltd. Frank porters, with the consistent is reasonable Cir.1997) (11th Ltd., states, 112 F.3d by other taken proach curiam); v. International Revette (per is violation no constitutional any event & Ornamental Bridge, reasons, Structural Ass’n such there many present (11th Workers, F.2d Iron re- indicating that a no record evidence Cir.1984) (“The decision court’s district accepted request was made count a clear unless there reversed will not be made request while one discretion.”); Corp. v. Na Harris abuse rejected. More county was in a different Television, 691 & Iranian Radio arguments tional a series of they raise generally, Cir.1982). (11th Because 1344, 1354 F.2d chal- Plaintiffs’ proposition for the irreparable not shown still not Plaintiffs laws does election lenge Florida’s court district let alone injury, warrant federal a level that would rise to no finding discretion in clearly abused its intervention. irreparable injury on the record then be- tiff to show that absence its it, preliminary inju in- irreparable fore the denial issuance he will suffer Robertson, junction ry.”); (plain affirmed on that basis at 1306 must be F.3d “irreparable injury tiff must show will alone. suffered”); Corp., Harris 691 F.2d at in may grant A district court 1356-57 (concluding district court “did junctive party the moving relief if not abuse its finding discretion sub (1) that: it has a substantial likeli shows irreparable injury stantial likelihood of (2) merits; irrepa on the hood of success plaintiff] injunction”); [the absent an Deer injury rable will be suffered unless the Beach, Med. v. City Ctr. field of Deerfield (3) issues; injunction injury the threatened (5th Cir.1981) (to 328, 661 F.2d 338 outweighs damage the movant whatever injunction granted preliminary plaintiffs proposed injunction may op the cause the must “a show substantial likelihood that (4) issued, party; injunc if posing and they irreparable injury”).9 would suffer public tion would not be adverse to the Corp. interest. See McDonald’s v. Robert Significantly, even if Plaintiffs (11th son, Cir.1998) 1301, 147 F.3d 1306 establish a likelihood of success on the Serv., (citing Nursing All Care v. Inc. merits, the absence of a substantial likeli Inc., Hosp., Bethesda Mem’l 887 F.2d would, irreparable injury hood of standing (11th Cir.1989)). 1535, Circuit, In 1537 alone, injunctive preliminary make relief preliminary injunction “[a] is an extraordi improper. See Snook v. Trust Co. Geor of nary remedy granted drastic not to be Savannah, N.A., gia 480, Bank 909 F.2d of clearly unless the movant established the (11th Cir.1990) (affirming 486 denial of ” persuasion’ ‘burden of as to each of the injunction preliminary though plain even (internal four prerequisites. Id. citation tiff established prevailing likelihood of be omitted); Int’l, see also Texas v. Seatrain plaintiff cause failed to meet burden of S.A., (5th Cir.1975) 175, F.2d 518 179 proving irreparable injury); City Jack of (grant preliminary injunction “is the sonville, 896 F.2d at (reversing pre 1285 rule,” exception rather than the plain liminary injunction solely plain based on clearly carry tiff must pers the burden of irreparable tiffs failure to show injury); uasion).8 Indus, FTC, 551, Flowers v. 849 F.2d 552 (11th Cir.1988) showing inju (same); A of irreparable United States v. “ ry Lambert, (11th qua injunctive 536, Cir.1983) ‘the sine non of re 695 F.2d 540 ” lief.’ Chapter Northeastern Fla. (affirming denial of preliminary injunction Ass’n Gen. City Contractors v. Jack and stating plaintiff’s that a “success in sonville, (11th 1283, 896 F.2d 1285 Cir. establishing a likelihood it will prevail on 1990) Butler, (quoting Frejlach v. 573 F.2d the merits does not obviate the necessity (8th 1026, Cir.1978)); harm”). 1027 see also Doran irreparable show As we have Inn, Inc., 922, 931, v. Salem 422 emphasized occasions, U.S. many the assert 2561, 2568, (1975) S.Ct. 45 L.Ed.2d 648 ed irreparable injury “must be neither re (“The traditional standard for granting speculative, a mote nor but actual and immi preliminary injunction requires plain- Jacksonville, City nent.” 896 F.2d at Circuit, however, City 8. The Eleventh in Bonner v. opinions, do not read those as in- Prichard, (11th Cir.1981) 661 F.2d tending to relax the traditional standard— (en banc), adopted precedent as decisions of Supreme plaintiff stated Court—that a the former prior Fifth Circuit rendered suffer, must show either that he will or faces October suffer, a substantial likelihood that he will Doran, irreparable injury. e.g., 422 U.S. spoken 9. We occasionally requiring event, 95 S.Ct. at 2568. irreparable substantial "threat” of harm. See using outcome same even substantial Ctr., Balter, Refugee Haitian Inc. v. 949 F.2d "threat” as the benchmark. (11th Cir.1991) curiam). (per We vote, registering to from prevented Realty was Anthony Tucker (quoting from prevented (2d voting or prevented F.2d Schlesinger, 888 Corp. choice. of his Granata, the candidate voting for accord, Cir.1989)); Chacon his vote claim that any voter Cir.1975) (“An injunc- Nor does (5th 922, 925 F.2d The cases counted. rejected or not was anticipated only if appropriate tion is parties to our attention called irreparable.”). imminent injury is injunctive re- immediate have warranted time, cannot demon- Plaintiffs At this kind of circum- these involved lief have continuing irreparable threat of strate Plaintiffs can as- assuming Even stances. moment, the candidate At harm. they have not injury, kind of sert some (Governor Secretary Bush Plaintiffs immediate kind serious and shown harm, let suffering no serious Cheney) extraordinary re- demands injury that harm, they have because irreparable alone Addition- injunction. preliminary lief of of Florida’s the winners certified been injury, unrelated voter ally, any alleged notwithstanding the inclu- votes electoral certified election the outcome More- ballots. manually recounted sion of State, can be Secretary of re- were to over, if manual recounts even although And later. adequately remedied order,10it is a court to state pursuant sume exist- that Florida’s Plaintiffs assert these the re- whether as to wholly speculative be inval- scheme must recount ing manual eventually may recounts of those sults future, no one in the for now and idated ahead. President Gore place Vice implicating election another that suggests Huntsville, 30 F.3d City Church underway immi- or is procedures those Cir.1994) (“a standing (11th has party nent. party if the only injunctive relief seek irrepara- allegations other Plaintiffs’ a real ultimately proves, alleges, injunc- preliminary justify injuries to ble merely con- opposed immediate —as candidate unconvincing. The tion are of future jectural hypothetical or —threat if manual re- that contend Plaintiffs it also remains At the moment injury”). simply re- proceed, are allowed counts bemay order such an whether speculative after those recounts jecting results Indeed, Florida Circuit forthcoming. repair not case will of this the conclusion County considering Vice in Leon Court Bush of the legitimacy damage to final certification President’s contest “broadcasting” the Presidency caused re- President’s the Vice now denied has Vice put a recount that results flawed recounts of manual resumption for quest pertinent But the ahead. Gore President judgment broader part of its been con- already recounts development This action. contest entire those re- cluded, results and the are Plaintiffs the candidate reinforces that Moreover, we publicized. widely counts Moreover, as harm. no serious suffering counting merely reject the contention Supreme earlier, the United States noted injury. cognizable gives rise to ballots the Florida Su- vacated has now Court decision, further raising still preme Court’s viola that a contend Plaintiffs also likelihood substan- about the doubt always consti rights constitutional tion of injury. tial law has Our case irreparable harm. tutes See, e.g., City far, however. (all gone of whom Plaintiffs voter Nor (“No Jacksonville, F.2d at Bush for Governor they voted allege that or the Supreme Court authority from the suffering Cheney) serious Secretary us for cited to has been Circuit No vot- Eleventh injury. imminent facing or harm injury irreparable proposition he election that in this Plaintiff claims er might be a substan- proceeding contest discretionary in a recounts involves This case case, legal is- raising different tially different re- canvassing A boards. ordered sues. law court under state a state ordered count ment) preliminary injunction Sims, needed for a (citing can Reynolds 377 U.S. presumed (1964)). be from a properly substantially 12 L.Ed.2d 506 violation.”); likely equal protection Cun Simply put, principle Adams, ningham v. 808 F.2d 821-22 may law: we reverse a district court’s (11th Cir.1987) (affirming prelimi denial of denial of a preliminary injunction if and nary injunction in alleging action Four only if we find clеarly the court violations, teenth Amendment and finding review, abused its discretion.11 Our there no abuse of discretion district court’s fore, See, highly must be e.g., deferential. rejection plaintiffs argument (“The Importers, Carillon 112 F.3d at 1126 “irreparable injury will presumed be review of a district court’s decision where there has been violation of sub grant deny preliminary injunction rights”); stantive constitutional see also extremely in scope.”); Revette, narrow (3d v. Casey, Hohe 868 F.2d Cir. F.2d at 893 (“Appellate review of such a 1989) (“Constitutional harm is not neces narrow.”). very decision is As we have sarily synonymous irreparable with the explained: necessary harm prelimi issuance of a This limited review is be- necessitated nary injunction.”). areas of con grant cause the prelimi- denial of a jurisprudence stitutional where we have nary injunction is always almost based said that an on-going violation facts, on an abbreviated set of requiring presumed irreparable to cause injury in a delicate balancing of probabilities right privacy volve the and certain First of ultimate success at final hearing with Amendment claims establishing an immi- consequences the of immediate irrepara- nent pure likelihood that speech will be injury ble which could possibly flow chilled or prevented altogether. City from the denial of preliminary relief. Jacksonville, 896 F.2d at 1285 (citing of Weighing these considerations is the re- Oldham, (11th 1176, v. Cate 707 F.2d 1189 sponsibility of the district court. Cir.1983) Ctr., Med. 661 Deerfield (quoting Tours, Id. Line Gray Motor Inc. 338); Hohe, F.2d at see also 868 F.2d at City Orleans, v. New 293, 498 F.2d (“[T]he 72-73 of assertion of First Amend- (5th Cir.1974)) (internal quotation marks rights ment does not automatically require omitted). and additional citation a finding irreparable of injury, thus enti- standard, therefore, abuse-of-discretion tling plaintiff to a preliminary injunction an important serves and vital purpose. he if shows a likelihood of success on the Rather, merits. ... it is the penal- ‘direct In the us, case now before the district ization, opposed as to incidental inhibition, court expressly found that Plaintiffs did of First Amendment rights [which] consti- not meet their burden of showing that ”) irreparable Cate, tutes injury.’ (quoting irreparable immediate harm would if result 1188). 707 F.2d at plainly This is not such preliminary injunctive relief were not en- a case. City Bolden, Mobile v. 446 tered. It did so largely because the limit- Cf. of 55, 76, 1490, 1505, U.S. 64 ed record before it did not support Plain- (1980) (constitutional L.Ed.2d 47 right to tiffs’ claims of harm. That finding critical vote, and the principle equality of among just remains compelling, and the irre- voters, is conferred Equal Protec- parability of alleged injury is no more tion Clause of the established, Fourteenth Amend- today. peg

11. The district court finding did its alleged of tiffs’ injuries as-applied on an basis irreparable no harm legal speculative, incorrect irreparable, and far from principle. contrary, On the the district court stage this process electoral recount that, it, found presented on the record no .... The inconclusive state of these recount irreparable proved. harm had processes been See Sie coupled with their different factual LePore, gel v. F.Supp.2d postures 1052-53 against preliminary counsels uni- (S.D.Fla.2000) ("In addition, time.”). we find injunctive Plain- form relief at this

H79 (4) not dis- injunction would that the say cannot we Accordingly, Haitian interest. See public its broad serve abused court district Baker, Center, F.2d v. Inc. Refugee did not Plaintiffs finding that discretion (11th Cir.1991). 1109, 1110 least a showing at burden their meet injury. irreparable likelihood substantial scope at the outset that I note injury is irreparable proof Because of in- court’s denial district review preliminary to a prerequisite indispensable to whether is limited junctive relief ato are not entitled injunction, Plaintiffs discretion. See abused its district court time; and at this injunction preliminary Co., 180 Gеorgia Power v. Club Sierra affirmed. must be order court’s the district (“The Cir.1999) (11th F.3d Callaway, 489 Authority v. See, e.g., Canal injunction preliminary of a or denial grant (“[WJhere Cir.1974) (5th no 567, 574 F.2d discretion within the sound a decision is proved, alleged is injury irreparable court.”). court The district district appro is injunction preliminary of a denial deciding “in discretion must exercise its at this time does not Court priate.”). The equities balancing the delicately upon and Plaintiffs’ constitution the merits decide v. States United parties involved.” arguments.12 al Cir.1983) (11th Lambert, 695 F.2d Blackstock, AFFIRMED. F.2d (quoting Tatum (5th Cir.1963)). this re 401-02 ANDERSON, concurring Judge, Chief findings of court’s view, district adopt I specially. erroneous, I review clearly but unless fact and issues I issues jurisdictional novo of the Court. de opinion join I Con Unique Financial including, opinion law. See SEC entire subscribe (11th Cir. Inc., reasoning that 196 F.3d alia, cepts, holding and inter injunction 1999). preliminary irrep- “Because failed to demonstrate Plaintiffs have remedy,’ extraordinary and drastic judi- ‘an Although agree I injury. arable than the exception rather the court’s against grant its cautions restraint cial carry the clearly rule, must plaintiff unless nec- issues addressing constitutional Lambert, F.2d 695 persuasion.” for of inappropriate burden not seem essary, it does Int’l, dissents, Texas v. Seatrain to (quoting at 539 the extensive light of me Cir.1975)). (5th 175, S.A., 179 likelihood F.2d 518 views about the my discuss own Plaintiffs’ con- of the merits on of success issues.

stitutional Au- Delegation B. Constitutional thority the States to OF SUCCESS LIKELIHOOD I. the states delegates to The Constitution Review A. Standard implement authority to establish selecting Presidential procedures injunction preliminary seeking party A provides The Constitution electors. following elements: four must establish Manner appoint, such shall State “[e]ach on (1) success likelihood of a substantial direct, a may thereof Legislature ir- as the (2) merits; threat a substantial Const, Electors_” art. U.S. (3) Number injury that its own injury; reparable Code States II, 1, The United nonmovant; § cl. 2.1 injury to the outweighs the necessity of the questions advance tutional the likelihood Court on 12. A decision Indian Lyng v. Northwest deciding reach, them.” to require the Court of success would 439, 445, Ass'n, U.S. 485 CemeteryProtective sense, Even questions. constitutional some (1988). 1323, 1319, 534 99 L.Ed.2d 108 S.Ct. the record who believe that of us for those injury, no the issue of Given our view likelihood support substantial will not necessity present here. merits, "fundamental it is a on the success judicial re- longstanding principle of 1, II, 2 the Consti- Clause of 1. Article Section reaching consti- avoid courts ... straint provides: tution 1180

provides timely appointment inevitably impact, may a manner that pursuant Presidential electors to state law restrict, burden or its citizens’ exercise of is conclusive. See 3 U.S.C. 5.2 The Su right their to vote. See Burdick v. Taku preme Court has confirmed this broad del 428, 433, 2059, 2063, 504 112 U.S. S.Ct. shi states, subject egation power to the to (1992); Anderson, 119 L.Ed.2d 245 460 the limitation that a state exercise not 788, U.S. at at 1570. S.Ct. The Su power in a specif manner violates preme acknowledged Court has that such provisions ic of the Constitution of the necessary restrictions are “if [elections] Blacker, United McPherson v. States. See ” are to fair and honest .... Storer (1892). 1, 3, 146 U.S. 18 S.Ct. 36 L.Ed. 869 Brown, 724, 730, 1274, 415 U.S. 94 S.Ct. Celebrezze, See also Anderson v. 460 U.S. 1279, (1974). 39 L.Ed.2d 714 In the con 18, n. 1573 n. election, text of a Presidential the Su (1983) (stating L.Ed.2d that “[t]he preme Court has confirmed that a state’s expressly delegates authority Constitution in conducting interest an orderly and fair regulate to the States election of election electors,” “generally justify Presidential sufficient to but that this does give power reasonable, states the impose uncon nondiseriminatory restric vote); right stitutional on the burdens Anderson, tions.” U.S. Rhodes, 23, 29, Williams v. 393 U.S. 89 S.Ct. at 1570. (1968) 5, 9, 21

S.Ct. L.Ed.2d 24 (stating preserve To the essential balance be- powers granted the extensive to the power tween states’ govern elections pass regulating states to laws the selection subject of electors is voters’ rights, limitation that constitutional the Su- powers “may these not be exercised in a preme developed Court has a flexible stan- way specific that violates other provisions dard to use in assessing constitutional Constitution”); Duncan Poy challenges to a state’s regulation of elec- thress, (5th 657 F.2d Cir. BUnit tions. The Supreme Court described this 1981) (stating that while the Constitution succinctly standard in Burdick: provides guarantee no against innocent ir [W]hen [First and Fourteenth Amend- regularities in the administration of state rights subjected ment] elections, to severe re- in rare situations where state strictions, election procedures regulation must undermine the basic be nar- integrity fairness and rowly of the democratic drawn to advance a state interest system, exists). a constitutional violation of compelling importance. But when a state provision election law imposes only

While the unconstitutional exercise of reasonable, nondiseriminatory state restric- power prohibited, Supreme Court tions recognized upon has that a the First regula- state’s and Fourteenth governing tions process the electoral will rights voters, Amendment of the State’s appoint, Each State shall in such cerning appointment Manner any of all or of the direct, Legislature as the may thereof State, by judicial electors of such or other Electors, equal Number of to the whole procedures, methods or and such determi- Representatives Number of Senators and to nation shall have been made at least six which the State be entitled in the Con- days before the time fixed meeting for the gress: Representative, but no Senator or or electors, of the such determination made holding Person an Office of Trust or Profit pursuant existing such law so on said States, under the United appointed shall be day, days prior and made at least six to said an Elector. electors, meeting time of conclusive, of the shall be 2. 3 provides: U.S.C. 5 govern and shall counting in the provided If provided, State shall electoral votes as laws Constitution, prior day enacted ap- regulated, fixed and as for the hereinafter electors, pointment of the for its final so far as the deter- ascertainment of the electors any controversy mination of appointed by contest con- such State is concerned.

H81 they allege that these recounts violate the gen- interests are regulatory important of justify rights the restric- constitutional the state’s voters. sufficient to erally arguments, The Plaintiffs advance two tions. equal protection argument and a substan- (internal quo- at 2063 at Id. process argument. tive due I discuss each omitted). and citations tations in turn and cannot on the conclude based precedent addressing con- Our Circuit’s record that the sparse before this Court pro- challenges to state election stitutional deny- court district abused its discretion comparable deference cesses has reflected motion ing preliminary the Plaintiffs’ of elections. We have regulation to state injunctive I the Plain- relief. believe that voters’ exercise of scope that the of held tiffs have failed to establish with sufficient restricted in the state right their to vote is clarity impact a severe burden or on the by'considerations of “[t]he election context rights of Florida voters. See Northeastern in the Con- functional structure embodied Chapter Fla. Ass’n Contractors Gen. of stitution, the nature of the federal court Jacksonville, Fla., City Am. system and the limitations inherent (11th Cir.1990) (“Prelimi- 1283, 1285 F.2d jurisdic- concepts both of limited federal nary injunctions legislative enact- remedy and the afforded section tion ” thеy interfere with the ments —because Aguirre, 619 F.2d 1983 .... Gamza process and lack the safe- democratic (5th Cir.1980);3 see also Cur- 452-53 against error that come guards abuse or (11th Baker, 1302, 1314 802 F.2d ry v. a full trial on the merits —must be with Cir.1986) closely (“Although federal courts granted reluctantly only upon a clear very design scrutinize state laws whose showing injunction that the before trial is voters, federal infringes rights on the Constitution.”). definitely demanded will not intervene examine courts Rather, alleged impacts are reasonable supervise validity of individual ballots justified by and are their furtherance of of a local elec- the administrative details interests important regulatory the state’s extraordinary circumstances Only tion. ensuring complete accurate and election a state election rise to challenge will a Accordingly, Plaintiffs fail to results. deprivation.”) the level of a constitutional requisite showing make the substan- (internal omitted); Duncan, 657 citation on the merits of tial likelihood success emphasized that We have F.2d at 701. claims, thus did their and the district court appropri- is not federal court intervention refusing discretion in not abuse its variety” over elec- “garden disputes ate injunction. grant preliminary al- that redress of irregularities, tion but injuries appropriate leged constitutional Protection Claim Equal C. itself reaches the process if “the election unfairness patent and fundamental point that Florida’s statu- The Plaintiffs claim ” Alabama, 43 F.3d .... Roe v. applied tory provision manual recount (11th Cir.1995) (quoting Curry, 802 F.2d rights of all voters in this case violates 1315). equally because the to be treated heavily to four Demo- my analysis of recounts limited guide principles These crux of the Plaintiffs’ in cratic counties. The likelihood of success their the Plaintiffs’ that some argument challenges equal protection to Florida’s elec- constitutional conducting manual Plaintiffs in counties not argue appeal ballots tion laws. The despite will not be counted by refusing to recounts district court erred that the intent, ballots are not because the recounting voters’ enjoin post-election counties, identical ballots machine-legible, while in four Florida because of ballots Circuit, ren- the former Fifth Circuit dent decisions of in the en banc deci- 3. The Eleventh Prichard, 1, City 661 F.2d prior Bonner v. sion to October 1981. dered 1206, (11th Cir.1981), adopted prece- 1209 1182 conducting manual recounts will notwithstanding

counties were counted the fact argument The boils down be counted.4 to that the identical ballot in the machine- greater certainty in this: there is some count state would not be counted. The every counties than others that voter’s only apparent way to disparity avoid this intent is effectuated. I conclude that this every would be state to use an identi- argument fails to state a violation of the cal counting. method of No court has held equal protection clause. that the mere use of different methods of counting equal pro- ballots constitutes an developed by Under the framework tection violation. a position Such would be Court, Supreme when state election law manifestly inconsistent with the command severely voters’ burdens constitutional II, 1, of Article Section Clause that rights, narrowly it must be tailored to Presidential electors appointed are to be interest; however, compelling serve a less by manner directed each legis- state review, trigger exacting er burdens less Anderson, lature. Accord 460 U.S. at 796 important regulatory and a state’s inter 18; Williams, n. 103 S.Ct. at 1573 n. typically enough justify ests are reason 393 at U.S. 89 S.Ct. at 21 L.Ed.2d able, nondiscriminatory restrictions. Tim Moreover, 24. there nothing uncommon Party, mons Twin Cities Area New or unusual in a state statute permitting 351, 358, 1364, 1370, U.S. S.Ct. regulating (1997) recоunts. The Burdick, Supreme (citing L.Ed.2d 589 2063). Court has 434, 112 acknowledged that pro- recount U.S. at S.Ct. at cedures are a common practical then, step analysis, The first in this is to ensuring means of fair and accurate elec- determine whether Florida’s manual re- Hartke, tion results. See Roudebush v. provision severely count burdens 15, 25, 804, 810-11, 405 U.S. rights of those voters counties not con- (1972). Roudebush, L.Ed.2d the Su- recounts, ducting manual because their preme Court noted with approval that ballots scrutiny receive less than those of Indiana, along states, many with other had voters in conducting counties manual re- made vote recounts guard available to counts. I that it believe does not. against irregularity or error in the tabu- conclusion, In reaching this I note first votes, lation of and the Court stated that that the credibly Plaintiffs could not argue such provisions recount are “within the availability the mere of manual re- ambit of the powers broad delegated to counties, counts in others, some but not I, States Art. 4.” Id. places inequitable right burden on their The attempt Plaintiffs to bolster their to vote. Taking argument logi- its treat-every-ballot-alike argument by sug- cal conclusion would lead to the untenable gesting partisan position that influences have casting method of operation tainted the counting votes would have to be Florida’s manual identical procedures in all recount every states and in county of this case. each state. example, allege For if one Plaintiffs partisan state counted influences ballots (1) hand while another counted intruded in ways: two that the machine, inevitably there would be some Florida Party Democratic selectively re- ballots in the manual-recount quested state that manual recounts in a popu- few example, Bd., 00-11078, For point Plaintiffs (Fla. to the fact No. 2000 WL Ct., some ballots imperfectly 2000), Palm Beach Co. Cir. Nov. punched will be counted Judge least one Jorge manu- Circuit Labarga held that county, al-recount while an identical County Canvassing ballot Palm Beach Board could machine-counted, would not be policy and thus per not follow a se exclusion of ballot, would counted in a not con- but that each ballot must be consid ducting manual recounts. In Florida light Demo- ered totality of the of circumstances Party cratic County v. Palm Canvassing Beach and that where the voter’s intent could be Plaintiffs’ respect to the with Especially significantly indicated that counties lous candidates select political can that concern order votes than Bush votes Gore more counties, to the relevant (2) but also particular and that advantage; political gain to the discretion of concern about Plaintiffs’ guiding standards statutory lack of the boards, has an any candidate canvassing grant to decisions canvassing boards’ the to equal opportunity an and equal right partisan influ- permitted manual recounts any county. manual recounts request decisions. those to influence ences 102.166(4)(a). The Florida § See Fla. Stat. safe- several provides itself The statute parties political the clearly placed statute suggest- kind of abuses the against guards right of this notice in this case on to the Pursuant stat- by the Plaintiffs. ed relevant safeguards Other opportunity.6 request, can ute, party or a candidate include: concerns the Plaintiffs’ both of to recount, the mandate, manual a not and decision request that both the the fact canvassing by a made is decision statutory by the standards guided must be statutorily desig- of three composed board and correct- intent determining voters’ of county court a officials, including nated outcome, the could affect ing error partici- an activе whom is of judge, none 102.166(5), (7)(b); that the fact § see id. any candidate. candidacy of the pant made, ad hoc not is decision the canvassing § The 102.141. Fla. Stat. See composed board, existing board by an but standardless, but is discretion board’s officials, including statutorily designated of statutory purpose by a guided rather partici- are not active county judge, who a voters and the intention determining candidate, candidacy any the pants in vote tabulation error the correcting “an canvassing 102.141; that § the fact id. see the outcome of elec- affect the which could manual ‍​​​​​​‌​​​‌‌​‌‌‌‌‌‌​​​‌‌‌​‌‌​‌​​​​‌​‌​​​‌‌‌​​‌​‌‍recounts meetings and board 102.166(5). law fur- § Id. tion.” see id. public, to the open must be board meet- canvassing that provides ther 286.0105(1); fact 102.166(6), and the §§ id. public. See open ings must be is sub- decision canvassing that a board’s canvassing 286.0105(1). Finally, See Broward review. ject judicial to deny manu- grant to decision board’s Bd., at 508. 607 So.2d Canvassing County judicial review. subject al recount severity impact assessing the Canvassing Bd. County Broward vote, of evi- scarcity the (Fla. right on 4th DCA 607 So.2d Hogan, signifi- record is also instant dence in 1992). has manual recount been Once appeal, record this sparse cant. On pro- are authorized, safeguards statutory have Plaintiffs conclude fair I cannot results that the vided to ensure at for relief showing requisite made the by partisan untainted and accurate I cannot stage. preliminary judgment combination manipulation.5 have established boards, Plaintiffs conclude canvassing composition fraud. manipulation partisan actual their discre- guiding statutory standards any can- claim do not The Plaintiffs availability judicial review tion, and the unfairly refused conduct vassing board meaningful on exer- checks provides appeal argue on They manual recount. canvassing boards cise discretion may have a canvassing board officials influences partisan risk of and reduces in the outcome interest strong personal tainting process. Indeed, manual ascertained, reveals that the the record in- satisfactorily fairly and Thursday, No- requested on were given recounts effect. tent should Republican Par- that the vember described provisions are These 5. infra County and in Miami-Dade ty representatives 1188-89. responses opposing County filed Broward day, within same well recounts manual lacked do not claim The Plaintiffs 6. making statutory deadline the 72-hour recounts timely notice that actual i.e., counties, midnight on requests in other requested the Florida Democratic were 10, Friday, November at issue in this case. counties Party in four election; however, a vague allega- subject the such statutory restraints and manipulative possible tion of a or discrimi- safeguards, all as discussed above. There natory motive does not rise to the level of interests, are strong and obvious state severity required scrutiny to merit strict administrative, practical both and support- protection equal the Plaintiffs’ claims. ing Florida’s decentralization of this func- standard,

Applying a reasonableness county tion to level. I cannot conclude therefore, judge constitutionality to require Constitution would provision, manual recount Florida’s see any manual recount be state- conducted Burdick, 504 U.S. at S.Ct. wide.7 A requirement statewide would im- I would conclude that the state has suffi- pose very significant administrative bur- ciently strong justify interests to the man- den, one, unnecessary an often recounting ual of votes within the estab- there are innumerable circumstances in statutory lished provided framework. As which a manual recount would be warrant- statute, plain language of the ed in a single county. The decision to provisions manual recount designed to decentralizе is both reasonable nondis- remedy errors the vote tabulation Indeed, criminatory. so, in doing Florida “which could affect the outcome of the is merely exercising power expressly election” and to arrive at the true “voters’ II, delegated § in Art. cl. and it is 102.166(5), (7)(b). §§ intent.” Fla. Stat. exercising power by following a strong has interest in ensuring pattern same of federalism reflected that the results of an accurately election Further, Constitution itself. respect with reflect the intent of its voters. A manual designation Florida’s of candidates and recount provision as a supplement to me- parties as the entities authorized to re- chanical counting provides a valid method recount, quest a manual this would seem to voters, to discern the will of where doubt be a natural They and reasonable choice. is raised as to validity of a machine count. likely are the ones most to be alert problems tally.8 with a machine Permit- With respect to the county-by-county candidates, ting only political parties and differences which the allege Plaintiffs vio- committees, voters, but individual equal protection late their rights, the state request recounts practice common legislature expressly delegated to each among the I states.9 believe that county Florida’s the decision-making authority re- garding interest whether and efficient how to conduct man- administration recounts, ual within the elections justify context of the is sufficient to its decision statutory standard procedures, provide and to implementation for the of its Many 7. process states person); (candidate); decentralize this § with- IOWA CODE 50.48 requiring out statewide recounts. (candidate § LA. REV. STAT. 1451 3-12-11-1 political party); or ME. REV. STAT.ANN. tit. powerful 8. There are obvious and reasons not 21-A, candidate); § (losing 737-A MD. permit trigger individual voters to a manu- ANN., § CODE. (losing Elections 12-101 can- recount; al their adequately rep- interests are didate); (candi- § MO. REV. STAT. 115.553 parties, resented the candidates and date); (candi- § N.J. STAT. ANN. 19:28-1 participation individual voter likely would date); 26, § OKLA. STAT. ANN. tit. 8-111 nightmares. lead to administrative (candidate); (can- § OR. REV. STAT. 258.161 didate, political clerk); party county or TEX. Many permit states trig- recount to be (candidate); § ELEC. CODE ANN. 212.023 gered only upon candidate, request of a (candidate); § VA. CODE political committee, ANN. party 24.2-800 political and/or (candidate § upon WASH. REV. CODE appeal but not 29.64.010 of an individual vot- See, political party); e.g., § er. (candidate); W. § ARK. CODE ANN. VA. CODE 7-5-319 3-6-9 (candidate); (candi- § COLO. WIS. § REV. STAT. STAT.ANN. 9.01 1-10.5- (candidate); date); § §§ IDAHO CODE WYO. 34-2301 STAT. ANN. 22-16-109 & (candidate); (losing IND. CODE ANN. canvassing 3-12-11-1 candidate or (candidate political board). party's county chair-

H85 votes; merely the count. verifies value of it decentral- provision recount manual have held foregoing cases which the Unlike ized, basis. localized weighting of systematic unequal that the deprivation the that My conclusion unconstitutional, here is no there votes is not does the Plaintiffs alleged by rights inevitable, automatic, systematic grant- or the by scrutiny supported strict merit to the choices ing greater weight in cases case and this between contrast class of voters. voter or applied Court has Supreme the by supported is further This conclusion involved cases have scrutiny: those strict itself, the Constitution the fact that right to vote deprivation complete 2, II, 1,§ that contemplates cl. Article based on weighting of votes differential (potentially its own each state will direct In O’Brien impermissible classifications. different) 740, appointing Presiden- 524, method Skinner, 38 94 S.Ct. 414 U.S. v. state, federal each tial electors. (1974), Court Within Supreme the 702 L.Ed.2d acknowledged that diverse courts have a state scrutiny to invalidate applied strict employed. be See voting denied methods completely that sсheme electoral Bd. v. North Carolina State on arbi- Hendon to vote right the based individuals Cir.1983) (4th 177, Elections, 533, 710 F.2d 181 id. at S.Ct. See trary distinctions. Rash, 89, 91, v. 380 U.S. (citing Carrington New York absentee (invalidating a at (1965)). 775, 777, 13 L.Ed.2d 675 85 S.Ct. deny to other- operated statute that ballot that vote, has confirmed Supreme to The Court right the eligible prisoners wise of a within the ambit recounts are county of well prisoner’s solely on the based Roudebush, 405 U.S. authority, see incarceration). state’s reasoning of O’Brien The 810-11, manual 25, however, 92 S.Ct. here, Plain- at apply not does commonplace has been counting of have been ballots they not assert do tiffs light of the constitu- historically. In the have their or to right to vote denied states, authority to the delegation of rather, tional counted; they assert vote law, man- I believe case unequal treat- confirmed received votes have them counties, identi- while recounts some counting process. ual post-election ment counted counties are ballots cal other cases, the one-person, one-vote In the machine, and the only by recounted states’ has held that Court Supreme produce, will that this variances inevitable arbitrarily systems, which weighted voting severely burden not in themselves do lesser voice granted a systematically to vote. right geographic on their voters based some to pro- statutory manual recount equal Florida’s location, right the voters’ violated ability limit the Plaintiffs’ does not Ogilvie, 394 U.S. vision Moore v. protection. votes, under- significantly nor 1496, their cast 23 L.Ed.2d 89 S.Ct. will be certainty that their votes Sims, 533, mine the U.S. (1969); Reynolds en- permits the statute 1362, 1382, While 12 L.Ed.2d counted. 563, 84 S.Ct. ballots given be scrutiny to Sincock, hanced U.S. (1964); Roman parties candidates or where 1449, 1458, 12 620 counties 709-10, L.Ed.2d 84 S.Ct. canvassing boards and the Sanders, requested (1964); 372 U.S. Gray v. recount, a manual 801, 808, have authorized 379-80, 9 L.Ed.2d 821 en- safeguards to ample provides (1963). those cases statute presented The facts conduct here, decision however. sure facts different from are recounts, in which-the manner and the counties ballots of voters The fair, conducted, open, receiv recounts recounts are conducting manual potential is some there While votes else than are accurate. weight ing greater by those manipulated the statute to scrutiny additional in Florida. where interests, record sparse partisan manual with Florida’s under ballots afforded my opinion establish does not in here weigh does not procedures recount showing partisan fraud miscon- D. Substantive Due clear Process Claim required prelimi- duct that would be argue counting The Plaintiffs injunction stage. Nor nary does rec- procedures conducting used counties reveal concrete evidence of substantial ord manual recounts are arbitrary and rife in manual counting or uncorrected errors irregularities with that constitute a denial generated that have erroneous vote tabu- process. Specifically, of due the Plaintiffs Therefore, I that lations. conclude at this allege that the to have failed to standards used decide stage the Plaintiffs suffi- ciently impact a severe on demonstrate which punches marks or on a ballot are rights, equal protection their so that counted as county votes differ from to scrutiny heightened of Florida’s manual county and further that these standards Burdick, recounts is not merited. 504 have been changed mid-count in one coun- I at 112 S.Ct. at 2063. believe U.S. ty. I believe that the record evidence fails important regulatory inter- Florida’s to alleged unreliability establish that the justify reasonable, ests are sufficient to the inaccuracy of manual rises recounting to nondiscriminatory impact the Plaintiffs the level of a right sеvere burden on the to voting rights.10 to their have shown vote. reasons, foregoing For the I would con- Baker, (11th In Curry v. 802 F.2d 1302 the Plaintiffs have clude failed to Cir.1986), we refused to find a prove a likelihood of constitution- success the merits equal protection of their claim. al violation in a gubernatorial state eandi- argument 10. Much of Plaintiffs' focuses on is an error in the vote tabulation that could assumption the that a candidate's self-interest Nothing the outcome of the election. affect selecting likely produce in counties to more suggests that the statute means the "out- undervotes for him introduces an invidious rather, particular county; come” in that the My and unconstitutional discrimination. dis- says statute "outcome of the election” itself. in text cussion reveals the weaknesses which Nothing suggests canvassing that a board argument. summary, I see in this In a candi- may potential not consider the effects of other mandate, only request, date can not a re- recounts in its own decision to authorize a by county count. The decision is made a Nothing prevents manual recount. a candi- canvassing board with several built-in statuto- party requesting date or a a manual recount ry safeguards including composition the — officials, (preordained notifying county canvassing the board cluding county judge, board of the fact in- none of whom can be may that other counties authorize or have any candidacy), active statutory in standards authorized recounts which guide to (relating the board’s discretion here, change applied the vote totals. As intention of voters and an error in the me- record before this Court does not reveal a tabulation), chanical and the fact that Party motive deprive Democratic to meetings open board’s must be and are sub- Republican Party opportunity request of its ject public scrutiny and court review. requests challenged manual recounts. The Strong support county-level state interests de- rather, here were strategically delayed; centralization; mandating statewide recounts requests the 2000, were made on November every impose in instance would severe admin- more than hours before the 72-hour istrative burdens. Rather than invidious dis- deadline, crimination, leaving ample suggest time for opposing I that the statute con- templates parties that candidates or requests candidate to response. make Per- appropriate request entities to make such be- mitting request candidates to recounts is a prompts cause their self-interest them to be way promote reasonable legiti- the state's problems tally alert to in a machine strong mate and ensuring interest in a full might appropriate. make a recount Like the and accurate count of ballots where the vot- statutory contemplation, requesting candi- ers' fairly satisfactorily intention can be contemplate date any oppos- would also ascertained, especially any request so when ing candidate problems would be alert to statutory safeguards circumscribed counties favorable right equal to him. There is an Indeed, provided many permit here. states equal and an opportunity in that re- political parties candidates or request such spect, clearly as stated in the statute. Noth- recounts; arguments prevail, if Plaintiffs' ing suggests in the statute only a candi- laws, losing many particular many date status of elections, state election can make a request county; statutory standard constitutionally suspect. would be

H87 against irregulari had inadvertent errors that election officials argument date’s ties; instead, provide id. at 1319. We state law must ballots. See miscounted that, pro- the election order for R- remedy); Pettengill County stated v. Putnam point “patent (8th Dist., to reach the cess 1 Sch. 472 F.2d Cir. unfairness,” the “situation 1973) fundamental (refusing to intervene in a controver ordinary dispute go beyond well must sy illegally over whether cast ballots were marking of ballots.” counting over mistakenly counted local election offi (quoting Poythress, Duncan v. Id. (2d cials); Power, Powell v. 436 F.2d (5th Cir.1981)). F.2d Cur- Cir.1970) (concluding that no federal reme federally protect- that a ry, emphasized we human error dy resulting existed for en- right implicated ed “where the mistakenly non-party members allowed to part process including tire election — in congressional primary). vote judi- administrative and thereof the state’s Despite in precedents, these reliance on process on its face to cial corrective —fails Alabama, opinion in Roe v. our 43 F.3d fairness.” Id. at 1317 afford fundamental (11th Cir.1995), argue 574 the Plaintiffs 1078). F.2d at (quoting Griffin, 570 in post-election changes that ballot-count in principles resonate numerous These ing procedures fundamentally unfair holding disputes over federal cases “garden above the level of thus rise in human or mechanical errors ballot variety” disputes election to constitute a counting, showing absent a of intentional Roe, violation. In process substantive due do not rise to the level of a manipulation, a state court would have forced Ala order Gold federal constitutional violation. See election officials to count absentee bama (2d 796, F.3d Cir. Feinberg, 802 rejected pursuant ballots that had been 1996) (holding resulting that human errors in a state statute and accordance with votes, miscounting presence in previous practice.11 See id. at 578. state ballot, on and the ineligible candidates post-election concluded that such a We delivery voting machines to some late departure statutory from the state’s man a places, did not rise to the level of polling practice election would previous date and adequate violation because constitutional the fundamental fairness of the undermine existed); remedies Bodine v. Elkhart state explained As we election. See id. 581. (7th Bd., County Elec. 788 F.2d Roe, fact in our decision was based Cir.1986) (concluding voter-plaintiffs change that such a would disenfranchise claim where failed to state constitutional would have voted absen people those who in mechanical and human error resulted tee, by doing were so but deterred votes, counting in but where there errors complying statutory with the the burden of allegation no that the defendants act was bal requirements completing absentee election); with intent to undermine the ed id.; Burns, lots. See see also (5th 619 F.2d Aguirre, Gamza v. Griffin (find (1st Cir.1978) 570 F.2d 1078-79 Cir.1980) (concluding allegations unfairness in a state’s un ing fundamental state a negligent counting vote did not of absentee foreseeable invalidation ballots claim); Hennings v. constitutional Graf (7th Cir.1975) disqualification in of ten which resulted ton, 861, 864-65 523 F.2d in primary total votes cast percent of the (stating process rights that while due election). Yoshina, F.3d Bennett v. implicated showing on a of “will would be Cf. Cir.1998) (9th (rejecting a sub organic ful conduct which undermines challenge to Hawaii’s process stantive due by which candidates are elect processes ballots as votes ed,” decision to count blank guarantee protects no constitutional previous practice undisputed required in Roe that applicable Alabama statute statute, Alabama, been accompa- as mandated had their in absentee voters to send ballots disregard ballots that were mailed absentee an affidavit which was either nota- nied required affidavit. signed by in without the two witnesses. It was rized or convening pre-election a state constitutional against procedure that rises to the level of convention, fundamental unfairness. suggestion where there was no in that voters favor constitutional Second, Roe is distinguishable because previ had relied on the state’s convention this record does not show detrimental reli- disregarding blank ballots practice of ous case, ance voters. this there is no vote); convention in a Parti constitutional suggest evidence to voter Perez, Progresista v. Barreto Nuevo do county adequately failed to mark punch or (1st Cir.1980) (holding 639 F.2d ballot reliance on a that a vote belief Supreme Court of Puerto Rico’s some other would not be count- mismarked ballots where decision to count only partially ed if a ballot were punched, i.e., intent of the voter was clear did not an anticipated reliance on lack of a Indeed, process, due because there could recount. it would be violate manifestly suggest unreasonable to such by any reliance have been no detrimental Quite contrary, reliance. the statute invalidity assumed of mis- voter on the expressly puts pos- voters on notice of the ballots). marked sibility of a manual recount. As a corol- distinguishable Our decision Roe is reliance, lary to this obvious lack of signif- from the instant case at least two ease no involves disenfranchisement of First, ways. stage icant at this voters, unlike the disenfranchisement litigation, the record does not establish the people Roe of who failed to vote absentee requisite showing significant post-elec- of a because of the imposed by inconvenience departure tion from Florida’s manual re- statutory require- notarization/witness practices count before this election.12 Un- ment. Roe, like the circumstance where the In addition to the lack of detrimental post-election change procedure of violated reliance voters on previously Florida’s mandate, statutory a in this case Florida’s procedures, established election the record expressly provides statute for manual re- before us not sufficient to conclude that counts and establishes the voter-intent clearly the district court was erroneous in standard to used in conducting the re- declining purposeful, systematic to find counts. While the Plaintiffs alleged have discrimination the manual recounting that canvassing various boards have used procedures fact, employed. In the manual different standards or have changed their recount procedures statute mandates to respect standards with to analysis of ensure accuracy fairness and in the con- particular ballots, physical attributes of duct any manual Any recount. manual alleged any Plaintiffs have not that board recount must include at percent least one has departed good-faith from a attempt to of the total votes cast and at least three determine Thus, the voters’ intent. 102.166(4)(d). precincts. § See Fla.Stat. have Plaintiffs failed to any depar- show A manual open recount must be to the statutory ture from mandate or public, from a counting teams must have at present 12. There remain in the fairly record suffi- satisfactorily could be ascertained. disputed cient significant Party facts as to See Florida Democratic v. Palm Beach Board, 00-11078, County change practice Canvassing I No. that cannot conclude (Fla. 2000 WL 1728721 Palm necessary clarity with Beach Co. Cir. any significant that Ct., 22, 2000). statutory Nov. standard— pursuant number of votes was counted to a i.e., the determination of the voter's intent changed practice. discretion, Canvassing within the Board’s My opinion change, would not even assum- subject judicial to review—has remained con ing may that there change have been a stant. assuming change Even some with re practice i.e., counting only partially de- spect discretionary interpretation — counting tached chads to ballots that were not ballots, particular physical attributes of there detached, partially totality but under the practice is no evidence in this record that a the circumstances the implemented intention of the voter has been which is inconsistent

H89 me that these safe- are, persuade have failed to possible, when who two members least The district court parties. guards were ineffective. political two of at least members (7)(a). 102.166(6), found, at stipulated Determination on the evidence § based id. See statutory stan- is the intent “no evidence been hearing, of the voter’s has 102.166(7)(b). Florida law §id. have dard. See these recounts demonstrated the decisions actions provides Based generated erroneous tabulations.” subject to canvassing boards evidence, I cannot my on review of the to review, respect with judicial finding clearly this was erro- conclude that a to conduct on whether their decision neous.13 above, recount, but as discussed circumstances, I am not Under these validity of general respect also with Plaintiffs have made persuaded Beckstrom See counting procedures. their impact of a requisite showing severe Bd., Canvassing County v. Volusia record, they vote. On this right their Esteva, (Fla.1998); Boardman So.2d 720 rises prove failed to case have (Fla.1975). courts State 323 So.2d dispute “garden variety” a over above chal- to review election authority counting of ballots to reach level or by a candidate brought whether lenges, Flori- unfairness. Because fundamental under Fla. Stat. protest party as interests, as discussed strong state da’s candidate, 102.166, qual- brought by a § above, vote-counting justify a decentralized voter, under taxpayer as a contest ified fail that the Plaintiffs I conclude process, A court void 102.168. Fla. Stat. proving of success to show likelihood a find- based on challenged election result claim. Be- process due their substantive raise irregularities that ing of substantial fail show a substan- the Plaintiffs cause whether the elec- doubt as to reasonable on the of success merits tial likelihood will of the voters. express the tion results claims, they fail their constitutional Beckstrom, These 707 So.2d court abused the district that demonstrate pro- to are statutory safeguards calculated denying in the motion its discretion the abuses that the the risk of against tect injunctive relief.14 case, preliminary the Plaintiffs In this Plaintiffs fear. standard, pro- to similar constitutional statutory was the vote is entitled as plain with the right of Amendment asso- as the First tections in case Roe. 89, Rash, ciation); 85 Carrington v. 380 U.S. observa- this record reveals isolated While 775, (1965) (holding L.Ed.2d 675 S.Ct. 13 might a fact finder of acts from which tions right vote is a fundamental right that the to chad, dislodge a I cannot effort to infer an Clause). by Equal Protection protected clearly court was that the district conclude prohibits the They argue that the Constitution of actu- I see little or no evidence erroneous. by officials of discretion overbroad exercise chad, dislodge a or that ballots therefore, to and, al intent rights First Amendment over already they were when were counted violates the Constitution. statute that Florida’s pres- Movement, dislodged. note partially I also that County Forsyth v. Nationalist See 2395, 2401, 129-30, Republican and Democrаtic observ- ence of S.Ct. 112 505 U.S. ers, scrutiny, (1992) public (stating an "im- to the intense that in addition 101 120 L.Ed.2d ex- integrity process. suppression of permissible of the ideas” helps ensure the risk to overly delegates ... ordinance ists where "an allege a Amend- Plaintiffs also First 14. The decisionmaker”). to broad discretion violation, essentially arguing Flori- ment argument, cases Contrary the Plaintiffs’ county canvassing grants board da's statute standards implicating Amendment First impinge on unlimited discretion members might speech be pure involved claims arbitrary re- rights through decisions voter’s Forsyth altogether. prevented or chilled recounts. garding to conduct manual 129-30, whether at 112 S.Ct. County, 2401; U.S. at argument, the of their Jacksonville, In articulation another at 1285 City 896 F.2d canvassing argue Oldham, board’s that the Plaintiffs F.2d (citing (11th v. Cate Ctr., governed by 1983) no The are standards. decisions Med. and Cir. Deerfield pro- 338). right In argue that the to vote such a case. This is not Plaintiffs F.2d at stead, vote, right and the Williams by Amendment. See the constitutional tected the First voters, 5, 10, 30-31, protect among Rhodes, equality principle of 393 U.S. Equal Clause Protection (1968) under the (stating right to ed that the 21 L.Ed.2d they islative enactments —because inter-

II. CONCLUSION process fere with the democratic and lack reasons, I foregoing would con- For the safeguards against or error that abuse that Plaintiffs have failed establish clude come with a full trial on the merits —must of success warrant- likelihood substantial reluctantly only upon a granted court intervention on either ing federal injunction showing clear before process grounds. equal protection or due definitely by the trial is demanded Consti- majority of a of this court The conclusion tution.”). I cannot conclude that Plaintiffs did not abuse its that the district court sparse on this record have demonstrated had concluding Plaintiffs discretion showing, respect clear either with failed to establish a substantial likelihood irreparable injury, likelihood of success harm, my conclusion in irreparable showing and thus have not made a clear concurring opinion Plaintiffs have injunction definitely that an before trial is failed to establish substantial likelihood demanded the Constitution. success, supported by the lack of reasons, foregoing spe- For the I thus development in evidentiary this case and concur, in cially joining addition to preliminary injunction posture of by the opinion of the court. Especially significant the case. our con- sparse of this sideration case is the record TJOFLAT, Judge, dissenting, Circuit pro- on which Plaintiffs have chosen to DUBINA, BIRCH Circuit The ceed.15 record before us is without CARNES, Judges, join and in which discovery evidentiary the benefit of Judge, joins to Part V. Judge Circuit as Where, here, hearing. party has cho- Tjoflat’s dissent in Touchston v. forego evidentiary hearing, sen to it is McDermott: disputed represen- not entitled to have its I dissent. The Florida election scheme accepted as tations true. See Charette v. (2d issue is unconstitutional for the reasons Oyster Bay, Town 159 F.3d Cir.1998). my forth in dissenting opinion set scant evidence this rec- McDermott, Touchston No. 00-15985 ord has not been tested the adversarial (11th 2000) Cir. Dec. Judge process, notwithstanding the fact that ma- dissenting opinion. Carnes his dispute. terial and relevant facts are in addition, preliminary injunction pos- BIRCH, Judge, dissenting, Circuit in of against ture this case cautions federal DUBINA, which TJOFLAT and Circuit court intervention. See Northeastern Fla. Judges, join: Chapter Ass’n Gen. Contractors of Jacksonville, Fla., City Am. v. 896 F.2d While I concur in dissenting opinions 1283, (“Preliminary injunctions leg- by my Tjoflat, colleagues, Judges Dubina instead, City rights; Fourteenth Amendment. statutory safeguards Mobile v. en- Bolden, 55, 76, 1505, 1490, reasonable, 446 U.S. 100 S.Ct. only nondiscriminatory sure bur- Sims, (1980)(citing Reynolds 64 L.Ed.2d 47 v. important dens. I conclude that Florida’s 533, 1362, accurate, 377 U.S. (1964)). 84 S.Ct. 12 L.Ed.2d 506 ensuring complete interests in elec- results, I сonclude that the Florida manual strong tion and the state's interest in equal protection recount statute satisfies be- system its established of decentralized admin- constitutionally elections, reasonable, cause it contains sufficient justify istration of standards to constrain the discretion can- nondiscriminatory impact of Florida's manual vassing board I officials. describe the statu- rights. recount statute on voters' The Plain- tory judicially imposed and constraints on tiffs thus fail to establish a First Amendment these supra officials’ discretion at 1171-73. violation. constraints, Based on these I conclude that 27, challenged provisions of Florida election 15. We noted in our November Or- permit overly law do permanent not officials to exercise der that Plaintiffs’ motion for in- rights. junctive broad discretion over voters’ pending relief has remained court, I thus conclude that the Plaintiffs have district and that court has remained voting failed to show a severe development. burden on their available for further factual

H91 standards, manual Florida’s recount Carnes, about consti- my concern and pass constitutional muster. scheme cannot cases alleged these deprivations tutional lack of standards on the is focused Moreover, to which Congress, manual in the Florida principles guiding ultimately Florida will be electors from statutory elec- Florida’s statute. recount certified, harbor, has established safe recounts to be envisions hand tion scheme 5,§ requires that such rules U.S.C. process, providing integral part of an standards be established and before the vote “error[s] there check when legisla- Because the 1989 Florida election. outcome could affect the tabulation view, has, respon- my ture abdicated its Fla. Stat. Ann. election.” See constitutionally sibility to formulate clear 102.166(5). legisla- 1989 Florida § The objective statutory rules and stan- and however, ture, its responsibility abdicated Florida, it process for the election dards for en- meaningful guidelines prescribe throughout has disenfranchised voters manual recount would suring such responsible state.2 well-intended accurately, uni- fairly, conducted be canvassing boards across the state legislature was Florida’s formly. While terms, an given, legislative have been un- power with the unquestionably vested in- the voter’s unfunded mandate —discern II, of the United Article Section One der in- any objective statutory tent without pro- to devise its own Constitution States accomplish goal. that laudable structions electors, it selecting for the state’s cedures unguided, such an standard- The effect of to ensure that whatever required less, was also as- subjective evaluation of ballots to with the comported process it established voter intent is to cause votes be certain counted) require- (or process and due equal protection counted not to be based subjec- the Fourteenth Amendment unguided ments of upon the disparate states, (two Other members opinion partisan that same Constitution.1 tive Indiana, provided canvassing have clear partisan voting) as such are elected in under which as to voter opinions definitive standards their board.3 Since judi- meaningful See Ind. no are to be conducted. intent are standardless recounts a Florida part possible review is court. (providing cial Code 3-12-1-9.5 abridgement to by finding pierced Accordingly, count chads that have been vote, ir- right to votes, the voters’ constitutional those with indentations valid but and no fur- presumed, harm is reparable card separated ballot that are injury not). showing of need be made.4 ther clear and certain Absent similar do 818-19, injury suffered 4.We indicated Ogilvie, 394 U.S. 1. See Moore " (1969) 'irreparаble' only if it by plaintiff cannot 23 L.Ed.2d monetary through remedies.” the Fourteenth undone (discussing applicability Adams, nominating Cunningham 808 F.2d process Amendment end, candidates). Cir.1987). (11th pre we have presidential To that plaintiff irreparable to a harm when sumed Baker v. 1989). rights are violated. See (West certain core § 102.166 2. See FI. Stat. Ann. 167, Alabama, 574, Corp., 856 F.2d 169 Buckeye Cellulose 43 F.3d generally Roe v. Cir.1988) curiam) (11th presumed Cir.1995) (irreparable harm (11th (finding (per 581-82 Oldham, cases); F.2d v. objective after Title VII Cate of standards alteration Cir.1983) (11th voters). (irreparable injury disenfranchised the election of First Amendment presumed violation City v. rights); Med. Ctr. (providing § Ann. 102.141 of Deerfield 3. See FI. Stat. Deerfield Beach, (5th B Cir. Unit 661 F.2d County Canvassing be com- Board shall 1981) presumed (irreparable injury from vio county judge, of prised a court chairman of privacy under Four right of lation county and su- of commissioners the board Amendment); Northeastern Florida elections; teenth Ann. pervisor of FI. Stat. City Chapter Gen. Contractors 124.01(2)) popular (providing election for of Ass’n of Jacksonville, Florida, 1285-86 F.2d commissioners); Art. FI. Const. Cir.1990) (11th (explaining the basis for 1(d) popular (providing for election Sec. injury in Cate elections). irreparable and presuming supervisor hope they human— that from these events will come said that to err is It has been Thus, understand, it should not be appreciate, humans vote. if not the role of and voting process that the is sub- surprising Third Branch in life of government’s However, as demonstrated ject to error. precious democracy. our func- Our basic election, fre- Presidential in the recent society a provide tion is to forum variety and of error quency, magnitude (al- disputes great and small —both of this with the exercise sacred associated involved, though dispute is nev- to those astounding at once right citizenship “small”) orderly, er decided in an be—can Moreover, deeply troubling. the me- and manner; peaceful high and with a level of campaign preceding on the No- dia’s focus Lawyers, in the outcome. confidence as 7, having eclipsed by been its sub- vember court, integral to that officers of the frenzy, average left sequent has citizen process system. our adversarial and at the worst skeptical, at the least right particularly for the vote— cynical, about our democratic institutions. States, office of of the United President incarnation, Moreover, present in its Commander-In-Chief, our one of the —is brings debacle that these post-election rights most central of our fundamental in a cynically to us for resolution be cases democracy.5 Accordingly, any dispute that depicted by Congress- viewed some legitimacy presiden- has at its core the of a Shirley woman Chisholm: tial impacts upon every election and citi- [Pjolitics is a beautiful fraud that has vote, right to zen’s deserves the most care- imposed people years, been on the study, thought ful and can wisdom we practitioners exchange gilded whose humanly bring to bear on the issues en- promises for the thing most valuable Thus, compelled trusted to us. I feel their victims own: their votes. And who my attest to the fact that brother and lawyers. benefits the most? The judges sister have embraced this case with Chisholm, Shirley Unbought Anita concern, duty, sense of and conscientious Unbossed, respond way 1970. To worthy hard work that of the issues would be a mistake. before us. While our every nation’s citizens have concerned, right exasperated, importance to be fa- Aware of the of these cases6 tigued cynical, my and even it is urgency fervent attendant to the issues given "intangible was that na- each State is affected the votes cast for Deerfield alleged, plaintiffs ture" of the violations the various candidates in other States. effectively compensated by could Thus in a Presidential election State's monetary damages). award of Richard stringent enforcement more ballot access Cf. Co., deadlines, Feiner & v. requirements, Co. Turner Entm’t 98 F.3d including filing (2d Cir.1996) (irreparable presumed harm impact beyond has an its own borders. plaintiff prima when establishes a facie case Similarly, important the State has a less copyright infringement). regulating interest in Presidential elections elections, than statewide or local because 5. An executive like the President broad has largely the outcome of the former will be discretion; power every he has the to affect beyond determined voters the State’s voter, every permitted and thus voter must be boundaries. to vote and to have his ballot both counted equally weighed. Supreme As the Court appropriate 6. These cases have arrived Celebrezze, observed in 780, 794-95, Anderson 460 U.S. juncture present circumstances ar.e 1564, 1573, extraordinary scope such an that the "chal- (1983) (citations omitted): L.Ed.2d 547 lenge to a state election rise[s] level of election, Baker, the context a deprivation." Curry [I]n of Presidential constitutional state-imposed (11th Cir.1986). implicate restrictions a 802 F.2d Roe, uniquely important national interest. For 43 F.3d at 585. The dissent in Roe opined the President and the Vice interject President of the that federal courts should not United disputes States are the elected officials themselves into "state election unless represent extraordinary who all the voters in the affecting Nation. circumstances the in- Moreover, impact tegrity the the process of votes cast in of the state’s election are thought- that a careful and hope I would these dis- to take decided we presented, my opinions the of brothers is, ful review of the entire before en banc—that putes any suggestion Moreover, dispel sisters would utiliz- and judges.7 of twelve court important on their views the issues normally employ that that we procedure a ing the result of cases, anything us are but arranged we before penalty in death analy- days study thoughtful of careful courts and of district clerks the the through opinions are nothing these filings all there sis—because copies have involved to I duty. proud have done our am (i.e., con- We with us less. copies provided) “lodged” my judicial col- Hence, be associated with we have been to temporaneously.8 to dis- leagues upon that been called progress of have study and the to review able respective their constitutional obli- charge presented matters legal factual and the reluctantly on gations, Accord- albeit this inception. cases from their these —both many state and federal court and the other notices of anticipated the ingly, long before involved. Indeed these recent filed, bringing them courts appeal formally were lesson for have been a civics us, study and review events about the to we were Thus, they young; but particularly the to be resolved. legal the issues some— that our na- case have also been reminder opinions9 this of our the reader system governance has tion’s weathered time for con- that our understand should tumult; the old three- test of time and considerably longer the been has sideration legged stool10 still erect with stands at blush. might appear it first than strength support hopes the to sufficient was divided the electorate Just as citizens. dreams of our nation’s votes to cast their good faith effort their jurist, quotable executive, revered the mem- nation’s chief for our Hand, spirit once “The Learned observed: discharged their have this court bers of tоo liberty spirit is the which not sure context of interpret the law in the duty to “right” ...”11 right it is While that sincere effort. in an unbiased and this case many things, I am confident we about that a opine will Inevitably pundits attention given these matters the have linked to judge’s decision is somehow least, that, trust they justly deserve and of the President political affiliation an in- groundwork have laid we at all lev- judge. While we appointed justices of by the decision formed expect judiciary have come els of they Supreme Court should States United regret we continue observation case. judgment to hear this exercise their It be true that is so. some “think” they do. We have my hope that done may re- It judicial philosophy judge’s that a they do their so that can best. our best flect, degree, the philosophy some surprising cir- President —not appointing DUBINA, Judge, dissenting, Circuit to assume some sort cumstance —but BIRCH, Circuit TJOFLAT blind, mindless, knee-jerk based response Judges, join: judge’s appointer does politics majority’s disposition of agree I with the injustice. grave rule of law a us and the abstention, judicata, res col- just wrong. the issues importantly More it is government, branches of our high degree.” Id. at 585. 10. The three clearly present in a Executive, convinced, and the Judicial Legislative, the Su- I and surmise am concluded, Branch”), ("The preme that such a situa- often been com- Court has Third early tion confronts us now. American three- pared familiar legged stool. 35(a)(2). Fed.R.App.P. 7. thought corollary was ex- 11. The Cir. R. 22-3. 8. 11th Florida, pressed by the elder statesman Pepper: has Congressman "One Claude opinions available to of our 9. All democracy.” wrong Cong. right to be public at www.call. on the Internet 27,May Rec. uscourts.gov upon publication. 1194 join injury, I I turn first to a discussion of mootness. also arable estoppel, and

lateral case, in dissenting opinions in manual recounts fully the selective and concur Birch, and consti- Judges Tjoflat, Carnes. and how those recounts violated the filed similarly of the re- situated vot- disposition rights I from the tutional dissent majority’s in receive the benefit of discussed ers who did not maining issues disagree I with Specifically, them. opinion. the prelimi- cannot convert notion that we course, every dispute election Of reach the merits of injunction and nary justifies implicates the Constitution and Thornburgh v. American this case. See intervention, “[general federal court Gynecologists, & College Obstetricians them ly, federal courts do not involve 2169, 747, 90 L.Ed.2d 106 S.Ct. 476 U.S. ‘garden variety’ in election dis selves (1986). 779 Alabama, 574, v. 43 F.3d 580 putes.” Roe case, legal the merits of this As to Cir.1995) (Roe I) (11th (quoting Curry v. forth in the cases of Moore principles set (11th Baker, 1302, 802 F.2d 1315 Cir. Ogilvie, U.S. 1986)). gar than a But this case is more Alabama, (1969), and Roe v. L.Ed.2d variety dispute. election It concerns den (11th Cir.1995), govern. Based F.3d 674 validity more than the of individual ballots principles, I would reverse the on these or the administrative details of an election. in of the district court this case.

judgment part This case involves of a state’s election permits in designed way law or even CARNES, in Judge, dissenting, Circuit encourages infringement of the federal DUBINA, TJOFLAT, BIRCH and rights large category constitutional of a Judges, join: Circuit voters, a claim that the was actu law I that the lawsuits agree with Court ally applied way in a that violated those in this in Touchston v. McDer case and rights. authority courts have Federal mott, 234 F.3d are not barred duty to address and decide such the doc ‍​​​​​​‌​​​‌‌​‌‌‌‌‌‌​​​‌‌‌​‌‌​‌​​​​‌​‌​​​‌‌‌​​‌​‌‍ Rooker-Feldman doctrine Supreme claims. That is what the Court judicata, estoppel, trines of res collateral Ogilvie, did Moore 394 U.S. mootness, no and that there is basis for (1969) (striking 23 L.Ed.2d S.Ct. disagree, I howev this Court abstain.1 part down as unconstitutional of Illinois’ er, irrepa with the Court’s conclusion that electors). selecting method for Presidential injury rаble has not been shown in these That what we did Roe cases. See My with that disagreement two cases. I, (affirming prelimi Roe 43 F.3d at 580 my belief that the conclusion stems from nary injunction against counting votes that selective recounts some of the trial state court had ordered to be count punch card counties use (11th ed); Alabama, Roe v. 52 F.3d 300 system voting equal protec violate the Cir.1995) (Roe II) (same); Roe v. Ala rights punch tion the voters the other (11th (Roe bama, Cir.1995) 68 F.3d system card harm from that counties. The (same III) injunction). as permanent long violation exists and will so continue That is what we should do in this case. the results of of those selective manual replete recounts included Florida’s certified The record in this case is not detail, election results. Because the existence with factual but there are sufficient undisputed nature of the constitutional violation is facts to establish a constitu- inextricably question irrep- upon linked tional violation based the selective jointly opin- reasoning I address the two cases in this reference of the district ion, appropriate which is in view of the simi- opinion Siegel. court’s issues, larity overlap parties, substantial duplication, adopt In order to avoid I will argu- cross reference in the and oral briefs my dissenting opinion other, in Touchston what I ment in each case to the and the dis- incorporation by trict court in Touchston's have said here.

H95 bility on the on depends undertaken in of success merits that were manual recounts likely developed card counties and facts that are to be at only punch a few 8, discriminatory treatment or resulting trial.” Id. at 757 & n. 106 S.Ct. at 2177 similarly of situated weighting of the votes that & n. 8. The facts are established or I as present purposes, accept For voters.2 in these two undisputed cases entitle the fact in the everything represented fact to relief for I ex- plaintiffs reasons will Party, by filed the Democratic affidavits plain, disputed undeveloped and thus all party requested the se which is the controlling facts are of “no relevance.”3 in manual recounts at issue this lective manner, in Proceeding the Florida case, on the party the chief interest Party’s position plus Democratic factual side, only them and will add to defendants’ undisputed Twenty- facts are these. party disputes. facts which neither those four of Florida’s 67 counties use a vote appro in that manner makes it Proceeding system preference which the voter’s and whether priate to decide the merits stylus through expressed punching granted relief should be permanent passed through card that is later a tabulat- appeals pre from the denials of these two Siegel, machine. Aff. of F. ing See William Thornburgh v. liminary injunctions. See Galvin, Florida Appendix Brief of Dem- Gynecolo Am. Coll. Obstetricians & 10; Party (“Fla.Dem.App.”) ocratic at tab 755-57, 106 S.Ct. gists, U.S. A.4 There are different models of Chart (1986), overruled on 90 L.Ed.2d 779 machines, tabulating all punch card but Planned Parenthood v. grounds, unrelated by directing light punch work at the them 833, 112 Casey, 505 U.S. S.Ct. being through card fed the machine and (1992). Thornburgh de L.Ed.2d 674 reading the beam that results from the appeals that a court of cision establishes through the that has light passing hole final a case an may decide the merits of the voter. punched been the card pre of a appeal grant from the denial Galvin, Aff. of F. Fla. Siegel, See William injunction if liminary “the facts are estab punched If relevance,” Dem.App. at tab 10. the hole controlling lished or of no chad, any there in the card is not clear of situation “when there is no it is not a likelihood, law, possibility, perhaps is a disagreement proba- as to the but preliminary injunction, complain of a it does not plaintiffs 2. The also about the man- denial place county, merely that took in one In- ual recount Volusia, review stead, for an abuse discretion. optical which uses the scan or mark- scope plenary. See its of review However, voting. system (“The the evi- sense Thornburgh, at abundantly dence makes it clear that Volusia customary to a District discretion accorded problems County plagued with a host of was preliminary injunction ruling Court’s vote, tabulating including outright its yields plenary scope review as to the to our equipment There is no and software failures. law.”). applicable recount conducted evidence that any County reason in Volusia was done for the affidavits submitted to the dis- 4.One except to correct those failures ensure Party by the Florida Democratic trict court they reported did not taint the results. punch counties use card states that 26 Florida any in the record that Nor is there evidence voting systems. Siegel, Aff. of Jon M. See optical system scan other had Ausman, Appendix to Brief of Florida Demo- problems from similar but for suffered According Party to the affi- cratic davit, at tab 13. ordered. The which no manual recount was was obtained from the that information involving County is materi- Volusia situation Secretary Web Site. Id. We of State’s involving punch ally from that different now, however, on official records know based Broward, system Palm card counties State, Secretary provided Beach, Accordingly, I will and Miami-Dade. voting punch use card 24 Florida counties County any further in this not discuss Volusia Although difference systems. Chart A. opinion. legal is- to resolution of the is not máterial number, sues, which is the correct appeals I will use decides the final 3. When a court of legal appeal from the merits of a case on an (sic) cap votes fail chine tabulation of will not count tabulating machine of vot by large cast a number ture votes vote. Id. ers, the number of votes particularly when system card punch failure of The in million six cast is substantial —almost problem votes is a of the intended count all election. of Florida’s Presidential the case See, e.g., voting system. in that inherent votes, without tabulation of these Machine Sancho, Fla. Dem. Aff. of Ion V. Siegel, counting votes process for some additional 9; Aff. of F. Siegel, William at tab App. tabulate, results machines fail to that the 10; Galvin, Siegel, Dem.App. Fla. at tab vot in of countless the disenfranchisement Mercuri, Dem.App. Fla. T. Aff. of Rebecca Petitioners/Appel Brief of ers.” Answer problem that It is a serious at tab 16. Gore, Florida Democratic lants A1 Jr. and significant in number of intended results County Party Palm Beach Canvass at counted; and those intend- being not votes (filed Harris, in ing Bd. v. So.2d unless uncounted ed votes will remain 19, 2000); Nov. Supreme the Fla. Court involving manual visual there is a recount (“Underlying the addition see also id. at by human punch cards inspection of a manual recount is an provision of a Siegel, Aff. of Jackie Winches- beings. See process is more understanding that 8; Aff. ter, Dem.App. Siegel, at tab Fla. less.”) counts, machine not accurate than Sancho, 9; tab Dem.App. Fla. Ion V. (“[M]any in at 16 (emphasis original); id. Galvin, Aff. of F. Fla. Dem. Siegel, William that machine counts of studies indicate Ausman, 10; Siegel, Aff. of App. at tab Jon significant in produce card ballots punch 13; Aff. Siegel, at tab Dem.App. Fla. accuracies.”). Mercuri, at tab DemApp. T. Fla. Rebecca hu- plaintiffs question whether 16. While Party In the briefs the Democratic filed accurately ascertain the beings man can cases, it has told in our court these two punch by inspecting a voter intent of us that: indented, swinging, pregnant, with an card voting system used optical The scanner chad, fully removed or otherwise goоd by provides Florida counties most theory selected manual recounts results, percent- “non-vote” including a is that it can be undertaken this case (where Presidency one would age for done, and that as a result intended votes low) very “non-votes” to be expect disre- would otherwise have been which by only voting, 0.40%. Punch card con- in a manu- garded can and will be counted trast, in the three which is effect al recount. that have undertaken larger counties Indeed, unwavering refrain of the ... recounts considerable Party underlying Florida Democratic its reliable, yielding improba- much less punch requests for manual recounts percentage for the Presi- ble “non-vote” counties, throughout all of the card dency over 3%. litigation related to this state and federal case, systems Intervenor/Appellee Brief of Florida Dem punch has been that card 23-24, invariably Party at Touchston v. necessarily and undercount ocratic (11th McDermott, Cir.2000); recaptured and 234 F.3d 1161 votes which can (“Punch card ballots justi- In see also id. at 10 considered manual recounts. consistently greater level of fying generate for manual recounts request its counties, approximately 3.2%—due to Party the 3 told the Florida undervotes — still-appended imperfect perforations court Supreme Court a related state chads.”).5 that, “It well that ma- case established Ausman, Siegel Siegel, figures quoted case. See Aff. of Jon 5. The I have the Florida affidavit, Dem.App. at tab 13. Party's were drawn Fla. Democratic brief 12, 2000, Ausman, Mr. Aus- Party is dated November from the affidavit of Jon which upon figures are based Party man states that those filed in the district court H97 (“Each Party told the Democratic United standards employed essentially the Palm Supreme [in States Court same Beach and County Broward high percentage was, thus, “Because of the of manual thing: im- recounts] vast by punch voting created card provement undervotes over the outright disenfran- systems, majority of counties in the vast chisement that results from machine un- Re- Florida do not use them.” Brief of dercounts caused hanging dimpled chads.”). Gore, Jr., A1 spondents Demo- n.2, Party at 4 cratic Bush v. Palm Beach If Party’s the Florida theory Democratic (filed Bd., Canvassing County No. 00-836 valid, is not then the manual recounts it Supreme

in the United Court Nov. States requested any change and in votes result- 2000). 28, ing from those manual recounts would case, Summarizing theory its of the amount to stuffing the ballot boxes in the Party Democratic has said: “the illegal evidence selected counties or with non-exis- suggests votes, in this case that some Florida tent counting bogus and those votes potentially voters could be disenfranchised would be unconstitutional for that reason. Carr, 186, systems 208, because the automated utilized Baker v. 369 U.S. 82 (1962) 691, 705, some Florida counties caused thousands of 7 (recog- S.Ct. L.Ed.2d 663 go only nizing votes to uncounted. The means that the right infringed by to vote is whereby box); those uncounted votes can be ex- tally by stuffing false or the ballot I, But, amined is to discern the intent Florida’s Roe 43 F.3d at 581. as I have (sic) through voters is a manual recount explained, Party the Democratic insists auditing process.” Response actually of Interve- that a manual recount results in nor/Appellee Party the Florida Democratic the counting of intended votes that would machine, In Opposition Appellants’ Emergency put not be detected and it has Injunction Pending Appeal Motion for support- record numerous affidavits Touchston, (filed No. ing 00-15985 the 11th that view. The Supreme Florida 2000). any punch Cir. Nov. card theory Court seems to have embraced the county un- where recounts are not well interpreting as “error the vote dertaken, 102.166(5) Party says, “outright disen- tabulation” in Fla. Stat. franchisement” id. a discrepancy occurs. See at 40 include a machine between complete figures best data he could obtain at that time. those counties. The for all counties, The data was of Florida's optical 41 marksense or scan punch opti- counties—11 card counties and 7 appendix are contained in Chart F in the (or marksense) para- cal scan counties. Id. at opinion, this a show combined no vote 1.43% graphs 6-7. (The punch rate in those counties. number of complete figures We now have from all 67 optical card counties added to the number of counties, Secretary Florida because the of equals scan counties 65 instead because part keeps State of her duties as official elec county system one uses lever machine reports required by tion that counties are law voting paper and another uses ballots counted Supreme to submit to her. The Florida Court hand.). judicial takes notice of the of records contents complete figures The show us that the true State, kept by Secretary State ex rel. see difference between the no vote rates of the (Fla. Glynn McNayr, 133 So.2d punch optical card and scan counties is we, 1961), may generally and so see Fed. 1.43%, 2.49%, or 3.92% minus 201; Dade, R.Evid. Cash Inn Inc. v. cf. incomplete figures difference that Ausman’s

Metropolitan County, Dade 938 F.2d .40%, (3.2% 2.8%). show minus The com- (11th Cir.1991) (minutes of a figures plete significant still show a difference ("A meeting) commission district court optical punch between scan card counties judicial public take notice of records within whole, complete fig- considered as a but the relating particular its files to the it case before optical ures also show that in the scan coun- cases.”). or other related .40%, ties the no vote rate is not which the figures complete punch The for all card counties, Party’s tells us "is to Democratic brief which are contained in Chart C in 1.43%, expected,” appendix opinion, but instead is or three to this show a com- Party’s "expected” bined "non-vote” or "no vote” rate in times rate. 3.92% complet- have been manual recounts in a manual recount sample count counties, Beach Broward and Palm Palm ed in generally county. See card punch votes from Harris, resulting additional Canvassing Bd. County

Beach added to the County have been (Fla.2000), vacat Broward 1220, 1228-30 772 So.2d all of part totals. Whether statewide County Canvass ed, Beach v. Palm Bush by the brought about man- 471, - U.S. -, corrections Bd., ing - and Miami- curiam). in Palm Beach (2000) Be ual recounts (per L.Ed.2d the state- added to will be so, Counties and Dade court did high state cause the ongoing other a result of totals as wide necessary premise theory because to be remains seen. in state court litigation Party request recounts the manual events, I will assume fluidity of counties, accept I Given in the selected ed that the opinion remainder for the proposition purposes present fact for from all 3 results recount ballots manual punch card that manual recounts be added counties will being counted selected votes intended will result However, irrespective totals. if the statewide would not been that otherwise litigation in- state is decided the machine tabu what with stopped had process and Miami-Dade Palm Beach volving lation. Counties, remains the same my conclusion conduct- had been recounting If manual of degree selec- any difference because card using punch in all the counties ed two, one, three counties or tivity between were all voters who system so that voting and the remain- manually recounted being votes dis- having their intended at risk card counties not punch the 24 der of generally protected regarded were under is immaterial recounted being process, corrective by the same extent The principles. applicable constitutional no federal constitutional there would be one, two, or three man- between difference (as I will violation, if assume at we least may being conducted affect ual recounts the stan- analysis) that purposes of this for election, the Constitu- of the but the result accu- in the recount were applied dards equal pro- of voters’ violations tion forbids consistent, enough satisfy rate, and fair those violations rights even when tection did not But manual recounts process. due change the election. do not outcome punch counties. in all of the card occur at 812. See infra Instead, the Florida by long a shot. Not reason and, voters who for did in con- whatever Party requested Democratic dislodging the chad next using ad- succeed junction state officials with had their votes their choice for President by state processes sanctioned ministrative County and even- re- in Broward law, counted brought a selective manual about in the 2 counted in- have their votes Party tually process count. The counties, but the voters selected ensures other machine errors and sists corrects counties who ascertained, punch 21 card all of the other that the will of voters stylus on the pressure the same applied defective by are not disenfranchised voters effect, or brought the same lack only about requested in 3 technology, was effect, the chad connected from the of intended that suffer Florida’s counties Broward, did not their choice President with malady, being the 3 punch card Beach, their votes counted. Under Flor- No re- and Miami-Dade. Palm Party’s theory punch ida Democratic requested was or undertaken count similarly undercounting, card thousands counties: remaining punch 21 Florida card Gilchrist, intended to Duval, citizens who Collier, Desoto, Dixie, situated President were thwarted their Glades, Hardee, Hillsborough, vote for Highlands, perhaps Jefferson, Lee, Madison, technology, River, by efforts defective Indian Pasco, Pinellas, personal a careless- Nassau, Osceola, with bit of Marion, combined intended ness, and whether their votes Sarasota, Sumter, and Wakulla.

H99 solely made to depend they count has been more than counted more— others — county they in which If and the upon the live. difference was based upon the (or they County maybe live in in counties in Broward which the voter Id. lived. at Counties, too), 370-72, Palm Beach or Miami-Dade 83 S.Ct. 803-04. The Court count; their if live in they votes but of held that the Constitution prohibits such counties, they selectivity. 380-82, other card punch do not. Id. at 83 S.Ct. at 808- The one and difference is in which of 09. punch they card live. counties Another variation on selective weighting of franchise right

“A citizen’s to a vote free arbi residence was presented trary impairment by Ogil state action to the Court in Moore has been vie, judicially recognized right as a U.S. 89 S.Ct. secured 23 L.Ed.2d (1969). Constitution, That when such case involved an impairment Illinois required resulted law that tally, seeking from dilution from a false candidate place by a to count on the statewide arbitrarily present refusal votes from ballot to precincts, nominating petition aby stuffing containing signa selected 25,000 Carr, box.” Baker tures of at least ballot 369 U.S. voters. That basic (1962) 691, 705, requirement 7 L.Ed.2d 663 was not a constitutional prob (internal omitted); lem, proviso but a required citations also Reyn accord Sims, 533, 555, nominating petition signa olds v. to include the U.S. S.Ct. (1964) (“And 1362, 1378, tures of 200 or 12 L.Ed.2d more voters from each of at least 50 right suffrage problem. can be denied counties was a Id. at 815, 89 at 1494. weight adopted debasement or dilution of the of a S.Ct. Illinois just proviso in to effectively citizen’s vote as as order ensure that candi whol ly got date who on its prohibiting the free exercise of the fran statewide ballot had at chise.”) (footnote omitted). least minimal support, state-wide because elected official on rep “[a]n the state level For at a quarter century, least of a it people state,” resents all the has been established that “[diluting the representatives should be “[s]uch aware of weight place of votes because of of resi- and concerned with the problems of the impairs dence rights basic constitutional just whole portions state and not certain the just under Fourteenth Amendment as Shapiro, thereof.” Moore v. 293 F.Supp. much as invidious discriminations based (N.D.Ill.1968) 411, court), 414 (three-judge race, upon factors such as or economic Ogilvie, rev’d sub nom. Moore v. 394 U.S. 566, Reynolds, status.” at U.S. (1969). 814, 1493, 89 S.Ct. 23 L.Ed.2d 1 (internal omitted). S.Ct. at 1384 citations geographic-spread proviso The in Illinois’ As the in Supreme explained Reyn- Court nominating petition requirement was un olds, “Overweighting and overvaluation of questionably expression “an of rational living the votes of those here has the cer- policy,” state Moore v. Shapiro, 293 tain effect of dilution and undervaluation of 414, F.Supp. at that did not it but save 563, living the votes of those at there.” Id. being from struck down. prohib- 84 S.Ct. at 1382. The Constitution problem The with proviso, the Illinois its states from weighting differently votes Moore, Supreme explained the Court in place based on the voters’ of residence. against was that it discriminated Supreme voters prohibi- Court enforced this in Sanders, residing populous the more counties of Gray 368, tion in 372 U.S. residing the of 801, (1963), state favor those the S.Ct. L.Ed.2d 821 when it populous less counties. The constitutional system struck down the unit the math went like this: Georgia Party pri- Democratic used its mary complicated elections. Under Under this Illinois law the electorate in vote, system every got citizen one but in 49 of the counties which contain 93.4% of analysis the final registered may some votes mattered not form a voters ‘sophisticated forbids Constitution place its candi- party political new of discrimi- 25,000 modes simpleminded of the as well Yet the ballot. dates on omitted). (citation nation.’”) Because voters registered 6.6% remaining right to vote the 53 re- of the among importance the central distributed properly democracy, party representative form new system in our maining counties It, right office.... of the infringement “any alleged candidates to elect to carefully to which and me- therefore, equality lacks to vote must be citizens 562, rights scrutinized,” is entitled S.Ct. political id. ticulously at the exercise duty Fourteenth Amendment. of the courts.6 that is the under the at Although 1496. at 89 S.Ct. Id. at so- course, dealing with many cases Of franchise accom of the weighting selective right debasements phisticated in Moore involved proviso plished overtones, no and that is political vote have direct, and less sophisticated more was Supreme than usual. The true less here obvious, than laws less a result and as Reynolds with was presented Court Sims, it still Reynolds v. struck down stay its hand ought it argument charges against the muster “pass failed to in- thickets political of the keep out abridgement of the of discrimination suggestion To that volved in that case. Moore, at 394 U.S. right to vote.” this: answer is responded: “Our the Court at S.Ct. rights constitutionally protected denial of human mind fertility Given oath and our judicial protection; demands objectives, political de- upon focused when Id. at no less of us.” require our office can franchise nial or debasement good That is a at 1384. But what- ways. myriad accomplished answer. count, used to or means the method ever of these principles apply In order to differently votes value some weigh, or cases before facts of the decisions others, or indi- sophisticated however us, examination of I turn to a closer now up device, the Constitution rect the in which a of the 3 counties the selection Reynolds, 377 U.S. the task. See Acting (“One requested.7 manual recount was be ever aware 1382 must 84 S.Ct. at rights equal protection argues a violation Attorney 6. The General of purpose if there is a rational the voter even judging manual re- in the selective us that discrimination, was in Moore Equal for as there under the the in this case counts issue at apply Ogilvie. v. not strict ought we Clause Protection instead, but, apply a scrutiny standard, lesser should par- by the discussion 7. There been some has Takushi, he cites Burdick and that partial recounts ties about or manual full 119 L.Ed.2d 245 U.S. (Gadsden at and in least were undertaken Krivanek, (1992), 973 F.2d 1539 Fulani and (Polk) Seminole) possibly 3 counties that and (11th Cir.1992), proposition. See for that voting sys- optical scan or use the marksense Attorney Supplemental Appellee Gen- Brief agree manual parties those tem. The that 4-7, Siegel, 00-15981 at No. eral of Florida by any requested candidate recounts were not 28, 2000). (filed Howev- in the 11th Cir. Nov. political party, were instead initiated or but citations, er, argument, and those miss the his during period canvassing the boards local point. and Fulani ballot-access Burdick automatic recount for the machine statewide cases, involving different treatment cases not pursuant law. The cir- to Florida undertaken Reynolds, weight given In to votes cast. or any relating and to those recounts cumstances treatment of votes which did involve different may are un- problem have led to them cast, Supreme proper Court that the said large part neither of these in because known scrutiny. and was careful meticulous standard counterclaim contains a claim or two cases 561-62, at U.S. S.Ct. recounts, canvass- concerning those actually less one of question The parties ing not to either involved are boards straightforward degree scrutiny than it is a lawsuit. inquiry whether the votes of otherwise into analysis my do not being Those affect treated recounts similarly situated voters are or they scan coun- they optical occurred in differently because weighted of where because ties, occurs, request of a conducted at the were then there is live in state. If 102.166(4), to Fla. Stat. pursuant problem in punch inherent card Party requests Democratic filed written technology. reason, For that the existence Broward, for recounts Palm punch of a voting system card cannot be a Beach, Counties, and Miami-Dade and no differentiating basis for the 3 counties that punch Siegel, other card counties. Fla. were selected from that were not. Dem.App. at tabs 3 & 5. There were two And, course, the fact that the statewide grounds common stated each of those 3 totals the race for President were ex- requests. ground written in all given One tremely fact, close was a common requests punch system was that the card therefore grounds could have served as for with its chads created a risk that intended a recount in any of the other 21 punch (“undervotes”) votes had not been counted card counties. There is nothing undervotes, actually or did result Party gave reasons that the for requesting problem requests said could be cor- a manual recount the 3 selected counties rected a manual recount with its at- explains, justifies, let alone the dis- tendant inspeсtion visual of the cards. crimination in favor of punch those 3 card ground requests The other stated in all 3 counties against the other 21. was that the election results in Florida give Party order to the benefit of the showed that the race for President was doubt and to consider all possibilities, I very grounds close. No other given were will now look elsewhere explanation. for an in the manual requests.8 recount See id. A-F, Charts which are ap- attached as problem The with tabulating machine pendices opinion, to this population contain punch card ballots is common to counties demographic data, and other punch system. use the card well as Party Democratic has never relevant vote data on a county-by-county contended to contrary, but instead has insisted that represents basis.9 That vote data things candidate, political party purpose punch of manual recount in a card problems, been undertaken as a result of local is to find intended votes that the tabu- County, lating as was the case with Volusia pick up machine did not because optical system. also supra uses the scan sufficiently punched Any chad was not out. event, n. 2. In even if tabulating there were uncon- ballot in picked which the machine selectivity up stitutional in the choice of those 3 two votes cast the same office would be counties, optical scan cleanly that would not lessen punched one in which the voter had chads, Equal the violation of the Protection Clause out not one but two or the machine that occurred when the Florida Democratic would not have read it as two votes. Instead Party punch helping selected 3 of the 24 problem, card counties cure "overvote” for manual recounts. searching manual recount for additional votes dimpled, pregnant, swinging in the form of exception 8. There one is to that statement. picked up by tabulating chads not the ma- request The for a manual recount in Palm only aggravate could problem. chine the County ground. Beach contained another It precisely That is the concern that the Horo- request was stated in the Palm Beach recount inlerveno'rs, group witz of Palm Beach vot- particular configuration the that of the ballot supported Party’s ers who the Democratic (the county "butterfly in that lot”) so-called bal- election, expressed nominee in the in the dis- voters, pro- had confused Palm Beach’s Trans, Hearing Siegel, trict court. See át 108. ducing two bad results: a substantial number allegedly As to the Palm Beach voters who disregarded of votes were because more than inadvertently wrong voted for the candidate punched presidential one choice was in the confused, they inspec- because were visual race; inadvertently and some voters have punch showing tion of a card ballot a hole voted for someone other than their true enough tabulating clear for the machine Siegel, Dem.App. choice. See Fla. at tab 1. picked up it could not reveal whether at problem explain justify why That cannot punched person the time the hole was the Party punch the Democratic selected the 3 doing punching thought the it would count as First, card counties that it did. neither Bro- a vote for candidate. another ward or Miami-Dade Counties used a butter- ballot, fly and judicial there was no voter confusion 9. We can take that vote notice of data, reported request for manual recounts which is from the records the Florida Second, Secretaiy keeps required filed in either of those counties. the of State as law the other in relation to guish them after on November they stood as the most 3 are card counties: those required punch recount machine the automatic punch- 102.141(4) all the vote-rich of had been and populous Stat. under Fla. counties, of them the data in each vote and the relevant card is That conducted. substantially reflects it the received Party’s because nominee purposes, our for opponent. principal Democratic the Florida than his time more as of the votes facts requests in manual recount filed its Party that, see the only but we also Not Miami-Dade, Palm Beach Broward, conspic- B another in Chart data contained 9, 2000. on November Counties the The 3 counties fact. uous 3 counties se- that the A shows re- Party Chart selected for Democratic man- Party for a Democratic by the lected counties 4 punch-card of the counts are 3 1) these characteristics: recount share ual highest percent- the its nominee gave counties in populous most are the 3 they oppos- among the two cast age of the vote 2) Florida; the they are the State per- Those candidates. ing Presidential nominee, Party’s the in which counties follows: Broward as centages Gore, larg- the A1 received Vice-President (63.81%); and Mia- (68.55%); Beach Palm 3) votes; in each of number est (53.18%). punch No card other mi-Dade more substantially votes received them he greater Party’s gave the nominee Bush. Governor opponent, than his Broward vote than of its percentage manual re- underlying Counties, only punch the one theory Palm Beach has already explained, count, Party’s I have the nominee county gave card system card punch the always than been that vote Miami- of its greater percentage inevitably results necessarily and voting exception lone is That County did. Dade being picked up not votes intended County some populated Jefferson sparsely The Florida machine. tabulating by the Party’s nomi- which, favoring the although suggested Party has Democratic never vote, a total of its cast nee with 55.10% for manual of counties its selection 5,519 the nominees both votes for any county-by- upon based recounts was example, to (compared, for major parties way in either county variation 618,335 them Miami- votes cast for operates or in its rate system punch card votes Because few were County). so Dade Instead, posi- accuracy. consistent county of- County, that cast Jefferson sup- Party, generally which is tion enough finding prospect fered little it affidavits submitted ported a difference. votes to make uncounted court, punch every time district County effect, were of Jefferson voters there be intended system used will card in view the to matter too few number by the tabulat- counted that are not votes change Party’s objective, was at 1195-97. Giv- supra ing machine. reported to that had been election result that the manual justification en the stated date. Broward, necessary in Mia- recounts were finding theory of the Given the recount— mi-Dade, Counties be- and Palm Beach counted intended votes were punch used card those cause counties most relevant system punch card —the focus is system, the relevant more percentage of the of all would be data from all of voting data population and but not counted. that intended votes were Chart B card counties. punch Florida’s that, did the but neither do not have We course, because the that data. Of shows it Party when selected Florida Democratic of all are a subset punch card counties in to re- counties which punсh card the counties, the characteristics of Florida’s 67 “no the vote” We do have quest recounts. by 3 counties chosen distinguish that data, the difference between shows distin- also Party on a statewide basis supra n. 5. pursuant her official duties. number of voters who including elderly minorities, the total cast have punch total with any voting ballot and the votes cast card captured should be words, candidate. In other to some in Presidential extent the no vote data con- seen, no vote tained in But data shows number Chart C. as we have Party’s in no selection of the ballots which vote for President was 3 counties can- justified not be on the basis of tabulating counted either because the ma- that data. up did pick punch chine from the card Moreover, D, Chart which ranks the President, any vote for or because it punch card by counties percentage pop- picked up two or more votes for President ulation age over the shows 7 of that on card in resulting the same no vote for those counties that were not selected for being President counted. greater percent- recounts have a age population their in age catego- that punch Chart C ranks the card counties ry does; than Palm County Beach 11 not by percentage of no in votes the Presiden- selected for manual great- recounts have a Beach, Miami-Dade, tial race. If Palm er in percentage age category than and Broward Counties had been selected does; County Broward and 13 of them for manual recounts problems because of a greater percentage that age cate- resulting in no vote for being President gory than Miami-Dade County does. The machines, picked up tabulating Party’s Democratic selection of those 3 highest counties would have the no punch card counties for manual recounts vote They rates. do not. C Chart shows could not have upon been based per- punch that there are 7 card counties with a centage elderly county’s each popula- higher percentage of no votes Presi- tion. dential race Palm County, yet than Beach none of them was selected for manual re- As for having prob- “minorities” more counts. chart also shows that 10 punch with voting, lems card it is unclear punch higher percent- card counties have a exactly what the Florida Democratic Par- age County, of no votes than Miami-Dade ty’s affiant meant “minorities.” Chart but none of them was selected for a manu- E that if shows he meant to include both al County, recount. And as for Broward Hispanics blacks and grouping, punch there were 17 card counties with a County’s Miami-Dade population does higher no vote rate that were not higher percentage selected have a of minorities fact, for manual recounts. Broward is than other punch county. card But tied for the fourth smallest percentage of the chart also punch shows card no votes for among President all of counties that were not selected for manual counties, punch yet card the Florida Dem- recounts higher have a of mi- percentage ocratic Party still selected it for a manual norities in their populations than Broward recount. County, which was selected. itAnd shows punch that 8 card counties that were not many One affidavits the Florida higher selected for manual recounts have a Party Democratic submitted in the district percentage of popula- minorities their citizens, court groups stated “two County tion than Palm Beach which was elderly minorities, prone are more also selected. problems to have system than the So, rest of population.” Siegel, Aff. of Ion the facts we have about the Florida Sancho, Dem.App. V. Fla. Party’s tab 9. Per- Democratic selection of the coun- haps that opinion upon derogatory rests ties which a manual recount would be stereotypes that federal courts should not undertaken order to that voters ensure however, countenance. Even assuming, systemic were not disenfranchised there is some factual problems punch basis for that with technology card carelessness, opinion and that we should consider the are these. The selection possibility, problems any group, the that upon punch was not based the rate of card the ‍​​​​​​‌​​​‌‌​‌‌‌‌‌‌​​​‌‌‌​‌‌​‌​​​​‌​‌​​​‌‌‌​​‌​‌‍came to when it mattered few to have itwas based rate —nor vote no error —the of the results changing the Party’s goal citi- of senior percentage the relative

upon statewide election. county’s popula- in each zens or minorities characteristic Instead, defining the tion. factor at another have been There chosen to counties card punch of the 3 Party’s Democratic in Florida work the they is that recount manual a undertake counties most populous of the 3 selection in the counties populous are the 3 most a manual request in ones which as the Party’s Presi- state, gave the all of which if not re- encourages, law State recount. higher percentage a dential nominee to favor recount choices manual quires, opponent. vote than his totals over greater vote counties with the vote totals. Under lesser those with surprising. course, of this is none Of at least 3 statute, sample a recount once to act in their parties expect political We in cast of the votes percent precincts and interest, the 3 most political own best conducted, county the county has been its for voted counties had populous manually recount all can canvassing board Democratic the Florida presented nominee recount only manual “[i]f the ballots turning for prospects its best Party with vote an error [sample] not have indicates around. It would the election the outcome could affect which its nom- tabulation electing Party’s goal served the 102.166(5). § Fla. Stat. of the election.” sought the for it to have for President inee course, of votes larger the number in those Of votes unsuccessful intended but likelihood that greater the county in a for the oth- counties that went punch card county in that recount complete a manual nominee, George W. party’s Governor er election, under affect the alone will punch Bush. The voters 102.166(5) meas- to be the appears Bush. See favored Governor card counties man- undertaking complete a Hillsborough uring rod for Examples include B. Chart of votes Because the number (51.6% 350,317 ual recount. of its County Bush/Gore county’s Bush) in relation to County obviously varies and Collier votes went for likelihood greater there is a (66.89% population, 90,351 votes went of its Bush/Gore recount a more complete manual Bush). every that a Making Id. sure for the election county change will populous in those 17 counted intended vote was of a different Gore, possibility result. over over Since favored Bush counties that prerequi- appears result statewide punch the total number two-thirds of in a complete recount site for a manual counties, way was not the card and, encourages the statute county, candi- Party get its Florida Democratic re- pre-manual some cases—where date elected. larg- in votes count statewide difference for the it Nor have been efficient would picked up than the votes that could be er Party expend its Florida Democratic populat- in a less by a full manual recount coun- vote-poor manual efforts recount discrimination county may require ed — Jefferson, did ex- whose voters ties like counties. against less-populous preference for the press pronounced After present case. Loyal Democrats Consider Party’s nominee. recount mandated be, statewide machine of Jeffer- though they may citizens law, be- the statewide difference from the misfortune County suffered son was candidates Presidential population whose was tween two living in for the would be far easier votes. It it cast for the the total so small that votes Party to show Florida Democratic for President principal candidates two by a could be erased margin only cast Palm were 1.31% those Miami-Dade heavily populated those cast in recount County, only .98% Beach 618,- reported a total of County, had of those County, and .89% Broward candidates, than it the two That too 335 votes for County. cast in Miami-Dade

1205 Party would for the to show be the same When a political party uses state ma- thing sparsely populated in Jefferson chinery and prerogatives exercises it is County, 5,519 only where votes were cast given under state law to influence the fact, for two candidates. depending counting or votes, alter the effect of it is a upon margin victory, initial it could subject state actor to the same constitu- impossible get well be to a complete manu- tional protect constraints that citizens al in many punch recount of the card coun- from the state and its officials. Terry See ties, regardless of which candidate the vot- Adams, 461, 481, 345 U.S. county ers in that favored.10 (1953) (white 97 L.Ed. 1152 primary It be that the Florida may Democratic case) (“[A]ny part machinery of the for Party would have punch chosen the 3 card choosing subject officials becomes counties it did even without require- restraints.”) (citations Constitution’s 102.166(5) § ment in Fla. Stat. that omitted). quotations The manual recount sample recount conducted in county each provision contained in Fla. Stat. show that the outcome of the election could 102.166(4), § and the selectivity it encour- changed by be continuing the in recount ages permits political parties to exercise county. credit, Somewhat to its in bringing recounts, about is an integral (at Party has never denied least not in part of process Florida, the election in during litigation federal court of these two we have days, seen in recent and the Su- cases) it chose for manual recounts preme Court has held that proce- “[a]ll did, others, the 3 that it counties and not dures used a State as an integral part i.e., because populous, those counties are process election pass must muster rich, vote and their voters had expressed a against charges of discrimination or of preference for its Presidential nominee. abridgement the right to vote.” Moore alone, In our Party Court filed over Ogilvie, 814, 818, 394 U.S. 89 pages S.Ct. briefs and used more than 40 1495-96, (1969). argument minutes of oral time L.Ed.2d explain position. its Never in once its briefs or in The Florida manual recount statute arguments its oral Party did the suggest gives government officials some discretion that its of the punch selection card coun- recount, over whether conduct a manual ties out of 24 for a manual recount was 102.166(4)(c)(“The see Fla. Stat. county anything based on other than partisan self- canvassing board authorize a manual interest. That the Party pre- Democratic recount”), government officials in- dictably acted its own best interests timately in the actual recount pro- involved using the state law recount machinery to cedure itself. Those two facts reinforce ensure that intended votes would the conclusion Florida Democratic disregarded otherwise be would Party’s the counties in which favoring counted counties selection its candidate does manual inquiry. not end the recounts could occur is There is the state action matter of the subject Constitution. scrutiny. constitutional 10. gains discrimination that results mak- would result net for Bush of 25 to ing dependent upon a manual recount wheth- 100 votes in of those each 17 counties for a er the recount difference in the could gain combined total net of 900 votes for Bush. change the statewide result can be illus- also 102.166(5) written, As Fla. Stat. § ap- it fairly simple hypothetical. Sup- trated pears complete manual recounts could pose statewide difference was Bush over counties, less-populated not occur in those votes, sample Gore and a change projected because the them, in none of recount showed that Dade full recount Miami- alone, standing enough would be probably gain would result in net result, though alter the statewide even Suppose Gore votes. further projected changes combined total of their punch each the 17 card counties that voted swung would have the election result back to sample for Bush over Gore a manual recount Bush. conducting showed that a full manual recount

1206 wrong The constitutional live. 24, 27-28, the voters 101 449 U.S. Sparks, v. Dennis pres- in the (1980) (“[T]o case and hypothetical in that 185 183, 186,66 L.Ed.2d S.Ct. in image of the one mirror § is the 1983 ent case law’ for of state color ‘under act 814, 89 S.Ct. U.S. Ogilvie, v. 394 Moore that the defen require not does purposes (1969). as the Just 1493, 23 L.Ed.2d It the of State. an officer dant counting a state from forbids in Constitution participant willful is a he that enough they come less because votes weighting or agents. its the State with joint action counties, it also for- populated more with state from jointly engaged persons, Private weighting counting or a from acting state action are bids challenged in the officials more they come from less because of votes purposes law for color’ ... ‘under Yet that counties. (citation omitted); populated actions.”) sparsely Gray § 1983 in the manual recounts 374-75, what precisely the Sanders, U.S. (1963) (“We counties does. agree Florida selected L.Ed.2d 821 state and conclude result with that underlying that the central fact Recall of the phase preliminary regulation in manual recounts theory behind the the action.”) makes it state process election Beach, Miami-Dade Broward, and Palm omitted). Flor (citation the State What system punch the card is that Counties constitutionally officials cannot ida and its inevitably results necessarily and voting Demo the Florida alone, the State and do counted being votes not some intended either. jointly cannot do Party acting cratic is a manual recount. there unless provid- a statute that enacted If Florida man- the at 1195-97. With selective supra correct- for procedure recount aed manual Florida Democratic that the recounts ual of the by the caused use the undervote ing jointly have officials Party government and system, provided but voting card punch about, differ- are treated voters brought in- could be procedure corrective that the they live. upon where ently depending counties populous in the 3 only most voked punch card voters two sets of There state, question no one would the up by picked not to vote are whose efforts be unconstitution- provision a would such set, the fa- One tаbulating machines. the no it unconstitutional al.11 And would be Beach, Broward, one, Palm vored lives of the purpose the how rational matter The second Counties. and Miami-Dade example, that Suppose, statute. other the misfortune live has set to con- more efficient thought it was state votes card The punch counties. really big in the manual recounts duct count; set of the second set the votes first counties, worth punch card effort using the same not. Two do voters little, popu- sparsely to do it in effort stylus punch against identical press I lated, card punch counties. vote-poor ef- identical bringing about the card would this Court judge no hope that candi- to Presidential on chad next fect would be constitutional- such a law suggest differently. See O’Brien are treated date ly permissible. Skinner, 524, 529, 94 S.Ct. 414 U.S. (1974) uncon- (holding L.Ed.2d 702 unan- or should be we would reason citi- which two under statute stitutional holding such a law unconstitution- imous in cell the same “sitting side differ- zens side treat al cannot votes is that states as to vot- may receive different treatment in which upon the counties ently depending only recount "[i]f ballots removed hypothetical statute is not far 11. The tabu- the vote [sample] an error in I indicates As that Florida does have. statute out, affect outcome ap- could pointed lation statute previously election”). require- apparent if Because permit a manual recount pears to full case, ment, encourages every the statute that a full re- sample indicates recount cases, that the man- may require in some election county could affect the count in that populous, requested 102.166(5) (the more recounts be ual Fla. Stat. result. counties. manually all vote-rich canvassing recount board can counted, ing rights”). One vote is say the went on to duty he felt “a to warn other not. The sole reason is that if the final certified total for balloting Party, acting Florida Democratic with the State figures includes state, authority given to it generated from this system two-tier of dif- interests, pursuing political own its chose fering behavior by official canvassing to have one vote counted and the other boards, the State will incur a legal jeopar- not. dy, under both the U.S. and state constitu- tions.” That “legal jeopardy” under the The aptly put matter was in a letter United States Constitution is what Attorney Florida General Robert Butter- litigation is about.12 worth wrote to the Chair the Palm County Beach Canvassing Board on No- accept If we what the Florida Democrat- vember 2000. The letter referred to Party us, ic has told we can put even the “extremely legal serious” issues that estimate on the number of affected voters if would arise manual recounts were con- who are being discriminated against ducted some counties but not others. manual recount: the number who tried to system He said that “a report- two-tier for vote for a Presidential candidate but were result,” ing votes would and: prevented doing from so punch card system A two-tier would have the effect system and for whom being no effort is of treating differently, voters depending to made ascertain their true intent. The upon county they what voted in. A vot- Party says that optical system scanner in county er where a manual count was used in most Florida provides counties conducted would having benefit from a good results and the undervote counties better of having chance his or her vote system .40%, using only is which the actually county counted than a voter in a Party says is what we expect about should where a hand count was halted. i.e., naturally, to occur by virtue of voter Trans, Touchston, Ex., 9-16, Hearing, intent, at in a Presidential election in Florida. exactly 44-45 & 48. That is the situаtion Brief of Intervenor/Appellee Florida Dem- resulting from the 23-24, Florida Democratic ocratic Party at Touchston v. Party McDermott, (filed and Florida’s state or local officials No. 00-15985 in the 11th acting 2000). jointly manually to recount votes Nov. Cir. Yet the undervote in only 24 punch 3 of the punch counties, card counties. Party says, card is letter, Attorney Thus, approximately General Butterworth 3.2%. Id. at 10. Butterworth, who manually recounting county is the co-chair of the If in one campaign for the Democratic nomi- punch system does not have a card results in President, Touchston, Hearing nee for see "legal jeopardy” being because voters are Trans, at wrote the letter and an attached differently county treated in that from voters advisory opinion persuade in order to Palm counties, punch conducting card then man- County manually Beach punch recount its punch ual recounts in a few of the card possi- card ballots. The letter referred to the similarly counties also treats situated voters bility County, that Seminole which did not punch differently, in the card counties punch system, use the manually card had "legal jeopardy.” results in recounted its ballots. The Florida Democrat- speak The Butterworth letter does of the us, however, Party represented ic optical that the being "differing different treatment a result of system voting, scan or marksense boards,” canvassing behavior of official but it uses, which County is what Seminole see Party was the Florida Democratic that chose A, "provides good Chart results" and a no- canvassing boards could under- percentage expect vote that one would to oc- pursuant take a manual recount Fla. Stat. naturally, Intervenor/Appellee cur see Brief of 102.166(4). And, already I have ex- 23-24, Party Florida Democratic Touchston plained, Supreme precedent McDermott, Court establishes (filed No. 00-15985 in the 11th counties, choosing Party 2000). that in those was Party says Cir. Nov. action, engaged system plagued in state and could not do problems is not the same punch system government as the card what the Constitution forbids of- used in Palm Beach doing. and the 23 other counties. ficials from state, dis- cannot with the conjunction rate caused undervote in the difference upon the voters based among criminate accept the if system, we card punch counties, they also so of their The population 2.8%. approximately is figures, Party’s based among voters not discriminate cast ballots number total as ex- and beliefs opinions upon political no in which card counties punch those 2,013,666. whom by the candidates pressed conducted being recount fo- Shifting the their ballots. voters cast Chart C. population the selection cus of machine- Party-supplied Applying weight simply adds preference political fig- to that rate 2.8% caused-undervote of the to that First Amendment 56,382 voters in estimated us an gives ure in prohibiting Clause Equal Protection counties who card punch the non-selected unconsti- way there is selectivity. Either thwarted votes but were cast their tried to the voters against discrimination tutional another.13 or of one kind problems by chad for not selected card counties punch in the 56,000 whom voters than more It is those vote is to right “Their recounts. manual conjunc- in Party, Florida Democratic the as that to vote right same not the simply discriminating state, is the tion with of the part in a favored living of those recount. in its selective against 563, 84 U.S. at Reynolds, 377 State.” fellow citi- similarly situated their Unlike at 1382. S.Ct. counties, no populous zens in the 3 most com- their true to ascertain constitutional being face the is made the

effort weighted re-enfranchising those treаted and thereby votes be mand that intent — thwarted the voter vote were of where attempts regardless the same whose manually in- technology by state, the defen- in the a various defects lives within — As the arguments. card ballots. punch their several specting respond with dants Sims, Reynolds in due that are Supreme they argue Court held is states thing One different- of citizens the elections “[wjeighting way they votes run in the deference means, merely be- any II, 1, or 2 of the ly, by § method cl. and, light in of Article reside, they happen 5, of where are Constitution, § cause states and 3 U.S.C. must be justifiable. seems One hardly when it comes special due deference the forbids Constitution ever aware are due But states of electors. selection simpleminded as as well ‘sophisticated selecting they go if about no deference ” 377 U.S. at of discrimination.’ modes pro- specific violates way electors omitted). (citations 563, at 1382 S.Ct. 84 Constitution, the including visions Supreme The Equal Protection Clause. the and same applies analysis same power that the expressly held Court has course, reached, if one is conclusion to select the gives II states that Article being as not the the factor views selection way in a cannot be exercised electors instead the of the counties but population See Equal the Protection Clause. violates for cast the of votes percentage number Rhodes, 23, 29, 89 393 U.S. Williams Party’s nominee Democratic Florida (1968) (“Nor 9-10, 24 here). 5, 21 L.Ed.2d (both S.Ct. coincided factors counties power to select thought can it state, acting political party Just as out, the mark- supra 5 & C. When n. Chart See already pointed have IAs is vote optical no rate 1.43% sense subtracted, scan Party’s estimated undervote 2.8% Democratic F, resulting differ- see Chart optical scan difference between remaining no vote between the upon ence rates was based incom- punch card counties optical scan data, punch complete card counties now know from plete and we Applying rate to the is 2.19%. vote” rates counties in "no that the difference data actually remaining However, of ballots cast if number supra n. 5. 2.49%. Miami-Dade, if the Par- Broward, indicates that punch card counties results 44,099 correct, excluded, are theory ty’s there central then Beach Counties Palm intended 21 counties whose in those remaining punch voters vote of no rate not counted. President was vote drops from 3 counties .92% 3.62%. card way electors could be exercised in such a I already As explained, although express as to violate constitutional com- the Republican Party or its candidate specifically mands that bar States from could have requested a manual recount in passing certain kinds of laws.... We any counties, of Florida’s per- the statute therefore hold that no State can pass law mits full manual recounts in only those regulating elections that Four- violates the counties which a sample manual recount teenth Amendment’s command that ‘No indicates “an error in the vote tabulation deny shall ... person State ... which could affect the outcome of the elec- ”); accord, equal protection of the laws.’ 102.166(5). § tion.” Fla. Stat. Some of Celebrezze, 780, Anderson v. 460 U.S. the punch card counties are sparsely so n. 103 S.Ct. 1573 n. populated, poor, so vote that even if a (1983). all, L.Ed.2d 547 After Moore v. manual recount requested had been and a Ogilvie, 394 U.S. sample recount conducted provided (1969), applied L.Ed.2d person, one 102.166(4)(d), Fla. Stat. the result of that one vote doctrine to strike down an Illinois sample recount would not have indicated statute in a involving case the selection of that a full manual recount in electors. The issue is not about Article II could affect the outcome of the election. 5;§ or 3 it U.S.C. is about whether the So, even if the Republican Party question selective manual recounts in or its vio- do, late the they Constitution. candidate had requested Because manual recounts nothing in Article II certainly nothing and every in punch county, card process any in federal statute insulate that uncon- would still have ended up treating some remedy.14 stitutional action from punch card differently voters upon based issue, they counties which lived. Getting closer to the The Con- merits argue defendants also that Florida law stitution forbids that. permits any political party with a candi- another, There is a more fundamental ballot, date on the any candidate whose flaw in argument treating punch ballot, appears name on the to file a writ- card differently voters depending upon the request ten with the county canvassing county of their permissible residence is board for a manual recount. See Fla. Stat. Republican because the Party or its candi- 102.166(4)(a). § equal There is no protec- have, not, date could but did prevent that problem,

tion they say, because the Re- difference in treatment. The constitution- publican Party or its could candidate rights al involved are those of requested the voters that manual recounts be con- punch ducted each of the other punch card card counties. It is counties. their argument This is not at all persuasive. votes and their constitutional rights at 14. Some of the defendants seek cover from availability found that the of a recount was Hartke, Roudebush v. 405 U.S. necessary guard against irregularity to (1972), 31 L.Ed.2d 1 but it does not tabulation, says errors in vote that "[a] provide any for them. That did decision not integral part recount is an of the Indiana voters, equal protection rights address the process electoral and is within the ambit of did discriminatory applica- nor it involve the powers delegated the broad to the States genera] tion of election laws in or of recount I, § Art. Id. 4.” 92 S.Ct. at 810-11. particular. laws in It decided the nar- enough, True but a recount is not more row issue of whether a recount of the ballots integral process to the electoral than the actu- cast in an election for the United States Sen- itself, seen, al already election and as we have ate was a valid power exercise of a state’s to II, permit § Article 4 does not states to con- times, prescribe places, and manner of way specific duct a elections in that violates a I, 4, holding pursuant § elections to Article provision Equal constitutional such infringement was instead a forbidden on the Protection Clause. It follows that states can- I, power gives § that Article the Senate to way not conduct recounts in a that violates judge qualifications itsof members. clause, either. opinion The in Roudebush does observe Indiana, states, along many with other had after until hand, be filed cannot other constitutional whose voters

stake. certifies permitted canvassing board county are not last being violated are rights Fla. 102.168(2), § recount. a manual results, Fla. request see Stat. to loophole 102.166(4)(a). is no There § does, Stat. kicks presumption it once what permits in the Constitution any relief granting against weighs ac- unconstitutional be otherwise would law, offi- “elected Florida Under contest. party third simply because to occur tion duties their perform presumed cials not, it from prevent have, did but could in the ab- manner and lawful proper ain that both Therefore, the fact occurring. con- to the showing of a sufficient sence request permitted parties were presumption that is a and “there trary,” re- the selective not shield does recounts officials are by election certified returns attack. constitutional counts Boardman correct.” presumed be put the defendants argument Another (cita- (Fla.1976) Esteva, 323 So.2d criticism responds forward omitted). tion Attorney General previous one. in his Butterworth, was so concerned who of time. Besides, problem is the there “legal about the letter November .2000 until be instituted cannot contests Election if would his state be jeopardy” the last the date midnight of “after system in which “two-tier” there was a to canvass empowered canvassing board in some counties occurred manual recounts the elec the results returns certifies later filed others, fortnight but Fla. Stat. being contested.” tion noth- there is telling us in this Court brief 102.168(2). enough time might That According to all. worry after ing to about contest, file a ordinary circumstances po- latest Butterworth’s Attorney General ap trial and through the litigated it have can recounts subject, manual sition on the system, state court stages of the pellate Stat. under Fla. granted requested be recount, have to a manual right the win or discrimi- 102.166(4)(a)-(c)in as selective in that recount arising imag- any mind can issues way as the human natory a conclusion, the have afoul of Constitu- and running litigated ine without to be although reason, that says, he tion. The Maybe, but cir accepted. new result at a manual recount request a cannot voter cases are rise to these giving cumstances a voter process, the election stage with, effective ordinary. begin To try to an election contest can later file time not some next case is deadline recount a manual to conduct get court elections, most with year as it might contest. part of as 12, drop- and the instead is December but n Even unpersuasive. That argument 18, 2000. December Not deadline is dead provides law that Florida assuming that, Supreme Court the Florida but request voters for individual mechanism county can for the last the time extended election as part manual recounts results certify vassing board its contest, legal burdens practical days from 7 after the Secretary of State seeks to who upon an individual imposed in Fla. election, specified Stat. the time different, entirely an election are contest 102.112, November until §§ 102.111 and burdensome, than those and far more after the 2000, days elec which is 19 meet order or candidate must party Harris, vacat 772 So.2d tion. request filed A recount. obtain manual County Canvass Beach ed, v. Palm Bush before by political party candidate —471, U.S. -, Bd., ing out merely has to set certified results are - curiam). (2000) That (per L.Ed.2d recount, a manual grounds for that would days period out cut Fla. grant can it. county canvassing board for conduct- provided contest, been 102.166(4). otherwise have on An election Stat.

12H ing through an election contest to conclu- cy. It is concerned with values other than sion. the outcome of elections. To say that it is sufficient to remedy only those constitu- inability

We know from the of Miami- tional violations that matter political Palm Dade and Beach Counties to finish parties the actual manual recounts even the and their say candidates is to Supreme extended time the Florida Court rights of voters themselves do not matter. them, allotted it would have been anyone seriously Can suggest impossible a practical matter for a voter Sims, Reynolds Sanders, Gray v. in, example, Hillsborough County, a Ogilvie Moore v. doctrines apply only 369,467 punch county card in which ballots when election results changed? would be elеction, were east in the Presidential see When Supreme Reynolds Court C, Chart to file an election contest de- said, “[t]o the extent that a citizen’s right manding a manual recount in that county, debased, to vote is he is that much less a try court, the case before the trial succeed citizen,” U.S. at 84 S.Ct. at appeal on time for the canvassing board the Court did not add “unless it makes no complete to conduct and a full manual difference in the election results.” When recount, and then have arising issues the Court that “the said basic principle in that recount decided. An election con- representative government remains, and test under Florida law is practical not a remain, must unchanged weight of a —the remedy for voters who have been discrimi- citizen’s vote cannot be depend made to against nated in the Florida Democratic lives,” id., where he surely the Court did Party’s punch selection of card counties in not mean for that principle basic to be which to request a manual recount. inapplicable except where it was outcome Even if there were enough time for such determinative for a candidate. manual recounts after the period extended In Moore there “absolutely was no indi- for the canvassing boards to report, cation in appellants there is another the record that serious obstacle to a voter not, using effort, the Florida if proce- they election contest could had made the dures to secure a manual recount in that easily satisfied 50-county, 200-sig- Illinois’ county. voter’s Except of outright cases nature requirement,” see 394 U.S. at 820- fraud, bribery, or corruption, other or the (Stewart, J., 89 S.Ct. at 1497 dissent- ineligibility for office of the successful can- words, In ing). other absolutely there was didate, Florida law requires anyone that no indication the that differential treat- an filing election contest show that correc- ment of upon citizens based the in counties tion of problem complained the about which they lived affected whether any would change the results of the election. get would-be candidate could on the ballot. 102.168(3)(e) See Fla. (“Receipt Stat. of a Nonetheless, Supreme the Court did not illegal rejection number of votes or of a hesitate to strike down the discrimination legal number of votes change sufficient to voters, among explaining that “[t]he idea place in or doubt the result of the elec- group that one granted greater can be tion.”) (3)(e) (“Any & other or allega- cause voting strength than another is hostile to which, sustained, if tion would show that a man, the one repre- one vote basis of our person other than the successful candidate government.” sentative Id. at was the person duly nominated elected person, S.Ct. 1496. The one one vote office.”). If the voter cannot show principle depend is not so fickle as to upon that the constitutional violation he suffered the closeness of an election. election, changed the result he has grounds no contesting the election un- last argument relating One to the merits der the Florida election statute. put which is forward several of the defendants is that there is no constitution-

While Florida’s interest in bottom line election al violation in certainly results is selective manual recounts expedient, Constitution demands expedien- upon county residence, more than based of because more favor the voters the election: to the counties among variations there candi- for one who went counties systems populous and. different systems election their ameliorates that process other with rates. date error rise to different give process that undervote, applying while mandates

words, the Constitution unless undervote worse same or voting to ameliorate the same county use every that that counties populous in less problems selec- prohibit cannot logically it system, answer The candidate? in counties the other rates went for of error tive correction constitutionally permissible why not? But it is not system. that use the same that the voters vote in favor of number of discriminate to Why are differences Miami-Dade, Beach, varia- Broward, of local a result Palm as that occur errors counties, systems before of those of vote any combination tions choice punch of se- equivalent in the other constitutional the voters against election the upon post- based to a it comes correction errors lective card counties when problem the election? after the undervote remedy of residence election system technology. voting caused believe that reason to There is no for itself attempt to choose county would reminded Supreme Court The high error rate with a voting system sight of must not lose “Courts us that: com- disadvantage its citizens order election laws: purpose of fundamental There other counties. pared those and safe- to facilitate are intended laws par- political every reason believe express of each voter right guard selectively choose will or candidates ties repre- of our the context her will in his or pro- to initiate the in which the counties Harris, 772 So.2d democracy.” sentative how upon based recounts cess manual omitted). (footnote But we also at 1237 population. their voted and counties those constitutional sight of the not lose must is differ- the two actions The intent behind pro- protection, guarantee equal of that importance ent. To understand facilitating selectively from states hibits difference, hypothetical. this consider of voters rights safeguarding mandated legislature Suppose state live in the state. they upon where based in each systems to be used type voting laws, applied election Florida’s urban deliberately favored county, and case, prohibition. run afoul of systems would low-error with counties undervote, sticking while keep down that we Finally, the contend defendants high-error systems rural with counties merits of the decide the not even need those the undervote would increase case because claims in this constitutional thereby reducing their influence counties an irrepa not suffered plaintiffs have legisla- Maybe elections. statewide assertion on They injury. base rable ture, members dominated First, main the defendants premises. two counties, just to wanted populous more juncture this inappropriate that it is at tain place. Is in their country folks keep injunctive permanent to decide whether would legislation that such there doubt disagree for the I be issued. relief should and Reynolds under be unconstitutional supra See already stated. I have reasons unconstitution- It be related cases? would 1194-95, Thornburgh Am. discussing at discriminatory choice though the al even 476 Gynecologists, & Obstetricians Coll. of end, the elec- the front before occurred on 2169, 2176-77, 747, 755-57, 106 S.Ct. U.S. tion, though involved variations it even (1986). Second, the defen 779 90 L.Ed.2d in different coun- systems used in the vote pro equal there no is maintain dants ties. until the out unless and violation tection by the is altered of the constitutionally per- come election How can it be then manually ballots similar, of the recounted inclusion materially dis- to make a missible But, Ias results. in Florida’s certified after back еnd choice criminatory

1213 already explained, similarly the constitutional treatment of situated voters vio inflicted when the ballots of simi- lates the Equal harm is Protection Clause. That voters are counted and larly injury situated constitutional to right their to vote differently, and that harm exists weighted irreparable, since it “cannot be undone the outcome of the election. regardless of through monetary Cunning remedies.” Adams, (11th 815, ham v. 808 F.2d 821 injunction permanent The standard for a Cir.1987), unquantifla- both because of the essentially preliminary the same as for right ble nature of the to vote as well as its injunction except plaintiff must importance fundamental in our system of actual on the instead show success merits representative democracy. Reynolds a likelihood of success. Amoco Prod. of Sims, 533, 562, 1362, 377 U.S. 84 S.Ct. 531, Village of Gambell, v.Co. 480 U.S. 1381, 506(1964) (the 12 L.Ed.2d right to 12, n. 1404 n. is “a political vote fundamental right, be (1987). L.Ed.2d 542 In addition to suc cause preservative [it is] of all rights”) merits, ceeding plaintiff on the must (citation omitted). quotations See also presence “demonstrate the of two ele Northeastern Chapter Fla. the Assoc. continuing if irreparable injury ments: of of Jacksonville, City Gen. Contractors v. issue, injunction not lack does and the (11th Cir.1990) (dis 896 F.2d adequate remedy at law.” Newman v. cussing (11th cases which this Ala., Court has rec State 683 F.2d Cir.1982). ognized that an on-going of the violation Explaining the distinction be privacy rights First Amendment or consti “irreparable injury” tween and “adequate irreparable tutes law,” injury, and remedy predecessor stating our circuit “[t]he rationale behind these decisions was said: speech chilled free invasions prerequisite perma- [T]he essential nature, privacy, intangible because of their injunction unavailability nent is the of an could not compensated by monetary be adequate remedy at law. Irreparable words, damages; in other is, however, basis, plaintiffs could injury proba- one whole”). not be one, made bly major showing the inad- equacy any legal remedy.... Often surprisingly, Not suggestion there is no inju- concepts “irreparable times the by the defendants that there is an ade- ry” remedy and “no adequate at law” quate remedy voting- at law to address the indistinguishable.... irrepa- “[T]he rights injury presented this ease. See injury rable rubric is intended to de- Dillard v. County, F.Supp. Crenshaw quality severity scribe the (M.D.Ala.1986)(“Given 1347, 1363 fun- necessary harm in- trigger equitable vote, damental right nature of the mon- contrast, tervention. the inadequate etary obviously remedies would inade- remedy possibilities test looks to the case; quate simply possible this it is relief, alternative modes of however seri- pay having someone for been denied a initial injury.” ous the right importance.”). There is an Baune, Leíais v. S.S. F.2d irreparable injury right to vote for (5th Cir.1976) (citations omitted). remedy which there is no adequate at law.

Here, plaintiffs Accordingly, granting I believe that in- requested junctive these two cases have succeeded on the relief is the rem- appropriate merits establishing disparate edy.

Appendices Lauderdale, FL, Ezrol, PA, Ft. Georgette Doody SIEGEL, & L. Sosa Ned FL, Kraftchick, Miami, L. Ro- al., Alan Lee Douglas, et Plaintiffs- FL, Blossom, DeLand, Box Charles Appellants, land Cullen, Atlanta, Jones, III, GA, A. Mark Raton, Firm, P.A., Boca Szymoniak Burton, LEPORE, Charles E. Theresa Adelman, Wynn ‍​​​​​​‌​​​‌‌​‌‌‌‌‌‌​​​‌‌‌​‌‌​‌​​​​‌​‌​​​‌‌‌​​‌​‌‍FL, Teresa David Isaac Defendants-Appellees. al., et Fleming, Carey P. Roseborough, H. John Orr, Law- Allegra No. 00-15981. A. J. DeDeyn, James Whitaker, III, rence, Suther- Francis C. Appeals, States Court United Atlanta, GA, Brennan, LLP, land, Asbill & Eleventh Circuit. Fla. of La- Jeffrey Meyers, Dept, Andrew Lauderdale, Dec. Sec., Ft. Employment bor & Eckert, FL, Schnebly, Vo- D. Tura Daniel Case, LLP, Jimenez, D. White & Marcos Gummey, Frank B. Cty. Legal Dept., lusia Olson, Miami, FI, B. Thomas G. Theodore DeLandf, FL, Bruce III, Rogow, Bruce S. Nelson, R. Douglas Hungar, Daniel W. FL, Lauderdale, De- P.A., for Ft. Rogow, LLP, Gibson, Crutcher, Cox, Dunn & fendants-Appellees. DC, Plaintiffs-Appellants. for Washington, AL, Montgomery, Lauderdale, FL, Campbell, B. Pohl, Charles Ft. Beverly A. Alabama, At- Cherof, Josias, Goren, Amicus Curiae Start Goren, S. Samuel

Case Details

Case Name: Ned L. Siegel, Georgette Sosa Douglas v. Theresa Lepore, Charles E. Burton

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Dec 18, 2000

Citation: 234 F.3d 1163

Docket Number: 00-15981

Court Abbreviation: 11th Cir.