Bush High Court Filing (Excerpts)

Here are excerpts of the filing by George W. Bush's lawyers to the U.S. Supreme Court on December 10, 2000 in the Florida recount case:

And, while the Florida court stated that it was "cognizant" of 3 U.S.C. Section 5, which creates a "safe harbor" allowing a State to afford conclusive effect to its choice of presidential electors, it completely rewrote the Florida Legislature's pre-election laws designed to take advantage of that provision. The court's newly devised scheme for re-tabulating votes is plainly arbitrary, capricious, unequal, and standardless.

The court below not only failed to acknowledge that its earlier decision had been vacated, it openly relied on manual recounts that had occurred only because of that opinion as a predicate for changing the Secretary of State's certification of the election and as the foundation for its statewide recount plan. It compounded that manifest overreaching by overriding its own "equitable" deadlines, created two weeks ago, as well as the legislature's carefully wrought timetable.

The Florida court's decision imposes its decree on counties that were never part of the proceedings below, overrides statutory authority explicitly vested in the state's chief election officer and local canvassing boards, designates new officials to supervise in place of the officials specified in Florida's election code to discharge that function, establishes a standard for the instigation of recounts not recognizable under Florida law, requires manual recounts of "under-voted" but not "over-voted" ballots, and mandates inconsistent recounts within certain counties, in violation of fundamental principles of equal protection and due process.

The majority of the Florida Supreme Court announced sweeping and novel procedures for recounting selected Florida ballots to determine anew the winner of the November 7 presidential election in Florida. This latest manual recount regime would be conducted according to varying and unspecified standards, by officials unspecified in Florida's election law, and according to an ambiguous and apparently unknowable timetable.

The Florida Supreme Court has not only violated the Constitution and federal law, it has created a regime virtually guaranteed to incite controversy, suspicion, and lack of confidence not only in the process but in te result that such a process would produce.

The Florida legislature's Article II power thus transcends any limitations sought to be imposed by the Florida Constitution. Contrary to the Gore respondents' assertion, the supreme court's reliance on the state constitution as a purported basis for jurisdiction cannot be justified on the grounds that the courts must "assume that the Legislature passed the contest statute with knowledge of the prior existing laws."

That principle of interpretation was not invoked by the court below, and in any event cannot be tortured into the proposition that the contest statute incorporates "the ordinary accouterments of appellate review of circuit court decisions." Id. That canon of construction, whatever it may mean in other circumstances, cannot mean that the legislature can simply be deemed to have granted to the state supreme court authority to review contest proceedings in cases where Article II must be observed.

The new electoral system created by the Florida Supreme Court is not facially neutral, but even if it were, the disparate treatment of voters based on the counties or geographic regions in which they live would nonetheless violate the Constitution.

Votes that have already been included in the count may be counted again, after examination, as undervotes. Such double-counting of votes is a plain dilution of the votes of the remaining voters in violation of the equal protection clause. That equal protection violation with respect to Miami-Dade has already occurred, and would be exacerbated if more ballots were counted.

Moreover, the decision below orders the rest of the counties in Florida to engage in the same sort of selective manual recount. Some "undervotes" would be segregated in that process that have already been included in the certified count, with the result that some votes would be counted and included twice.

By requiring further inconsistent and standardless recounts, the court's order guarantees disparate treatment for similarly situated voters. The equal protection violations are compounded by the fact that the court adopted a standard of "selective deference" to the decisions of the county canvassing boards. This conscious discrimination among voters on the basis of their county, or even precinct, of residence, violates the fundamental principle of equal protection that voters cannot be subjected to disparate treatment "merely because of where they reside."

The authority to count votes, entrusted by the Legislature to county officials subject to limited judicial review, has now been seized by the state judiciary, which alone now has authority to count votes and declare the election winner. A two step process administrative action followed by deferential judicial review has been transformed by fiat into a unitary judicial examination of the ballots, one in which the circuit court may simply commandeer any county resources it migt need to conduct its own counts.

Indeed, because those counts have been untethered from the minimal statutory moorings that the legislature prescribed for vote-counting such as bipartisan membership in counting boards subjective concepts of equity jurisprudence are the only safeguard on which petitioners could rely to expect a fair evaluation of the disputed ballots.

Especially given that there is no objective statutory standard or, even now, any judicially created standard for determining which partially perforated or "dimpled" ballots evince clear voter intent and are therefore "legal votes," there is no basis for believing that that necessarily ad hoc process would produce a result more reliable than that produced by the certified election results.