Gore High Court Filing (Excerpts)
Here are excerpts of the filing by Al Gore's lawyers to the U.S. Supreme Court on December 10, 2000 in the Florida recount case:
This case raises the most fundamental questions about the legitimacy of political power in our democracy. In this case, the Court will decide whether the Electors for President of the United States, and thus the President of the United States himself, will be chosen by ascertaining the actual outcome of the popular vote in Florida in the election of November 7, 2000, or whether the President will instead be chosen without counting all the ballots lawfully cast in that state.
The Florida Supreme Court has determined, in a way that would be unremarkable but for the stakes in this election, that in order to determine whether lawfully cast ballots have been wrongfully excluded from the certified vote tally in this election, they must be examined. This is basic, essential, to our democracy, and to all that gives it legitimacy.
The central question posed by this case is whether any provision of federal law legitimately forecloses the Florida Supreme Court from interpreting, applying, and enforcing the statutes enacted by the Florida Legislature to determine all election contests and ascertain the actual outcome of the popular vote in any such election. See Fla. Stat. Section 102.168; see also Florida Election Code, Fla. Stat. Sections 97.011-106.37.
This process which operates by popular vote and employs administrative and judicial processes when needed to ascertain which candidate has prevailed is the only provision by which the Florida Legislature has established the manner of appointing Florida's Presidential electors in the 2000 general election. They are common provisions that have been adopted and utilized for decades in the vast majority of the States. See infra.
These statutes expressly provide for "judicial determination" of any contest to determine the rightful winner of an election, as called for by 3 U.S.C. Section 5. Those statutes having been faithfully applied by the Florida Supreme Court in this case, the question is whether this Court may properly override Florida's own state-law process for determining the rightful winner of its electoral votes in this Presidential election. Such intervention would run an impermissible risk of tainting the result of the election in Florida and thereby the nation. For this Court has long championed the fundamental right of all who are qualified to cast their votes "and to have their votes counted." Reynolds v. Sims, 377 U.S. 533, 554 (1964).
Petitioners' request that this Court intervene in a state electoral process to ensure that votes are not counted turns Sims on its head. In the end, notwithstanding fears as to how "counting of the votes" may "cast a cloud upon what (Governor Bush) claims to be the legitimacy of his election," Bush v. Gore, No. 00-949 (A-504), Slip op. at 2 (Dec. 9, 2000) (Salia, J., concurring), there can be little doubt that a count of the still uncounted votes, as the Florida Supreme Court ordered in this case, will eventually occur.
The only question is whether these votes will be counted before the Electoral College meets to select the next President, or whether this Court will instead relegate them to be counted only by scholars and researchers under Florida's sunshine laws, after the next President is elected. Nothing in federal law, the United States Constitution, or the opinions of this Court compel it to choose the second course over the first.
Until now, petitioners have steadfastly taken the position before the Florida courts that, consistent with settled Florida law, a contest action is the proper means by which respondent should challenge the vote count in this election. It is inconsistent for them now to object to the very contest procedure they previously endorsed.
Moreover, contest actions under Florida law relate only to the ballots which one side or the other contests virtually every Florida election contest case involves a small fraction of the votes cast in the contested election. In any event, the Florida Supreme Court's order to review the ballots from Miami-Dade County is consistent with established state law. The Florida Supreme Court's order of a manual tabulation of ballots that were recorded as "no votes" is also consistent with state law.
Nor does the "voter intent" standard set by Florida law violate the Equal Protection Clause. The Florida Supreme Court has ordered not the "selective" recount of which petitioners have complained but a statewide recount of all uncounted ballots in every Florida county that had not already completed a manual recount.
Indeed, the Florida Supreme Court expressly granted petitioners the relief they sought with respect to a statewide recount; petitioners are in no position to complain about a point on which they prevailed. Petitioners' allegations about the manner in which they say the manual counts have been conducted have no support in the record and are based on unsubstantiated rumors, untested "evidence," and biased ex parte submissions.
In fact, the recounts have been conducted in full public view by counting teams made up of representatives from different political parties, with the supervision of a three-member canvassing board that includes a sitting county judge and review by the Florida judiciary. The circuit court developed lengthy and detailed guidelines to ensure uniformity and accuracy. If there are anecdotal instances of isolated mistakes or inaccuracies during recounts, petitioners have ample remedies available to them under Florida law and Florida procedure to secure full redress.
In the end, petitioners' argument amounts to a charge that the system of manual recounts, expressly authorized by Florida statute and previously used in innumerable instances ovethe years by Florida (and States throughout the country) is unconstitutional on its face. Such an ambitious and far-reaching claim has no legal support whatsoever. The judgment should be affirmed. Because of the pressing need to complete the counting of votes, we ask that the stay be lifted immediately.