Hey Neo, thought you and the thread would enjoy reading this brief.
November 28, 2000
Pryor, Bennett File Friend of Court Brief in U.S. Supreme Court in Presidential Election Dispute
ago.state.al.us
(MONTGOMERY)-Attorney General Bill Pryor and Secretary of State Jim Bennett today filed a friend-of-the-court brief asking the U.S. Supreme Court to reverse the Florida Supreme Court's ruling last week in the presidential election dispute. Pryor said that Alabama has a profound interest in preserving constitutional guidelines that require elections to be conducted with "fundamental fairness," that election procedures may not be changed after an election, and that the Florida court usurped the powers properly reserved to the executive and legislative branches of government. Because of the magnitude of wrongs that have occurred at the state court level, it is not only right, but also essential that the federal courts step in to protect this federal right to fundamental fairness in elections, he added.
The case currently before the U.S. Supreme Court, George W. Bush v. Palm Beach County Canvassing Board, poses questions of whether the Florida Supreme Court acted improperly in changing deadlines that had been set by the Legislature for votes to be certified and ordering the state Secretary of State to accept the late counts from certain counties. The litigation specifically involves the counting of ballots cast on November 7 in the Florida presidential election.
The State of Alabama's particular interest in the Bush v. Palm Beach case stems from its striking similarity to an Alabama case decided by the U.S. Court of Appeals for the 11th Circuit five years ago, Roe v. Alabama, involving the counting of unwitnessed absentee ballots in the 1994 election for Chief Justice of the Supreme Court of Alabama. The 11th Circuit determined that such unwitnessed ballots had not been counted in the past, and declared that changing the procedure for counting such ballots after the election had been held was a violation of the U.S. Constitution's requirement that election procedures be fundamentally fair. The State of Alabama subsequently reformed its election laws to ensure adherence to this constitutional mandate, and the Secretary of State and Attorney General have relied on the Roe decision in enforcing election laws, advising state officials, and ensuring that election procedures in Alabama are and remain fundamentally fair.
While the federal courts ordinarily do not involve themselves in "garden variety election disputes," the 11th Circuit stated in Roe, if the election process becomes fundamentally unfair, the resulting violation of due process demands federal relief. "Like the case now before this Court, however, Roe was no "garden variety" election dispute," Pryor states in his brief to the U.S. Supreme Court. "Like this case, the post-election change in election procedures by the state courts raised serious questions about the fundamental fairness of the election process."
The practice before the November 1994 election in Alabama was to disregard absentee ballots that had not been properly notarized or witnessed. Following an election so close that the outcome could be determined by unwitnessed absentee ballots, were they counted, the Montgomery County Circuit Court changed the normal election procedure and ordered them counted. The U.S. District Court for the Southern District of Alabama granted a preliminary injunction to stop the count, ruling it unconstitutional to depart from Alabama's longstanding policy of not counting unwitnessed ballots.
In upholding the District Court, the 11th Circuit stated that counting ballots that had not been previously counted would dilute the votes of those who had cast legal ballots and would be a "change in the rules after the election" that disenfranchised those who would have voted but for the old rules. Furthermore, the 11th Circuit specifically rejected the option of requiring the matter to be pursued in state court, calling it "highly doubtful" that the state courts had jurisdiction to grant relief.
Although the State ultimately prevailed in its effort to preserve the fundamental fairness of its election procedures, Pryor notes in today's brief to the Supreme Court, "as a result of the circuit court's attempt to change the rules for counting ballots after the election, the people of Alabama were deprived of their choice for Chief Justice for more than nine months--one eighth of his total term in office." The case was handled personally by Pryor, then a deputy attorney general.
The Alabama Attorney General added, "The process now unfolding in Florida as a result of the change in state law by the Supreme Court of Florida portends different, but perhaps more frightening ills. The process now underway in Florida is undermining public confidence in the presidency and the Republic itself as voters across the country watch canvassing boards stare at tiny pieces of cardboard to divine whether a voter's 'dimpled chad' means the voter wanted to vote for a candidate or decided not to vote at the last minute. If post-election changes to election procedures in Florida are approved by this Court, other states will be flooded with similar post-election litigation. Any disgruntled candidate who loses by a narrow margin will have an incentive to file a protest, argue for a new set of rules, and then keep counting until the votes are 'found.'"
Reminding the Court of longstanding federal precedents, Pryor cited Brown v. O'Brien, a 1972 case in which the District of Columbia Circuit stated "there can be no dispute that the very integrity of the (election) process rests on the assumption that clear rules will be established and that, once established, they will be enforced fairly, consistently, and without discrimination as long as they remain in force" and Duncan v. Poythress, a 1981 ruling by the former Fifth Circuit that said the Court "could imagine no claim more deserving of constitutional protection than the allegation that state officials have purposely abrogated the right to vote, a vote that is fundamental to our society and preservative of all individual rights."
Pryor told the U.S. Supreme Court that "these cases underscore that the right to vote, at bottom, is a federal right. . . if a state election procedure is so flawed as to be fundamentally unfair, that process violates due process. Where, as in Roe and in this case, a state supreme court materially changes state election procedure after an election has occurred and while votes are still being counted, that change is fundamentally unfair and violates the due process rights of the voters and the candidates."
In the Florida case, the state Supreme Court fundamentally altered the election procedures by dramatically increasing the time period in which election protests by candidates can be considered and by extending deadlines the Legislature had set for certification of the vote. Pryor argues that this unfairly penalized citizens and other candidates, who expected that under the previous rules they would have adequate opportunity to pursue a post-certification election contest. He states that it is unfair to citizens that their votes will be counted by different standards. He also argues that it is unfair for election officials to second-guess voters and attribute political speech that was not intended by voters, who may have meant to send a message of 'none of the above' by not voting.
Another similarity between the Alabama and Florida cases, according to Pryor, is "the special need for deferring to the exclusive, constitutional authority of legislative bodies to establish rules for voting before an election rather than allowing courts to create rules for voting to apply retroactively in post-election disputes." Particularly regarding the appointment of presidential electors, he told the Court, "the Constitution does not refer this matter to the entire State government but to the State Legislature alone," and that Congress directed if electors are not appointed as prescribed, they will be appointed "in such a manner as the legislature of such state may direct."
The Alabama Attorney General concluded his argument to the U.S. Supreme Court with a reminder from federalist and founding father James Madison that "Without the intervention of the State legislatures, the President of the United States cannot be elected at all. They must in all cases have a great share in his appointment, and will perhaps, in most cases, of themselves determine it." Therefore, Pryor said, "as in Roe, the judicial usurpation of this state legislative authority by the Supreme Court of Florida violated the Constitution, and its fundamental unfairness must be redressed by the federal judiciary."
GET THE FULL BRIEF AT ago.state.al.us |
