NEW SCOTUS AMICUS BRIEF JUST FILED BY THE ALABAMA ATTORNEY GENERAL BILL PRYOR.
(Posted by CWW on FR)
IT'S NOT EVEN AVAILABLE ON HIS WEB SITE YET. BTW, THEY ARE CCORDINATING WITH THE BUSH LAWYERS, SO THESE ARE THE ARGUMENTS YOU WILL SEE.
HERE ARE THE ACTUAL QUESTIONS ACCEPTED FOR REVIEW BY THE COURT, AND I'LL SUMMARIZE THE BUSH ARGUMENTS FROM THE BUSH BRIEFS AND THE ALABAMA AG BRIEFS:
QUESTIONS PRESENTED:
1. Whether the Florida Supreme Court erred in establishing new standards for resolving presidential election contests that conflict with legislative enactments and thereby violate Article II, Section I, Clause 2 of the United States Constitution, which provides that electors shall be appointed by each State "in such Manner as the Legislature thereof may direct."
2. Whether the Florida Supreme Court erred in establishing post-election judicially created standards that threaten to overturn the certified results of the election for the President in the State of Florida and that fail to comply with the requirements of 3 U.S.C. ¡±5, which gives conclusive effect to state court determinations only if those determinations are made "pursuant to" "laws enacted per to" election day.
3. Whether the use of arbitrary, standardless and selective manual recounts to determine results of a presidential election, including post-election judicially created selective and capricious recount procedures, that vary across counties and within counties in the State of Florida violates the Equal Protection or Due Process Clauses of the Fourteenth Amendment. BRIEF SUMMARY OF THE ARGUMENTS BY BUSH AND ALABAMA AG:
ARGUMENT #1. Material post-election changes in state canvassing procedures violate Due Process. This argument is based on the 11th Circuit's 1994 holding in Roe v. Alabama, which held that the due process clause prohibits post-election changes in election procedures. If post-election changes to election procedures in Florida are approved by the Court, other states will be flooded with similar post-election litigation. Any disgruntled candidate will have an incentive to file an election contest, argue for a new set of rules, and then keep counting and changing the rules until the requisite votes are "found."
Other cases invalidating post election changes in election procedures -- Briscoe v. Kusper, 435 F.2d 1046 (7th Cir. 1970); Griffen v. Burns, 570 F.2d 1065 (1st Cir. 1978; Brown v. O'Brien, 469 F.2d 563, stay granted, 409 U.S. 1 (per curiam, vacated as moot, 409 U.S. 816 (1972); Duncan v. Poythress, 657 F.2d 691 (5th Cir. Unit B. Sept. 1981), cert. dismissed, 459 U.S. 1012 (1982). These cases all underscore that the right to vote is a federal right. If a state election procedure is so flawed as to be fundamentally unfair, that process violates due process, e.g., material changes made by the Florida Supreme Court in the election procedures.
ARGUMENT #2 -- The judgment of the Supreme Court of Florida Violates Article II of the Constitution, 3 U.S.C. ¡± 5, and the First and Fourteenth Amendments.
ƒÞ The Judgment of the Supreme Court of Florida retroactively changed Florida election procedures -- AGAIN.
1. Change #1 ¡V Acceptance of Dimpled Chads
2. Change #1 -- Altering the standard of review by giving no deference to the decisions of executive officials who implement Florida¡¦s election laws.
3. Change #3 ¡V Authorizing manual recounts of so-called ¡§undervotes¡¨ as part of the election contest, when Florida law only allows such manual recounts in the protest phase, not the contest phase AND ordering a manual recount of only ¡§certain¡¨ ballots.
ƒÞ Counting partially punched ballots without clear, uniform standards attributes political speech to voters without their consent and dilutes proper votes by "stuffing the ballot box."
By requiring the circuit court to accept the untimely manual recounts and include them in the certified election results, the Florida Supreme Court adopted a standardless procedure and ¡§stuffed the ballot box¡¨ in violation of the voters¡¦ First Amendment right to freedom of expression and the Fourteenth Amendment rights to due process and equal protection.
Changing the rules post election to allow counting of partially punched ballots is fundamentally unfair, especially to voters who followed the instructions on the ballots, which read as follows:
¡§AFTER VOTING CHECK YOUR BALLOT CARD TO BE SURE YOUR VOTING SELECTIONS ARE CLEARLY AND CLEANLY PUNCHED AND THERE ARE NO CHIPS LEFT HANGING ON THE BACK OF THE CARD.¡¨
Where there is no clear standard by which to evaluate inadequately marked ballots, election officials and judges will inevitably place political speech in the mouths of voters unwilling to vote for either candidate. The government cannot compel voters to speak when they have chosen to remain silent.
In the absence of a clear standard, the divination of these improperly marked ballots ultimately says more about the intent of the election officials than the intent of the voters.
ƒÞ By changing the definition of "Valid Vote" and the statutory contest periods, the Supreme Court of Florida gave an unfair advantage to a campaign that chose to "front load" its challenges into the protest period.
Had the candidates known that Florida¡¦s statutory election system allowed the selective mining of votes through its manual recount system, they might have made use of the system to request at least some of the 180,000 ballots containing non-votes in the presidential race be examined. . . The post-election changes benefited the ¡§front loading¡¨ campaign by lowering the standards for determining a ¡§valid vote¡¨ and then giving it the majority of time for its challenges while reducing time available to the other campaign to respond in a contest.
ARGUMENT #3 -- The Florida Supreme Court unleashed arbitrary recounts that violate due process and equal protection.
ARGUMENT #4 -- This case illustrates the imperative of legislative, not Judicial, Supremacy in establishing election rules to ensure fundamental fairness. |
