No. 00-836 ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES ------------------------------GEORGE W. BUSH Petitioner, v. PALM BEACH COUNTY CANVASSING BOARD, et al., Respondent. ------------------------------ On A Writ of Certiorari To The Supreme Court of Florida -------------------- BRIEF OF AMICI CURIAE THE COMMONWEALTH OF VIRGINIA AND THE STATES OF SOUTH CAROLINA AND NEBRASKA IN SUPPORT OF THE PETITIONER --------------------MARK L. EARLEY CHARLIE CONDON Attorney General of Virginia Attorney General of South Carolina P. O. Box 11549 RANDOLPH A. BEALES Columbia, South Carolina 29211 Chief Deputy Attorney General (803) 734-3970 WILLIAM HENRY HURD DON STENBERG Solicitor General Attorney General of Nebraska Counsel of Record 2115 State Capitol Lincoln, NE 68509 Office of the Attorney General (402) 471-2682 900 East Main Street Richmond, Virginia 23219 (804) 786-2436 [Other counsel listed on signature page]
TABLE OF CONTENTSTABLE OF AUTHORITIES
INTERESTS OF AMICI CURIAEThe Constitution of the United States grants to each State the right toparticipate -- as a State -- in electing the President of the United States. EachState holds a number of electoral votes, which will be cast for the candidatefavored by its people when the Electoral College meets in December. Each Statehas a profound interest in ensuring that electors from other States have been chosenaccording to law. If a slate of electors is seated in violation of the law, their voteswill effectively disenfranchise the States whose votes they wrongfully offset.
The unlawful events in Florida that gave rise to this lawsuit are a matter ofgrave concern to the Amici. Although those events have not, so far, altered theslate of electors that will be seated, the matter is not yet concluded. Electors havenow been certified; however, new challenges and contests are expected. Thedisenfranchisement that the Amici fear may yet occur. Florida has twenty-fiveelectoral votes. Three of the Amici states -- Virginia, South Carolina andNebraska -- collectively have twenty-six. Twenty-five of these votes would benegated wrongfully if the now-certified Florida electors favoring George W. Bushwere ousted in favor of a competing slate seated through unlawful means.
This is not, however, an issue confined to the 2000 election, or to Statescurrently in danger of disenfranchisement. Allowing the violations of federal lawto go unchecked would invite similar -- perhaps competing -- misconduct in future elections, possibly disenfranchising other States and surely underminingpublic confidence in the outcome of the election. In order to preserve theirelectoral votes -- and the constitutional system of which they form a part -- theCommonwealth of Virginia and the States of South Carolina and Nebraska file thisbrief as Amici Curiae in support of the petitioner, George W. Bush.
One of the issues before this Court is whether actions by the FloridaSupreme Court violate the Due Process Clause and/or 3 U.S.C. § 5. This statuterequires a State to resolve controversies relating to the appointment of electorsunder "laws enacted prior to" Election Day, and fundamental principles of dueprocess allow nothing less. The actions in question include post-election decisionsby the Florida Supreme Court that (i) arrogate to themselves the discretionpreviously vested by law in the Florida Secretary of State with respect to recountdeadlines, and (ii) create a later deadline previously unknown in Florida law forlocal canvassing boards to complete and certify their recount results. Thepetitioner will show that the Florida court's actions violate applicable federal law.The Amici will show that the violation is not harmless, and that the real harmcaused is exacerbated by the factual context in which it occurred. The post-election change in Florida law announced by the Supreme Court of that Stateallows -- and was intended to allow -- yet another post-election change of law:the counting of "dimpled chads" as votes.
The effect of the Florida Supreme Court's decision was to give three heavilyDemocratic counties -- Broward, Miami-Dade, and Palm Beach -- more time toconduct a manual recount of the ballots cast on November 7. During the recountsin those counties, supporters of the respondent, Albert Gore, Jr., demanded that so-called "dimpled chads" be included in the tally. (In fact, now that the results havebeen certified, Vice President Gore has filed suit claiming that the failure to countsuch ballots was unlawful.) Amici do not contend that the Constitution or federallaw speak directly to the issue of dimpled chads. It is important for the Court torecognize, however, that this issue arose in Florida only because of the statesupreme court's decision to extend the deadline for manual recounts. Thus, theviolation of 3 U.S.C. § 5 inherent in the court's decision may have prejudiced --and may still prejudice -- petitioner Bush because it gave the selected counties theopportunity to explore new ways of counting votes at the behest of his opponent.This is the kind of real-world effect that Congress undoubtedly sought to avoidwhen it provided, in 3 U.S.C. § 5, that election disputes must be decided accordingto laws enacted before the election is held.
Background: Punch Card VotingOne of the voting systems often employed in the United States involves theuse of punch card ballots. Several Florida counties use the punch card system.Voters are given a card containing a matrix of numbered positions arranged incolumns and rows. Each position has been pre-scored to create a small rectanglethat is held in place at each of its four corners. This rectangular piece of card stockis known as a "chad." In the voting booth, the voter slides his card into a slot thataligns the numbered positions with a template bearing the names of the candidates,with a small hole next to each candidate's name. By pressing a stylus through thehole next to the name of a candidate, the voter dislodges the corresponding chad,thereby creating a small hole in the card that will allow light to pass. The ballot isthen fed into an electronic counting device that registers a vote for each candidatewhose chad has been dislodged. Where the voter has voted for more than onecandidate in the same race, the tabulating device will recognize the overvote andcount the ballot for neither candidate.
Sometimes, a chad on a punch card ballot is only partially dislodged andremains affixed to the ballot by one, two or three corners. These chads are knownas "hanging chads" and are sometimes further differentiated by the number ofcorners that remain attached: One corner attached -- "hanging chad;" two cornersattached -- "swinging door chad;" and three corners attached -- "tri-chad." What Isa Chad? available at http://www.cnn.com (last visited Nov. 27, 2000).
What is at issue here are not partially dislodged chads, but chads that areindented or that bulge in some way while remaining attached to the card at all fourcorners. Such indented -- or dimpled1 -- chads may occur when a voter places thestylus in the hole, but decides not to punch through. Dimpled chads may alsooccur by rough handling of the ballot or by imprecise manufacturing of the ballot.It can occur if the chad is pressed with a stylus or similar object while the ballot islying on a hard, flat surface.2 Given the many ways in which a chad might becomedimpled -- without the voter intending a vote -- the general practice in the UnitedStates is not to treat dimpled chads as votes. See infra at 10.
There are at least three other reasons why it is inappropriate to treat dimpledchads as votes. First, treating them as votes is likely to wrong two groups ofvoters: the voters whose ballots have been turned into votes for candidates they
2 It is this possibility that has led Respondents to suggest that dimpled chads maybe the result of voting in a booth where "the voting machine [has] becomeclogged with chads from previous voters." Brief in Opposition of Respondents, at6, n.2. Notwithstanding this theory, Respondents'brief contains no suggestion thatany "clogged machines" were ever reported to poll workers or otherwisediscovered in Florida.
did not support, and the voters whose actual votes for the competing candidateshave been wrongfully offset.
Second, treating indented chads as votes invites inconsistency. Some voterschoose to express their ambivalence by punching out the chads of two or morecandidates, thereby canceling out their own vote. If an indentation reflects avoter's intent to punch out a chad, then logically every punch card ballot must bereexamined to see whether the vote cast by a detached chad has been cancelled outby an indented chad found on the same ballot and in the same race. There is noindication, however, that recount officials in Florida are taking such a consistentapproach to the treatment of indented chads.
Third, every voter has an opportunity to inspect his or her ballot beforeturning it in to be counted. The law presumes that public officials discharge theirresponsibilities appropriately. See, e.g., Gallardo y Seary v. Noble, 236 U.S. 135(1915). The law must presume as much about the average citizen exercising his orher responsibilities as a voter. Given the instructions provided to Florida voters,see infra at 7, it must be presumed that a citizen who intends to cast a vote for acandidate will not turn in a ballot on which the candidate's chad is merelyindented. To treat indented chads as votes turns this presumption upside down bypresuming that citizens do not know what they are doing when they come to thepolls. Such an anti-democratic presumption ought not to guide our nation's mostdemocratic process.3
Florida Law: Before and After the ElectionBefore November 7, 2000, the three counties where the manual recount hasbeen most at issue -- Palm Beach, Miami-Dade and Broward -- did not recognizeindented chads as votes. Prior adherence to this rule is shown, for example, by theofficial guidelines administered for a decade by the Palm Beach CountyCanvassing Board:
[A] chad that is partially hanging or partially punched may be countedas a vote, since it is possible to punch through the card and still nottotally dislodge the chad. But a chad that is fully attached, bearingonly an indentation, should not be counted as a vote. An indentationmay result from a voter placing a stylus in the position, but notpunching through. Thus, an indentation is not evidence of intent tocast a valid vote.Palm Beach County, Guidelines on Ballots With Chads Not Completely Removed(adopted Nov. 2, 1990) (emphasis added).
AFTER VOTING, CHECK YOUR BALLOT CARD TO BESURE YOUR VOTING SELECTIONS ARE CLEARLY ANDCLEANLY PUNCHED AND THERE ARE NO CHIPS LEFTHANGING ON THE BACK OF THE CARD.App. to Pet. for Cert. at 14a.
In the days immediately following this year's election, the Palm BeachCanvassing Board still followed the established rule on indented chads -- theBoard did not consider them votes. Then -- in the middle of the recount -- theBoard abandoned the rule. "Nicks, dings and indentations" were then treated -- insome cases -- as votes even though they were "marks that are barely discernable tothe human eye." Roberto Suru and George Lardner, Jr., Gore Gains in Broward,Bush in Palm Beach, WASHINGTON POST, Nov. 25, 2000, at A1 (quoting JudgeCharles W. Burton, head of the Palm Beach Canvassing Board). Standing alone,this change in the rules would be enough to run afoul of due process and 3 U.S.C.§ 5. But, to compound the problem, no new written standard was ever adopted forwhen indentations would be treated as votes. "[B]allot inspectors in Palm BeachCounty switched standards in the middle of the manual count, a development thatproduced quite a spectacle." Martin Merzer and Caroline J. Keough, As Bush FilesSuit, Sunday Morning, Recount Shows Gore Gains 36 Votes in Palm BeachCounty, Bush Loses 3, MIAMI HERALD, Nov. 13, 2000. Replacing a settled, writtenrule with this post-election, ad hoc approach cannot be squared with the certaintycontemplated by both fairness and federal law.
Palm Beach was not alone. Broward County started the recount by notcounting indented chads, but began to include them after the recount hadprogressed about half-way. See Don Van Natta, Jr., Counting the Vote: TheRecount, NEW YORK TIMES, Nov. 20, 2000, at A1. In fact, Broward changed itsstandards twice, once before the Florida Supreme Court decision and, again, afterthat decision. See, e.g., Mark Silva, Partisans on Both Sides May Not Accept Fla.Supreme Court Decision, MIAMI HERALD, Nov. 20, 2000 ("Broward canvassingboard Sunday [Nov. 19] broadened its standards for evaluating ballots .--"); SusanFenechio, Republicans, Democrats Wrangle Over Broward's Dimples , MIAMIHERALD, Nov. 24, 2000 ("Canvassing board members said the only rule they werefollowing was the order from the Florida Supreme Court, which on Tuesday [Nov.21] directed them to determine voter intent on a ballot-by-ballot basis. The courtset no guidelines, however.") As in Palm Beach, the indentations considered votesin Broward County were tiny -- so tiny as to require one judge to use amagnifying glass to confirm or dispute their presence. See John F. Harris, HighCourt to Hear Bush Appeal, WASHINGTON Post, Nov. 25, 2000, at A1 (showingphotograph of wide-eyed election judge peering at ballot through magnifyingglass).
Miami-Dade County also historically used a "two-corner" standard forcounting punch card ballots, but changed the standard to include indented chadsduring that county's abbreviated hand count. See Don Van Natta, Jr., Counting theVote: The Ballots; Dimpled Votes Are New Hope for Democrats, NEW YORKTIMES, Nov. 22, 2000, at A1.
The New Rule Is Contrary To The Weight of AuthorityThe post-election rule changes in three Florida counties are especiallyegregious since they place those jurisdictions at odds with the great weight ofauthority on the handling of punch card ballots. The proper handling of chads wasthe subject of bipartisan agreement in the U.S. House of Representatives in the1985 election contest between Frank McCloskey and Rick McIntyre over aCongressional election in Indiana. While that agreement recognized the need toremove chads in certain circumstances, Congress did not treat chads as votes ifthey were merely indented:
It was the Recount Director's recommendation that the auditors beinstructed to remove any chad -- if that chad was hanging by twocorners or less. It was the Recount Director's professional opinionthat a ballot could be in that condition only if the voter unmistakablyintended to punch that position. The Recount Director'srecommendation was agreed to by both Majority and Minority.Committee on House Administration, U.S. House of Representatives, Relating toElection of A Representative From The Eighth Congressional District of Indiana,H.R. Rep. No. 99-58 at 33 (Apr. 29, 1985) (second emphasis added).
In 1989, there was a statewide recount in the Virginia gubernatorial race.Based on official returns, the Democrat, L. Douglas Wilder, appeared to defeat theRepublican, J. Marshall Coleman, by a margin of 6,854 out of 1,787,424 votescast, a margin of less than one half of one percent. Coleman then petitioned for arecount, which Virginia law provides must be conducted under the auspices of aspecial three-judge court. Va. Code § 24.2-801 (formerly § 24.1-249). It is mostinstructive that, although the recount procedures were vigorously contested, thecounting of indented chads was recognized by all sides as being out of bounds.Instead, invoking the bipartisan precedent of the 1985 McCloskey/McIntyreCongressional contest, Coleman sought to count as votes only those punch cardballots where two or more corners had been detached. Coleman v. Wilder, Cir. Ct.City of Richmond (No. N 8541-1) (1989), Petitioner's Memorandum RegardingRecount Procedures, at 25-26. Wilder was unwilling to go even that far, stating:
A physical recount of the punch card ballots used in this electionwould be fraught with tabulation errors. The ballots are designed withthe specific intent to be read and counted by machine tabulators, and,as a consequence, they are not easily read by the human eye . -- [T]hecounting of votes by such machines is inherently more reliable than amanual count. Displacing the machine generated results with theresults of a hand counting of punch cards would be a giant step awayfrom achieving an accurate vote count.Id., Respondent's Memorandum Concerning Recount Procedures, at 25. Therecount court resolved the issue by denying any manual recount of punch cardballots, but allowing them to be re-read by re-programmed and re-testedcomputers. Id., Order Fixing Procedures, at 6, 8.
A 1994 recount in Ohio also involved the question of how to count"bulging" or "indented" chads. The Ohio Secretary of State resolved that questionby deciding that such chads are not to be treated as votes, adopting instead thesame bipartisan, "two-corner" rule used in the 1985 Congressional contest. TheSecretary of State said:
I believe that the "two corner" rule provides an objective andequitable standard to determine voter intent and whether a particularvote should be counted. A chad hanging by two or less cornersindicates that voter's intent to vote in that the voter attempted to pushthe stylus through the chad and vote for a particular candidate orissue. A chad attached by three or all four corners does notdemonstrate the voter's intent to vote. "Bulging" or "indented" chadsfall into the later category since the chad is still attached by all fourcorners.Letter from Secretary of State Bob Taft to Lorain and Huron County Boards ofElections 6 (Dec. 12, 1994), Secretary Taft then went on to say:
A bulging or indented chad may result from a voter placing the stylusin the hole opposite the candidate's name and then changing his or hermind. It can also occur if the ballot card is bent or in the handling ofthe card by the voter or an election official. Therefore it is merespeculation to conclude that a bulging or indented chad indicates voterintent.Id.
Other States that have dealt with partially dislodged chads have also stoppedshort of treating dimpled chads as votes. In Duffy v. Mortenson, 497 N.W.2d 437(S.D. 1993), the Supreme Court of South Dakota counted a vote registered by achad that was not entirely dislodged. The rule used by the court is also consistentwith the bipartisan rule followed in the 1985 Congressional contest.
Two of the four corners of this chad have been broken and one side isseparated. The area between the perforations is visibly separated andthe chad is indented. Additionally, when this ballot is held up to thelight, light clearly passes through the separated side of the partiallypunched chad. Therefore, we presume that this alteration was intendedas a vote for Mortenson.Id. at 440. Such an extensive analysis would have been unnecessary if mereindentation were sufficient to register a vote.
In Escalante v. City of Hermosa Beach, 195 Cal. App. 3d 1009 (1987), theCalifornia Court of Appeals delivered an opinion that is also at odds with thepractice of treating dimpled chads as votes. "When the voter is required to punchout the cross that corresponds to his choice and he fails to do so -- he has failed tomark his ballot as required by law and the vote cannot be counted." Id. at 1018-19(emphasis added) (refusing to count ballots not punched in designated votingsquares).
In Pullen v. Mulligan, 561 N.E.2d 585 (Ill. 1990), the Supreme Court ofIllinois adopted a rule more generous than the 1985 Congressional contest, but onethat still stopped short of counting indentations as votes. The court said thatrequiring a chad to be fully punched out, or to hang on the back of a ballot, wouldset too rigid a standard because "ballots with only perforations on the chad couldnot be regarded as indicating the voter's intent to vote." Id. at 614 (emphasisadded). Of course, "perforate" means more than "indent"; it means "to make ahole through." Webster's Ninth New Collegiate Dictionary 873 (1991) (emphasisadded).4
Apparently at odds with these cases are Massachusetts cases holding that "avote should be recorded for a candidate if the chad is not removed but animpression was made on or near it." Delahunt v. Johnston, 671 N.E.2d 1241(Mass. 1996). The precedential value of the Delahunt opinion is reduced,
however, by several factors not present in the current election. The contestbetween Delahunt and Johnston was the only one on the ballot and the election washeld during a "severe thunderstorm," which indicated that putative voters wouldnot have ventured to the polls motivated by anything less than a strong intent tocast a vote in that race. In light of these circumstances, it was unlikely that a largenumber of voters would have gone to the polls, partially indented the chad, andthen decided not to vote. The court cited "the large number of ballots withdiscernible impressions" as one of the conditions leading to its decision to countindented chads. Delahunt, 671 N.E.2d at 1243. In addition, it was asserted that theballots had sustained water damage, which rendered their puncture difficult andthus led to undecisive markings. See John Mintz, Most States Don't CountDimpled Ballots, WASHINGTON POST, Nov. 24, 2000, at A1.5 In any event,Massachusetts' treatment of indented chads is out of step with the rest of thecountry and cannot absolve the three Florida counties from the unlawfulness oftheir post-election change in the rules.
Judicial practice among the states is mirrored by legislative practice. Almostuniversally, states statutes that have addressed the issue of indented chads refuse totreat them as votes. For example, Indiana law expressly says that such ballots do
not represent votes: "A chad that has been indented, but not in any way separatedfrom the remainder of the card, may not be counted as a vote for a candidate or ona public question." Ind. Code Ann. § 3-12-1-9.5(d) (emphasis added). Michiganlaw says: "If the electronic voting system requires that the elector cast a vote bypunching out a hole in a ballot, the vote shall not be considered valid unless theportion of the ballot designated as a voting position is completely removed or ishanging by 1 or 2 corners or the equivalent." Mich. Comp. Laws § 168.799a.
Some States require election officials to remove chads from ballots whenthey are "loose" or "partly dislodged" or "hanging by 1 or 2 corners." The purposeof removing chads is to permit the electronic voting equipment to count the votewithout interference. By so specifying the circumstances when chads are to beremoved, these States imply that chads not meeting these criteria -- e.g. chads thatare merely indented -- are not to be removed and do not indicate votes. Forexample:
Hawaii: Election official allowed to blow on the punchcard or run fingers alongit to find "an incompletely detached chad." Code of Hawaii Rules § 2-53-16(d).
Illinois: "Chad" is defined as "that portion of a ballot card which has beendislodged or partly dislodged from the ballot card by a voter when recording avote" and requiring that such a chad be "removed from ballot cards prior to theirprocessing." Ill. Admin. Code tit. 26, § 207.60 (emphasis added).
Massachusetts: "The inspection team shall also riffle the cards to remove anyloose or hanging chads." Mass. Regs. Code tit. 950, § 54.07(6)(a) (emphasisadded).
Michigan: "When a chad is found attached to the card by 1 or 2 corners, thechad shall be removed by the inspector and the ballot card placed with the otherballot cards to be tabulated." Mich. Admin. Code § 168.783(2)(a), emphasis added.Michigan also defines "valid punch" as "a punch of a ballot card such that the chadis completely removed or is hanging by 1 or 2 corners." Mich. Admin. Code §168.771(1)(h) (emphasis added).
Montana: Description of inspection board's duties includes "hanging chad --remove chad." Mont. Admin. R. § 44.3.1744(1)(c)(ii) (emphasis added).Tennessee: Ballot box judge must be "satisfied that all hanging chads [cards]are removed" before instructing voter to place ballot in box. Tenn. Comp. R. &Regs. § 1360-2-7.07(2).
Wyoming: "Loose chad still attached to the back of any ballot cards shall beremoved." Code of Wyo. Rules 002-040-006 § 17(c)(i).
While some States have adopted a less rigorous standard, none of the statesthat have statutorily addressed the issue treat indented chads as votes withoutsomething more. For example, a Texas statute provides a specific standard thatmust be used when determining whether an indentation can be considered evidenceof intent. The statute provides, in pertinent part, that a vote on a ballot cannot becounted unless "an indentation on the chad from the stylus or other object ispresent and indicates a clearly ascertainable intent of the voter to vote." Tex.Elec. Code Ann. § 127.130(d)(3) (emphasis added) 6. By contrast, the counting ofdimpled chads in Florida has no articulable standard and is reminiscent of Alice-in-Wonderland. "It's not objectively subjective or subjectively objective, but I thinkit's somewhere in the middle. It's not a whim." Shari Rudavsky, Board Set ToTackle The Undervotes, MIAMI HERALD, Nov. 23, 2000, at 5C (quoting Chairmanof the Broward County Canvassing Board.) The Amici do not contest the right ofthe Florida legislature to enact a statute -- before an election -- similar to the oneadopted by Texas. But, the Amici do take issue with (i) the local canvassingboards' post-election rule change on counting indented chads, and (ii) the FloridaSupreme Court's post-election abolition of the statutory seven day deadline thatallowed and encouraged the free-wheeling counting of indented chads to proceed.
In sum, the great weight of authority condemns the newly minted practice oftreating dimpled chads as votes. This practice, while inherently suspect, mightnevertheless be lawful if it had been adopted before election day. But, byabandoning the rules in the middle of an election recount, the Florida countieshave violated the Due Process Clause of the Fourteenth Amendment as well as 3U.S.C. 5. By implicitly sanctioning an abandonment of the rules -- and byartificially distorting election deadlines to allow the new, unlawful rules to takeeffect -- the Florida Supreme Court has violated these same principles of federallaw. Or, as one commentator recently observed, "A basic understanding of fairplay -- not to mention respect for the law -- presumes that you don't arbitrarilychange the rules mid-game, altering deadlines or guessing at voter intent."Kathleen Parker, Rules Don't Count in Vote Recount, RICHMOND TIMES DISPATCH,NOV. 22, 2000, at A17.
CONCLUSIONThe decision of the Florida Supreme Court should be reversed.
Respectfully submitted COMMONWEALTH OF VIRGINIA STATE OF SOUTH CAROLINA AND STATE OF NEBRASKA By: _______________________ William Henry HurdMARK L. EARLEY CHARLIE CONDONAttorney General of Virginia Attorney General of South Carolina P. O. Box 11549RANDOLPH A. BEALES Columbia, South Carolina 29211Chief Deputy Attorney General (803) 734-3970WILLIAM HENRY HURD DON STENBERGSolicitor General Attorney General of NebraskaCounsel of Record 2115 State CapitolLincoln, NE 68509JUDITH WILLIAMS JAGDMANNDeputy Attorney GeneralSIRAN S. FAULDERSMAUREEN RILEY MATSENSenior Assistant Attorneys GeneralELEANOR ANNE CHESNEYANTHONY P. MEREDITHVALERIE L. MYERSAssistant Attorneys General