PRESIDENTIAL ELECTION LAW/The Recount
   ... edited by Tony Sutin, Dean and Assoc. Professor, Appalachian School of Law

Frequently-Asked-Questions || Latest Legal News | Statutes and Cases | Departments and Officials || Lawsuits and Documents | Electoral College | Glossary | Legal Commentary || Presidential Election Law Home
覧覧覧覧覧覧覧覧覧覧覧覧覧覧
[last updated and archived December 14, 2000] We welcome your feedback and questions: e-mail JURIST@law.pitt.edu
覧覧覧覧覧覧覧覧覧覧覧覧覧覧
Lawsuits and Documents

The Florida recount unleashed a veritable blizzard of lawsuits, opinions, orders and letters. This annotated collection is selective, and is designed to highlight major developments in the leading cases (for additional documents, see the institutional links indicated, or click here). All key documents included are in PDF format unless otherwise indicated, and require the Adobe Acrobat Reader.

Federal Courts (U.S. Supreme Court, 11th Circuit, District Court)

The Bush Campaign and certain Florida voters assert that the Florida recount raises constitutional issues within the jurisdiction of the federal courts.

Bush v. Gore

Request for U.S. Supreme Court stay and review of the December 8, 2000 ruling of the Florida Supreme Court in Gore v. Harris (see below) holding that manual recounts should resume. On December 12, 2000, in a split decision which effectively ended the recount controversy and ensured George W. Bush's status as President-elect, the Court reversed the Florida Supreme Court and remanded the case for final order and certification.

Bush v. Palm Beach County Canvassing Board

Request for U.S. Supreme Court review of the November 21, 2000 ruling of the Florida Supreme Court in Palm Beach County Canvassing Board v. Harris, (see below) holding that hand recounts may continue. The Supreme Court granted certiorari and heard oral arguments on December 1. On December 3, it issued a per curiam Opinion vacating the Order of the Florida Supreme Court and remanding the case to that court for further proceedings.

Siegel v. LePore

In this case (and Touchston, see below) the plaintiffs asserted equal protection and other constitutional violations stemming from the ongoing manual recounts. A federal district court judge and the U.S. Court of Appeals for the 11th Circuit both declined to issue an injunction to halt the recounts. The 11th Circuit noted that the primary responsibility for the election rested with the State of Florida and its courts. The United States Supreme Court denied certiorari from the injunction ruling on November 24, 2000. The 11th Circuit heard oral argument on the merits on December 5, 2000 and handed down its Opinion on December 6, 2000, affirming the denial of the injunctions.

  • ... read the Complaint (HTML Washington Post)
  • ... read the Emergency Motion for a temporary restraining order
  • ... read U.S. District Court Judge Donald Middlebrooks' Order [HTML excerpts Miami Herald] (November 13, 2000)
  • ... read the Bush Campaign's Complaint to the U.S. Eleventh Circuit Court of Appeals (HTML Atlanta Journal-Constitution)
  • ... read the Order of the U.S. Eleventh Circuit Court of Appeals [applying to both Siegel and Touchston] (HTML Atlanta Journal-Constitution) (November 17, 2000)
  • ... read the Bush Campaign's petition for a writ of certiorari to the U.S Supreme Court
  • ... read the U.S. Supreme Court Order denying certiorari in Siegel and granting certiorari in Bush
  • ... read the Order on oral argument
  • ... read the Opinion of the Court (December 6, 2000)

  • ... additional documents filed with the 11th Circuit Court of Appeals

Touchston v. McDermott

Harris et al. v. State of Florida Election Canvassing Commission et al.

As Medina v. Florida Election Canvassing Commission, this suit originally revolved around the counting of absentee ballots that were not received by election day, as Florida statute alledgedly requires. The case was later removed to the U.S. District Court (Florida Northern), where it was joined with Harris v. Florida Elections Canvassing Commission. On December 9, 2000, Judge Maurice Paul ruled against the plaintiffs, finding no basis for rejecting the ballots in state or federal law.

  • ... read the original Complaint in Circuit Court
  • ... read Judge Maurice Paul's Order (U.S. District Court, Florida Northern)
  • ... read the 11th Circuit Court of Appeals' Opinion upholding Judge's Paul's Order (December 11, 2000)
Bush v. Hillsborough County Canvassing Board

The Bush Campaign sued the Hillsborough County Canvassing Board for rejecting overseas undated and unpostmarked absentee ballots (including military ballots). On December 8, 2000, Judge Lacey Collier refused to order the inclusion of undated ballots, but said that rejection of ballots for lack of a postmark only was contrary to federal law.

Jones v. Bush

This lawsuit alleged that Republican VP candidate Cheney's August trip to Wyoming to register to vote in that state was insufficient to make him an "inhabitant" of Wyoming and no longer an inhabitant of Texas. The Twelfth Amendment to the U.S. Constitution provides a state's electors may not vote for a President and Vice President if both are inhabitants of the same state with themselves. On December 1, U.S. District Court Judge Sidney Fitzwater, sitting in Dallas, ruled that the plaintiffs lacked standing to pursue this claim and went on to rule that Mr. Cheney cannot be considered an inhabitant of Texas, given his "intent that Wyoming be his place of habitation." On December 7, 2000 the U.S. Fifth Circuit Court of Appeals upheld Judge Fitzwater in an oral ruling from the bench.

  • ... read the Complaint
  • ... read the Judge Sidney Fitzwater's ruling (December 1, 2000)

State Courts (Florida Supreme Court, Circuit Court, County Court)

The Florida state courts are responsible for interpreting Florida election law.

Gore v. Harris et al.

The Gore Campaign contested the certified returns and sought manual recounts in three Florida counties: Miami-Dade, Nassau and Palm Beach. After an adverse ruling at trial from Judge N. Sanders Sauls, the Florida Supreme Court ruled that manual recounts should resume. The Bush Campaign immediately sought stays from various courts, and certiorari from the U.S. Supreme Court. The Florida Supreme Court and the U.S. 11th Circuit declined to issue stays, but the U.S. Supreme Court issued a stay mid-afternoon on Saturday, December 9, and scheduled oral arguments in Bush v. Gore (see above) for Monday, December 11, 2000. On December 12, 2000, in a split decision, the U.S. Supreem Court reversed the Florida Supreme Court and remanded the case back to that Court for further proceedings consistent with its order.

Jacobs v. Seminole County Canvassing Board et al.

This suit was initially filed by a voter in Seminole County challenging allegedly unlawful assistance given by county election officials to Republican workers who added missing information to absentee ballot applications; it sought disqualification of some 10,000 absentee ballots cast in that county and counted in the Secretary of State's certification. The case was refiled as an election contest and was heard by Florida Circuit Court Judge Nikki Clark; on December 8, 2000, she ruled that despite ballot application irregularities, the election results would stand and no ballots would be set aside. The Supreme Court of Florida upheld her ruling on appeal on December 12, 2000.

Taylor v. Martin County Canvassing Board et al.

This suit challenges the legality of absentee ballots in Martin County which were partially filled in by Republican workers. On December 8, 2000, Judge Terry Lewis ruled that despite ballot application irregularities, the election results would stand and no ballots would be set aside. The Supreme Court of Florida upheld his ruling on appeal on December 12, 2000.

Brown et al. v. Stafford et al.

This suit is an election contest brought by Duval County voters and the Rev. Jesse Jackson's Rainbow Coalition against the members of the Duval County Canvassing Board, alleging that due to the form of the ballot used in Duval County, many voters were effectively denied their right to vote.

Gore v. Miami-Dade County Canvassing Board

When the Canvassing Board of Miami-Dade County stopped its manual recount on November 23, 2000, the Gore Campaign filed suit for an Order to have it resumed. The Florida Supreme Court refused to issue such an Order. The Gore Campaign subsequently indicated that, under Florida law, it would contest the election in Miami-Dade County (see Gore v. Harris, supra).

Bush v. Bay County Canvassing Board et al.

The Bush Campaign brought an action to ensure counting of overseas military ballots previously rejected on technicalities. After Leon County Circuit Court Judge L. Ralph Smith, Jr. expressed scepticism about the Bush arguments, the Campaign voluntarily withdrew its suit on November 26, 2000, claiming that the 14 Florida counties named in it were already in "substantial agreement" with the Bush position and so it was not necessary to proceed.

Palm Beach County Canvassing Board v. Harris [later consolidated with McDermott, infra]

In response to the Palm Beach Canvassing Board's request for guidance in the face of conflicting legal opinions on the permissiblity of conducting a full manual recout, the Florida Supreme Court authorized the County to proceed with its manual recount. On November 17, the Court barred the Secretary of State from certifying the election results pending oral arguments on Monday, November 20. On November 21, 2000, the Court ruled that manually-recounted votes must be included in the final certified tallies. The Bush Campaign appealed to the United States Supreme Court (see Bush v. Palm Beach Canvassing Board, above), which on December 3, 2000, issued a Opinion vacating the Order of the Florida Supreme Court and remanding the case back to it for further proceedings. That Court issued its Order on Remand on December 11, 2000.

McDermott v. Harris [now consolidated with Palm Beach County Canvassing Board v. Harris, supra]

This case challenged the Florida Secretary of State's authority to refuse to accept recounted returns after the putative November 14 deadline. On Friday November 17, Judge Terry Lewis ruled that the Secretary, on the limited evidence available, acted within her discretion in declining to include late-filed returns. Before the Secretary of State could certify the Florida returns, however, the Florida Supreme Court issued a stayed pending consideration of the Palm Beach Canvassing Board case (above).

Harris v. Circuit Judges of the 11th, 15th & 17th Judicial Circuits of Florida

The Florida Supreme Court denied the request by Florida's Secretary of State to halt manual recounts and consolidate the various pending lawsuits.

Florida Democratic Party v. Carroll [to compel manual recount in Broward County]

The following cases were launched in Palm Beach County; several were later consolidated:

  • Florida Democratic Party v. Palm Beach Canvassing Board

    In this action Judge Jorge Labarga of the Florida Circuit Court in Palm Beach County was asked to rule on the standards for recounting ballots in Palm Beach, and especially on the appropriateness of considering "dimpled chads" in manually-recounted votes. On November 22, 2000 Judge Labarga ruled that ballots of this type could not be summarily excluded from the recount.

Documents

覧覧覧覧覧覧覧覧覧覧覧
The Electoral College

When American voters go to the polls to vote for president, many believe that they are participating in a direct election of the president. Technically, this is not the case, due to the existence of the electoral college, established in Article II, Section I, of the U.S. Constitution.

The electoral college is the name given a group of "electors" who are nominated by political activists and party members within the states. On election day these electors, pledged to one or another candidate, are popularly elected. In December following the presidential vote the electors meet in their respective state capitals and cast ballots for president and vice president. To be elected, a president requires 270 electoral votes.

In recent history, the electors have never cast their ballots against the winner of the popular vote. For all intents and purposes, the electoral college vote, which for technical reasons is weighted in favor of whoever wins the popular election, increases the apparent majority of the winning candidate and lends legitimacy to the popular choice. It is still possible, however, that in a close race or a multiparty race the electoral college might not cast 270 votes in favor of any candidate in that event, the House of Representatives would choose the next president.

Source: U.S. Department of State

覧覧覧覧覧覧覧覧覧覧覧
Glossary

Terms and definitions...

    Butterfly ballot
    The form of ballot used in Palm Beach County, consisting of two leaves in book form, with chad to be punched out from the center; using with the Votomatic system.

    Canvassing Board
    The local officials responsible for administering and certifying the election results on a county level in Florida.

    Certification
    Official designation of the winner of an election.

    Chad
    Small pieces of a punchcard ballot that are intended to detach from the ballot when punched with a stylus by a voter. Chad that does not detach fully can either be tri chad (detached in only one corner), swinging chad (detached in two corners), or hanging chad (detached in three corners). Dimpled chad and a pregnant punch show some evidence of indentation but have not detached from the ballot.

    Circuit Court
    The trial or entry-level court of general jurisdiction in Florida.

    Contest
    A challenge to the legality of the result of an election.

    Electors
    Two meanings in Florida: voters, and those appointed to the Electoral College.

    Equal protection
    The guarantee of the Fourteenth Amendment of the Constitution of the United States that states may not draw arbitrary or invidious distinctions between people.

    Manual recount
    A recount of votes by hand inspection.

    Overvoted ballot
    A ballot on which the voter chose more than one candidate for president.

    Protest
    A challenge to the accuracy or correctness of the tabulation of votes in an election.

    Punch-card ballot
    Form of ballot in which voter indicates choices by punching out chad; used by approximately 1/3 of U.S. voters.

    Sunlight test
    An approach to evaluate a punch-card ballot during a manual recount in which the counting teams determine whether sunlight can be seen through the perimeter of the chad.

    Undervoted ballot
    A ballot on which the voter did not choose a candidate for president (according to machine reading).

    Vote dilution
    Claim that a manipulation of election rules or practices has resulted in loss of effect or significance that otherwise would have been given to the votes of a group of people.

覧覧覧覧覧覧覧覧覧覧覧
Legal Commentary

Law professors share their perspectives and opinions [views expressed are solely those of the authors]...

JURIST welcomes academic submissions for this section; contact JURIST@law.pitt.edu

覧覧覧覧覧覧覧覧覧覧覧

More Presidential Election Law...

HOSTED BY:

U. of Pgh. School of Law

Tony Sutin is Dean and Associate Professor of Law at the Appalachian School of Law in Grundy, Virginia. He previously practiced election law and litigated ballot access, voting rights and campaign finance issues at Hogan & Hartson L.L.P. in Washington, D.C., where he represented the Democratic National Committee, the Clinton/Gore92 campaign, the Tsongas for President Committee, the Presidential Inaugural Committee and others.  He has served on the Executive Committee of the Campaign Ethics Committee of the American Bar Association Young Lawyers Division, and on the Executive Committee of the National Lawyers Council of the Democratic National Committee. He is a 1984 graduate of Harvard Law School.