[PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS
                     FOR THE ELEVENTH CIRCUIT
                      ________________________

                               No. 00-15981
                         ________________________

                           D. C. Docket No. 00-9009


NED L. SIEGEL,
GEORGETTE SOSA DOUGLAS, et al.,

                                                             Plaintiffs-Appellants,

                                     versus

THERESA LEPORE,
CHARLES E. BURTON, et al.,

                                                            Defendants-Appellees.

                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________
                              (December 6, 2000)

Before ANDERSON, Chief Judge, TJOFLAT, EDMONDSON, COX, BIRCH,
DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS and WILSON,
Circuit Judges.

PER CURIAM:

     This is an appeal from the denial of a preliminary injunction.
      The Republican candidates for the offices of President and Vice President of

the United States, along with several registered Florida voters, filed suit in federal

court in Miami, seeking to enjoin four Florida counties from conducting manual

recounts of ballots cast for President of the United States in the November 7, 2000,

election. The district court denied Plaintiffs’ request for preliminary injunctive

relief, and Plaintiffs appeal. For the reasons stated below, we affirm.

                                          I.

      On November 7, 2000, Florida voters cast ballots for several offices,

including votes for the twenty-five electors for President and Vice-President of the

United States. The following day, the Division of Elections for the State of Florida

reported that the Republican Party presidential ticket received 2,909,135 votes, and

the Democratic Party presidential ticket received 2,907,351 votes, for a margin of

difference of 1,784, or 0.0299% of the total Florida vote.

      Under Florida law, county canvassing boards are responsible for

determining the number of votes cast for each candidate. See Fla. Stat. § 102.141.

If a candidate for office is defeated by one-half of one percent or less of the votes

cast for such office, the canvassing board must order a recount. See 

Pursuant to this statute, because the Presidential vote returns reflected

that the Democratic ticket was defeated by less than one-half of one percent, the


                                           2
canvassing boards conducted automatic recounts of the votes. After the automatic

recounts, the Republican ticket retained the majority of votes, although by a

slimmer margin.

      Under Florida law, a manual recount may be requested by any candidate

whose name appeared on the ballot, a political committee that supports or opposes

an issue that appeared on the ballot, or a political party whose candidates’ names

appeared on the ballot. See Fla. Stat. § 102.166(4)(a). Such a request must be

filed with the canvassing board within 72 hours after midnight of the date the

election was held, or before the canvassing board has certified the challenged

results, whichever is later. See 

The canvassing board may,

but is not required to, grant the request. See 

Broward County

Canvassing Bd. v. Hogan, 

, 510 (Fla. Dist. Ct. App. 1992) (“The

statute clearly leaves the decision whether or not to hold a manual recount of the

votes as a matter to be decided within the discretion of the canvassing board.”).

The statutory manual recount provision applies to all Florida counties. Therefore,

the procedure for requesting a manual recount is the same in all counties, although

the decision of whether to conduct a manual recount would, of course, be made

separately by each county’s canvassing board.




                                          3
      Once authorized by a county canvassing board, a manual recount must

include “at least three precincts and at least 1 percent of the total votes cast for

such candidate.” 

The person requesting the recount chooses

three precincts to be recounted, and, if other precincts are recounted, the

canvassing board chooses the additional precincts. See 

results of the

manual recount indicate “an error in the vote tabulation which could affect the

outcome of the election, the county canvassing board shall: (a) Correct the error

and recount the remaining precincts with the vote tabulation system; (b) Request

the Department of State to verify the tabulation software; or (c) Manually recount

all ballots.” 

      Florida law specifies the procedures for a manual recount. Section

102.166(7) of the Florida Statutes provides that:

      (a)    The county canvassing board shall appoint as many counting
             teams of at least two electors as is necessary to manually
             recount the ballots. A counting team must have, when possible,
             members of at least two political parties. A candidate involved
             in the race shall not be a member of the counting team.

      (b)    If a counting team is unable to determine a voter's intent in
             casting a ballot, the ballot shall be presented to the county
             canvassing board for it to determine the voter's intent.

      In this case, the Florida Democratic Party filed requests for manual recounts

in Broward, Miami-Dade, Palm Beach, and Volusia Counties on November 9,


                                            4
2000, within the 72-hour statutory deadline. The stated reasons for the requests

included the closeness of the statewide race and a concern that the vote totals might

not reflect the true will of Florida voters. The apparent practical effect of a manual

recount is that some ballots which were unreadable by machine due, for example,

to voters’ failure to mark or punch the ballots in a machine-legible fashion, might

be read by human counters; and these votes could be added to the totals for each

candidate.

                                          II.

      On November 11, 2000, registered voters Ned L. Siegel from Palm Beach

County, Georgette Sosa Douglas from Broward County, Gonzalo Dorta from

Miami-Dade County, Carretta King Butler from Volusia County, Dalton Bray from

Clay County, James S. Higgins from Martin County, and Roger D. Coverly from

Seminole County, along with the Republican candidates for President and Vice-

President, George W. Bush and Richard Cheney (collectively “Plaintiffs”), filed a

Complaint and a Motion for a Temporary Restraining Order and Preliminary

Injunction in the district court for the Southern District of Florida. Plaintiffs sued

members of the county canvassing boards of Volusia, Palm Beach, Broward, and




                                           5
Miami-Dade Counties.1 Plaintiffs’ Complaint alleged that the manual recounts

violate the Fourteenth Amendment’s guarantees of due process and equal

protection, and deny and burden the First Amendment’s protection of votes and

political speech.

       Plaintiffs’ prayer for relief in their Complaint included the following:

            (a) Declaring that Defendants may not subject any vote totals to
       manual recounts;

            (b) In the alternative, declaring that Florida Statute § 102.166(4) is
       unconstitutional to the extent it does not limit the discretion of Defendants to
       conduct manual recounts in this case;

              (c) Declaring that Defendants should certify and release forthwith all
       vote totals that have been the subject of two vote counts since November 7,
       2000;

                (d) Declaring that the form of ballot used in Palm Beach County was
       valid;

             (e) Declaring that any ballot punched or marked for two Presidential
       candidates not previously counted cannot now be counted;

              (f) Consolidating or removing to this Court any and all actions filed
       across the State of Florida purporting to challenge the results of the
       November 7 statewide election or otherwise delay the certification and
       release of those results; and



       1
                There are no state defendants in this case. In addition to the parties mentioned
above, the district court granted a motion by the Florida Democratic Party to intervene, and the
Florida Democratic Party is an intervenor-appellee in this case on appeal. The Attorney General
also appeared as an amicus at oral argument to defend the constitutionality of the statute.

                                               6
             (g) Granting such other and further relief as this Court shall deem just
       and proper.

(Complaint at 16-17.)

       The Motion for a Temporary Restraining Order and Preliminary Injunction

which Plaintiffs filed with their Complaint asked, inter alia, that the district court

prohibit the county canvassing boards from proceeding with manual recounts of

the November 7th election results. Like the Complaint, this motion contended that

the manual recounts violate the First Amendment and the Due Process and Equal

Protection Clauses of the Fourteenth Amendment.

       The district court heard oral argument on the motion on November 13, 2000,

and Plaintiffs’ request for a preliminary injunction was denied. On November 14,

2000, Plaintiffs filed a notice of appeal.2

       During the pendency of this appeal, several Florida cases were appealed to

the Florida Supreme Court. In these cases, some plaintiffs challenged Florida

Secretary of State Katherine Harris’s decision to refuse to accept the results of

manual recounts submitted by county canvassing boards after the statutory

deadline of 5:00 p.m. on November 14, 2000. On November 21, 2000, in the


       2
                The documents in this case were lodged in this Court as they were filed in the
district court. Pursuant to Federal Rule of Appellate Procedure 35, this Court ordered that this
case be heard initially en banc. See Hunter v. United States, 

, 1568 (11th Cir.
1996) (en banc); Bonner v. City of Prichard, 

(11th Cir. 1981) (en banc).

                                                7
consolidated cases of Palm Beach County Canvassing Bd. v. Harris, Volusia

County Canvassing Bd. v. Harris, and Florida Democratic Party v. Harris, the

Supreme Court of Florida decided that Florida Secretary of State Harris must

accept the late-reported results of manual recounts from these counties submitted

by the evening of November 26, 2000. The Florida Supreme Court expressly

stated that neither party had raised as an issue on appeal the constitutionality of

Florida’s election laws, and it did not address federal constitutional issues in its

opinion.3

       On appeal, Plaintiffs filed an Emergency Motion for an Injunction Pending

Appeal, asking this Court to prohibit the county canvassing board Defendants from

proceeding with manual ballot recounts. This motion was denied without prejudice

on November 17, 2000. Among other things, we then said:

              Both the Constitution of the United States and 3 U.S.C. §
              5 indicate that states have the primary authority to
              determine the manner of appointing Presidential Electors
              and to resolve most controversies concerning the
              appointment of Electors. The case law is to the same
              effect, although, of course, federal courts may act to
              preserve and decide claims of violations of the
              Constitution of the United States in certain
              circumstances, especially where a state remedy is
              inadequate. In this case, the State of Florida has enacted


       3
              The United States Supreme Court recently vacated the Florida Supreme Court’s
opinion. See Bush v. Palm Beach Canv. Bd., No. 00-836 (U.S. Dec. 4, 2000).

                                             8
               detailed election dispute procedures. These procedures
               have been invoked, and are in the process of being
               implemented, both in the form of administrative actions
               by state officials and in the form of actions in state
               courts, including the Supreme Court of Florida. It has
               been represented to us that the state courts will address
               and resolve any necessary federal constitutional issues
               presented to them, including the issues raised by
               Plaintiffs in this case. If so, then state procedures are not
               in any way inadequate to preserve for ultimate review in
               the United States Supreme Court any federal questions
               arising out of such orders.

Order Denying Plaintiffs’ Emergency Motion for Injunction Pending Appeal,

Touchston v. McDermott, No. 00-15985 (Nov. 17, 2000) (citations omitted).

       Plaintiffs moved this Court to expedite the underlying appeal, which motion

we granted. This case is now before us on the appeal of the district court’s denial

of Plaintiffs’ motion for a preliminary injunction. Plaintiffs ask this Court either to

reverse the district court’s decision, enjoin the canvassing board Defendants from

conducting manual recounts or certifying election results that include manual

recounts, or order the deletion and/or non-inclusion of final vote tabulations that

reflect the results of manual recounts.4


       4
                 Plaintiffs’ request on appeal is thus broader than their request for an injunction
pending appeal, which asked only that we halt manual recounts then underway. To the extent
that Plaintiffs’ request on appeal represents a petition for permanent relief, we must decline to
convert this appeal of a denial of a preliminary injunction into a final hearing on the merits of
Plaintiffs’ claims. Our review of such a case is normally limited to whether the district court
abused its discretion; however, we recognize that an appellate court under some circumstances
may decide the merits of a case in connection with its review of a denial of a preliminary

                                                  9
       This Court has carefully considered Plaintiffs’ appeal, as well as the other

documents filed, and has conferred en banc on numerous occasions. We heard oral




injunction. See Thornburgh v. American College of Obstetricians & Gynecologists, 

, 755-56, 

, 2176 (1986).

         In Thornburgh, the Supreme Court said that “if a district court’s ruling rests solely on a
premise as to the applicable rule of law, and the facts are established or of no controlling
relevance, that ruling may be reviewed even though the appeal is from the entry of a preliminary
injunction.” 

106 S. Ct. at 2177. The Supreme Court affirmed the appellate court’s
decision to review the merits, rather than merely determine whether the district court had abused
its discretion by entering a preliminary injunction, where it had the benefit of “‘an unusually
complete factual and legal presentation from which to address the important constitutional issues
at stake.’” 

v. American College of Obstetricians & Gynecologists, 

, 290 (3d Cir. 1984)). Additionally, the Supreme Court observed that appellate review
was aided by three recent decisions from the same circuit on the constitutional issues. See 

, 2177. Thus, it stated that “when the unconstitutionality of
the particular state action under challenge is clear,” an appellate court need not abstain from
addressing the merits. 

106 S. Ct. at 2176. In so holding, however, the Supreme Court
noted that “[a] different situation is presented, of course, when there is no disagreement as to the
law, but the probability of success on the merits depends on facts that are likely to emerge at
trial.” 

n.8 (citations omitted).

        This case clearly falls within this latter category, and thus represents the very situation in
which the Supreme Court held that appellate review was not appropriate. The answer to the
constitutional questions is anything but clear. And, in stark contrast to Thornburgh, we have
before us a factual record that is largely incomplete and vigorously disputed. The district court
based its ruling on Plaintiffs’ motion for a preliminary injunction solely on limited affidavits and
the submission of few documents, including news media reports. Moreover, there was no
discovery in this case, much less a trial or a plenary hearing, and none of the scant evidence
presented to the district court was tested by the adversarial process of cross-examination. The
controlling relevant facts are fervently contested by the parties. These evidentiary infirmities are
especially problematic given that Plaintiffs’ major claims are as-applied challenges to the Florida
statutes, arguments the validity of which depends upon the development of a complete
evidentiary record. Mere expediency does not warrant this Court reaching the merits of
Plaintiffs’ claims in the absence of the necessary evidence by which to do so. Therefore,
applying the reasoning of Thornburgh, the circumstances of this case as it currently stands
require us to deny their request.

                                                 10
argument on December 5, 2000. Recognizing the importance of a resolution to this

case, a prompt decision on the appeal is required.

                                          III.

      We first consider whether Rooker-Feldman bars our exercise of subject

matter jurisdiction over Plaintiffs’ claims.

      The Rooker-Feldman doctrine provides that federal courts, other than the

United States Supreme Court, have no authority to review the final judgments of

state courts. See District of Columbia Court of Appeals v. Feldman, 

,

486, 

, 1317 (1983); Rooker v. Fidelity Trust Co., 

,

415-16, 

, 150 (1923). The doctrine extends not only to constitutional

claims presented or adjudicated by a state court, but also to claims that are

“inextricably intertwined” with a state court judgment. 

n.16; Dale v. Moore, 

, 626 (11th Cir. 1997).

A federal claim is inextricably intertwined with a state court judgment “if the

federal claim succeeds only to the extent that the state court wrongly decided the

issues before it.” Pennzoil Co. v. Texaco, Inc., 

, 25, 

,

1533 (1987) (Marshall, J., concurring).

       In light of the United States Supreme Court’s decision vacating the Florida

Supreme Court’s November 21, 2000, decision, it is unclear at the moment that any


                                           11
final judgments giving rise to Rooker-Feldman concerns now exist. See Bush v.

Palm Beach County Canv. Bd., No. 00-836 (U.S. Dec. 4, 2000). No party has

called to our attention any final judgments in the Florida state courts upon which a

Rooker-Feldman bar reasonably could be based as to these Plaintiffs.5 Thus, we

conclude that Rooker-Feldman does not bar Plaintiffs from bringing these

particular constitutional challenges to the implementation of Florida’s manual

recount provision.

       Defendants Broward, Palm Beach, and Volusia County Canvassing Boards

also argue that this case is moot because the manual recounts have been completed

and the boards have filed their certified vote tabulations with the Elections

Canvassing Commission. However, we conclude that this case is not moot.

       5
                 For similar reasons, we conclude that neither res judicata nor collateral estoppel
bars our consideration of the issue of the constitutionality of Florida’s statutory manual recount
provision. We look to Florida law to determine the application of these preclusive doctrines.
See Migra v. Warren City Sch. Dist. Bd. of Educ., 

, 81, 

, 896 (1984)
(holding that under the Full Faith and Credit Act, a federal court must give the same preclusive
effect to a state court judgment as another court of that state would give). Florida adheres to the
traditional requirement of mutuality of parties in its application of res judicata. See Albrecht v.
State of Florida, 

, 11 (Fla. 1984); State Street Bank & Trust Co. v. Badra, 

, 253 (Fla. Dist. Ct. App. 2000) (citing Youngblood v. Taylor, 

, 505 (Fla.
1956)). The parties to this case are not the same parties that appeared before the Florida
Supreme Court. Florida similarly requires mutuality of parties in the application of collateral
estoppel. See Stogniew v. McQueen, 

, 919-20 (Fla. 1995). Further, the doctrine
of collateral estoppel bars identical parties from relitigating only those issues that have
previously been decided between them. See Mobil Oil Corp. v. Shevin, 

, 374 (Fla.
1977). Where, as here, the issue in dispute has not been fully litigated, the doctrine is
inapplicable. We therefore conclude that neither res judicata nor collateral estoppel bars our
review of the constitutionality of Florida’s manual recount provision.


                                                12
       Article III of the Constitution limits federal court jurisdiction to live cases or

controversies, and the “case-or-controversy” requirement “subsists through all

stages of federal judicial proceedings, trial and appellate.” Lewis v. Continental

Bank Corp., 

, 477, 

, 1253 (1990). This Court has held

that “[a] claim for injunctive relief may become moot if: (1) it can be said with

assurance that there is no reasonable expectation that the alleged violation will

recur and (2) interim relief or events have completely and irrevocably eradicated

the effects of the alleged violation.” Reich v. Occupational Safety & Health

Review Comm’n, 

, 1201 (11th Cir. 1997).

       We conclude that neither of these elements is satisfied in this case. The

Democratic candidate, Vice President Gore, and others are currently contesting the

election results in various lawsuits in numerous Florida state courts. There are still

manual recount votes from at least Volusia and Broward Counties in the November

26th official election results of the Florida Secretary of State.6 In view of the

complex and ever-shifting circumstances of the case, we cannot say with any

confidence that no live controversy is before us.7


       6
               There may also be some manual recount votes in those results from a number of
other Florida counties, such as Seminole, Gadsden, and Polk.
       7
               Read broadly, Plaintiffs’ request for injunctive relief can be interpreted as a
request that Defendants be ordered to certify only those vote totals that resulted from machine
recounts. Because Florida Secretary of State Harris has certified the election results and because

                                               13
                                               IV.

       Defendants argue that we should abstain from hearing this case under

Burford v. Sun Oil Co., 

, 

(1943), or under Railroad

Comm’n of Tex. v. Pullman Co., 

, 

(1941). We conclude

that abstention is not appropriate in this case.

       The Burford abstention doctrine allows a federal court to dismiss a case only

if it presents difficult questions of state law bearing on policy problems of

substantial public import whose importance transcends the result in the case then at

bar, or if its adjudication in a federal forum would disrupt state efforts to establish

a coherent policy with respect to a matter of substantial public concern. See Boyes

v. Shell Oil Prods. Co., 

, 1265 (11th Cir. 2000) (citing New Orleans

Pub. Serv., Inc. v. Council of the City of New Orleans, 

, 361, 109 S.

Ct. 2506, 2514 (1989)). A central purpose furthered by Burford abstention is to

protect complex state administrative processes from undue federal interference.

See New Orleans Pub. 

, 109 S. Ct. at 2515. The case before

us does not threaten to undermine all or a substantial part of Florida’s process of



she is not yet a party to this appeal, we note that there is some question whether this Court could
order the requested relief once the Defendant canvassing boards have completed their manual
recounts and have certified their vote totals to the state Elections Canvassing Commission.
However, because we deny Plaintiffs’ motion for a preliminary injunction, we need not address
this issue.

                                                14
conducting elections and resolving election disputes. Rather, Plaintiffs’ claims in

this case target certain discrete practices set forth in a particular state statute.

Further, Burford is implicated when federal interference would disrupt a state’s

effort, through its administrative agencies, to achieve uniformity and consistency in

addressing a problem. See, e.g., Quackenbush v. Allstate Ins. Co., 

,

727-28, 

, 1727 (1996). This case does not threaten to undermine

Florida’s uniform approach to manual recounts; indeed, the crux of Plaintiffs’

complaint is the absence of strict and uniform standards for initiating or conducting

such recounts. Finally, we note that Burford abstention represents an

“extraordinary and narrow exception to the duty of a District Court to adjudicate a

controversy properly before it.” County of Allegheny v. Frank Mashuda Co., 

, 188, 

, 1063 (1959). We do not believe that the concerns

raised by Defendants in this case justify our abstention under this narrow doctrine.

       Perhaps the most persuasive justification for abstention advanced by

Defendants is based on Pullman, 

, 

; however, we

conclude that abstention under this doctrine would not be appropriate. Under the

Pullman abstention doctrine, a federal court will defer to “state court resolution of

underlying issues of state law.” Harman v. Forssenius, 

, 534, 85 S.

Ct. 1177, 1181 (1965). Two elements must be met for Pullman abstention to


                                            15
apply: (1) the case must present an unsettled question of state law, and (2) the

question of state law must be dispositive of the case or would materially alter the

constitutional question presented. See 

85 S. Ct. at 1182. The purpose of

Pullman abstention is to “avoid unnecessary friction in federal-state functions,

interference with important state functions, tentative decisions on questions of state

law, and premature constitutional adjudication.” 

is

discretionary, it is only appropriate when the question of state law can be fairly

interpreted to avoid adjudication of the constitutional question. See 

85

S. Ct. at 1182.

      Plaintiffs claim that Florida’s manual recount provision is unconstitutional

because the statute does not provide sufficient standards to guide the discretion of

county canvassing boards in granting a request for a manual recount or in

conducting such a recount. There has been no suggestion by Defendants that the

statute is appropriately subject to a more limited construction than the statute itself

indicates.

      Our conclusion that abstention is inappropriate is strengthened by the fact

that Plaintiffs allege a constitutional violation of their voting rights. In considering

abstention, we must take into account the nature of the controversy and the

importance of the right allegedly impaired. See Edwards v. Sammons, 

1240, 1243 (5th Cir. 1971) (citing, as examples of cases where the Supreme Court

referred to the nature of the right involved in upholding a refusal to abstain,

, 85 S. Ct. at 1183 (voting rights); Griffin v. County Sch.

Bd. of Prince Edward County, 

, 

(1964) (school

desegregation); Baggett v. Bullitt, 

, 

(1964) (First

Amendment rights)). Our cases have held that voting rights cases are particularly

inappropriate for abstention. See Duncan v. Poythress, 

, 697 (5th Cir.

Unit B 1981) (stating that while an alleged denial of voting rights does not

preclude federal abstention, Supreme Court precedent indicates that a federal court

should be reluctant to abstain when voting rights are at stake); 

(stating the general rule that abstention is not appropriate “in cases

involving such a strong national interest as the right to vote”). In light of this

precedent, the importance of the rights asserted by Plaintiffs counsels against our

abstention in this case; although, as discussed below, we are mindful of the limited

role of the federal courts in assessing a state’s electoral process.

      We therefore conclude that abstention is not appropriate.

                                          V.

      This is an appeal from the denial of a preliminary injunction. Plaintiffs state

two main claims. First, Plaintiffs argue that Florida’s manual recount scheme, and


                                           17
particularly Fla. Stat. § 102.166(7), is unconstitutional because it contains no

standards for when a ballot not read by the machine may be counted. They

describe their claim as an “as-applied” challenge based on the allegedly

standardless and partisan application of the (allegedly facially standardless) statute

in Palm Beach, Broward, Dade, and Volusia Counties. Plaintiffs’ chief objection

is that different criteria used by different counties, or by different election officials

within a county, may mean that the same ballot rejected in one instance is accepted

in another instance, or vice versa. They contend that such unequal treatment

violates the Equal Protection Clause and that the lack of standards by itself violates

the Due Process Clause. Plaintiffs also contend that the absence of statutory

standards for when a manual recount occurs permits arbitrary and partisan

decision-making, exacerbates the potential for unequal treatment of ballots, and

thus warrants a federal court’s intervention.

      Second, Plaintiffs assert that they are denied due process and equal

protection because, under Fla. Stat. § 102.166(4), ballots in one county may be

manually recounted while ballots in another county are not. They contend that, as

a result, similarly situated voters will not be treated similarly based purely on the

fortuity of where they reside; a ballot that would be counted in one county pursuant




                                           18
to a manual recount may not be counted elsewhere because that voter’s county did

not conduct such a recount.

       Defendants, as well as the Intervenor-Appellee, dispute all of these

contentions. They argue that Florida law does contain constitutionally adequate

standards for evaluating when a manual recount should occur and for evaluating

the ballots during such a recount, and that Plaintiffs’ as-applied claim fails because

no record evidence shows that those standards have been employed in an arbitrary

or partisan fashion. They also maintain that allowing decisions to be made on

whether a manual recount occurs on a county-by-county basis is reasonable and

consistent with the approach taken by other states, and that in any event no

constitutional violation is present for many reasons, such as there is no record

evidence indicating that a recount request was made and accepted in one Florida

county while a request made in a different county was rejected. More generally,

they raise a series of arguments for the proposition that Plaintiffs’ challenge to

Florida’s election laws does not rise to a level that would warrant federal

intervention.

      The district court, weighing the parties’ arguments, determined that

Plaintiffs had failed to show a substantial likelihood of success on the merits. We

have reviewed the competing arguments. To some extent, our consideration of


                                          19
these arguments is shaped by the practical difficulties of marshaling an adequate

record when ongoing and unexpected events continually alter the key facts. In this

case, only limited affidavits and a few documents were introduced into the record

before the district court. No formal discovery has been undertaken, and, as yet, no

evidentiary hearing has been held in this case. Many highly material allegations of

facts are vigorously contested. Preliminary injunction motions are often, by

necessity, litigated on an undeveloped record. But an undeveloped record not only

makes it harder for a plaintiff to meet his burden of proof, it also cautions against

an appellate court setting aside the district court’s exercise of its discretion.

       However, we need not decide the merits of the case to resolve this appeal,

and therefore, do not decide them at this time. The district court rejected Plaintiffs’

preliminary injunction motion not only because it found no likelihood of success

on the merits, but also on the separate and independent ground that Plaintiffs had

failed to show that irreparable injury would result if no injunction were issued. We

may reverse the district court’s order only if there was a clear abuse of discretion.

See, e.g., Carillon Importers, Ltd. v. Frank Pesce Int’l Group Ltd., 

,

1126 (11th Cir. 1997) (per curiam); Revette v. International Ass’n of Bridge,

Structural & Ornamental Iron Workers, 

, 893 (11th Cir. 1984) (“The

district court’s decision will not be reversed unless there is a clear abuse of


                                           20
discretion.”); Harris Corp. v. National Iranian Radio & Television, 

,

1354 (11th Cir. 1982). Because Plaintiffs still have not shown irreparable injury,

let alone that the district court clearly abused its discretion in finding no irreparable

injury on the record then before it, the denial of the preliminary injunction must be

affirmed on that basis alone.

      A district court may grant injunctive relief only if the moving party shows

that: (1) it has a substantial likelihood of success on the merits; (2) irreparable

injury will be suffered unless the injunction issues; (3) the threatened injury to the

movant outweighs whatever damage the proposed injunction may cause the

opposing party; and (4) if issued, the injunction would not be adverse to the public

interest. See McDonald’s Corp. v. Robertson, 

, 1306 (11th Cir.

1998) (citing All Care Nursing Serv., Inc. v. Bethesda Mem’l Hosp., Inc., 

, 1537 (11th Cir. 1989)). In this Circuit, “[a] preliminary injunction is an

extraordinary and drastic remedy not to be granted unless the movant clearly

established the ‘burden of persuasion’” as to each of the four prerequisites. 

omitted); see also Texas v. Seatrain Int’l, S.A., 

, 179




                                           21
(5th Cir. 1975) (grant of preliminary injunction “is the exception rather than the

rule,” and plaintiff must clearly carry the burden of persuasion).8

       A showing of irreparable injury is “‘the sine qua non of injunctive relief.’”

Northeastern Fla. Chapter of the Ass’n of Gen. Contractors v. City of Jacksonville,

, 1285 (11th Cir. 1990) (quoting Frejlach v. Butler, 

,

1027 (8th Cir. 1978)); see also Doran v. Salem Inn, Inc., 

, 931, 95 S.

Ct. 2561, 2568 (1975) (“The traditional standard for granting a preliminary

injunction requires the plaintiff to show that in the absence of its issuance he will

suffer irreparable injury.”); 

(plaintiff must show

“irreparable injury will be suffered”); Harris 

(concluding that district court “did not abuse its discretion in finding a substantial

likelihood of irreparable injury to [the plaintiff] absent an injunction”); Deerfield

Med. Ctr. v. City of Deerfield Beach, 

, 338 (5th Cir. 1981) (to be

granted a preliminary injunction plaintiffs must show “a substantial likelihood that

they would suffer irreparable injury”).9

       8
               The Eleventh Circuit, in Bonner v. City of Prichard, 

, 1209 (11th
Cir. 1981) (en banc), adopted as precedent decisions of the former Fifth Circuit rendered prior to
October 1, 1981.
       9
                We have occasionally spoken of requiring a substantial “threat” of irreparable
harm. See Haitian Refugee Ctr., Inc. v. Baker, 

, 1110 (11th Cir. 1991) (per
curiam). We do not read those opinions, however, as intending to relax the traditional standard -
- stated by the Supreme Court -- that a plaintiff must show either that he will suffer, or faces a
substantial likelihood that he will suffer, irreparable injury. See e.g., 

, 95

                                                 22
       Significantly, even if Plaintiffs establish a likelihood of success on the

merits, the absence of a substantial likelihood of irreparable injury would, standing

alone, make preliminary injunctive relief improper. See Snook v. Trust Co. of

Georgia Bank of Savannah, N.A., 

, 486 (11th Cir. 1990) (affirming

denial of preliminary injunction even though plaintiff established likelihood of

prevailing because plaintiff failed to meet burden of proving irreparable injury);

City of 

(reversing preliminary injunction based

solely on plaintiff’s failure to show irreparable injury); Flowers Indus. v. FTC, 

, 552 (11th Cir. 1988) (same); United States v. Lambert, 

,

540 (11th Cir. 1983) (affirming denial of preliminary injunction and stating that a

plaintiff’s “success in establishing a likelihood it will prevail on the merits does not

obviate the necessity to show irreparable harm”). As we have emphasized on

many occasions, the asserted irreparable injury “must be neither remote nor

speculative, but actual and imminent.” City of 

(quoting Tucker Anthony Realty Corop. v. Schlesinger, 

, 973 (2d Cir.

1989)); accord, Chacon v. Granata, 

, 925 (5th Cir. 1975) (“An




S. Ct. at 2568. In any event, the outcome is the same even using substantial “threat” as the
benchmark.

                                                23
injunction is appropriate only if the anticipated injury is imminent and

irreparable.”).

       At this time, Plaintiffs cannot demonstrate a threat of continuing irreparable

harm. At the moment, the candidate Plaintiffs (Governor Bush and Secretary

Cheney) are suffering no serious harm, let alone irreparable harm, because they

have been certified as the winners of Florida’s electoral votes notwithstanding the

inclusion of manually recounted ballots. Moreover, even if manual recounts were

to resume pursuant to a state court order,10 it is wholly speculative as to whether

the results of those recounts may eventually place Vice President Gore ahead. See

Church v. City of Huntsville, 

, 1337 (11th Cir. 1994) (“a party has

standing to seek injunctive relief only if the party alleges, and ultimately proves, a

real and immediate -- as opposed to a merely conjectural or hypothetical -- threat

of future injury”). At the moment it also remains speculative whether such an

order may be forthcoming. Indeed, the Florida Circuit Court in Leon County

considering the Vice President’s contest to the final certification has now denied

the Vice President’s request for resumption of manual recounts as part of its

broader judgment in the entire contest action. This development reinforces that the


       10
                This case involves discretionary recounts ordered by county canvassing boards.
A recount ordered by a state court under state law in a contest proceeding might be a
substantially different case, raising different legal issues.

                                               24
candidate Plaintiffs are suffering no serious harm. Moreover, as noted earlier, the

United States Supreme Court has now vacated the Florida Supreme Court’s

decision, raising still further doubt about the likelihood of any substantial injury.

      Nor are the voter Plaintiffs (all of whom allege that they voted for Governor

Bush and Secretary Cheney) suffering serious harm or facing imminent injury. No

voter Plaintiff claims that in this election he was prevented from registering to

vote, prevented from voting or prevented from voting for the candidate of his

choice. Nor does any voter claim that his vote was rejected or not counted. The

cases called to our attention by the parties that have warranted immediate

injunctive relief have involved these kind of circumstances. Even assuming

Plaintiffs can assert some kind of injury, they have not shown the kind of serious

and immediate injury that demands the extraordinary relief of a preliminary

injunction. Additionally, any alleged voter injury, unrelated to the outcome of the

election certified by the Florida Secretary of State, can be adequately remedied

later. And although these Plaintiffs assert that Florida’s existing manual recount

scheme must be invalidated for now and in the future, no one suggests that another

election implicating those procedures is underway or imminent.

      Plaintiffs’ other allegations of irreparable injuries to justify a preliminary

injunction are unconvincing. The candidate Plaintiffs contend that if the manual


                                          25
recounts are allowed to proceed, simply rejecting the results of those recounts after

the conclusion of this case will not repair the damage to the legitimacy of the Bush

Presidency caused by “broadcasting” the flawed results of a recount that put Vice

President Gore ahead. But the pertinent manual recounts have already been

concluded, and the results from those recounts widely publicized. Moreover, we

reject the contention that merely counting ballots gives rise to cognizable injury.

      Plaintiffs also contend that a violation of constitutional rights always

constitutes irreparable harm. Our case law has not gone that far, however. See,

e.g., City of 

(“No authority from the Supreme Court

or the Eleventh Circuit has been cited to us for the proposition that the irreparable

injury needed for a preliminary injunction can properly be presumed from a

substantially likely equal protection violation.”); Cunningham v. Adams, 

, 821-22 (11th Cir. 1987) (affirming denial of preliminary injunction in action

alleging Fourteenth Amendment violations, and finding no abuse of discretion in

district court’s rejection of the plaintiff’s argument that “irreparable injury will be

presumed where there has been a violation of substantive constitutional rights”);

see also Hohe v. Casey, 868 F 2d 69, 73 (3d Cir. 1989) (“Constitutional harm is

not necessarily synonymous with the irreparable harm necessary for issuance of a

preliminary injunction.”). The only areas of constitutional jurisprudence where we


                                           26
have said that an on-going violation may be presumed to cause irreparable injury

involve the right of privacy and certain First Amendment claims establishing an

imminent likelihood that pure speech will be chilled or prevented altogether. See

City of 

(citing Cate v. Oldham, 

,

1189 (11th Cir. 1983) and Deerfield Med. 

); see also 

(“[T]he assertion of First Amendment rights does not

automatically require a finding of irreparable injury, thus entitling a plaintiff to a

preliminary injunction if he shows a likelihood of success on the merits. Rather, . .

. it is the ‘direct penalization, as opposed to incidental inhibition, of First

Amendment rights [which] constitutes irreparable injury.’”) (quoting 

)). This is plainly not such a case. Cf. City of Mobile v. Bolden, 

, 76, 

, 1505 (1980) (constitutional right to vote, and the

principle of equality among voters, is conferred by the Equal Protection Clause of

the Fourteenth Amendment) (citing Reynolds v. Sims, 

, 

(1964)).

       Simply put, this principle is the law: we may reverse a district court’s

denial of a preliminary injunction if and only if we find that the court clearly




                                            27
abused its discretion.11 Our review, therefore, must be highly deferential. See,

e.g., Carillon 

(“The review of a district court’s

decision to grant or deny a preliminary injunction is extremely narrow in scope.”);

(“Appellate review of such a decision is very narrow.”).

As we have explained:

       This limited review is necessitated because the grant or denial of a
       preliminary injunction is almost always based on an abbreviated set of
       facts, requiring a delicate balancing of the probabilities of ultimate
       success at final hearing with the consequences of immediate
       irreparable injury which could possibly flow from the denial of
       preliminary relief. Weighing these considerations is the responsibility
       of the district court.

Line Motor Tours, Inc. v. City of New Orleans, 

,

296 (5th Cir. 1974)) (internal quotation marks and additional citation omitted).

The abuse-of-discretion standard, therefore, serves an important and vital purpose.

       In the case now before us, the district court expressly found that Plaintiffs

did not meet their burden of showing that immediate irreparable harm would result

if preliminary injunctive relief were not entered. It did so largely because the



       11
                The district court did not peg its finding of no irreparable harm to any incorrect
legal principle. On the contrary, the district court found that, on the record presented to it, no
irreparable harm had been proved. See Siegel v. LePore, 

(S.D. Fla. Nov. 13,
2000), at *8 (“In addition, we find Plaintiffs’ alleged injuries on an as-applied basis to be
speculative, and far from irreparable, at this stage in the electoral recount process . . . . The
inconclusive state of these recount processes coupled with their different factual postures
counsels against preliminary uniform injunctive relief at this time.”).

                                                28
limited record before it did not support Plaintiffs’ claims of harm. That critical

finding remains just as compelling, and the irreparability of the alleged injury is no

more established, today.

       Accordingly, we cannot say that the district court abused its broad discretion

in finding that Plaintiffs did not meet their burden of showing at least a substantial

likelihood of irreparable injury. Because proof of irreparable injury is an

indispensable prerequisite to a preliminary injunction, Plaintiffs are not entitled to

a preliminary injunction at this time; and the district court’s order must be

affirmed. See, e.g., Canal Authority v. Callaway, 

, 574 (5th Cir.

1974) (“[W]here no irreparable injury is alleged and proved, denial of a

preliminary injunction is appropriate.”). The Court does not at this time decide the

merits of Plaintiffs’ constitutional arguments.12

       AFFIRMED.




       12
                A decision by the Court on the likelihood of success would require the Court to
reach, in some sense, constitutional questions. Even for those of us who believe that the record
will not support a substantial likelihood of success on the merits, it is a “fundamental and
longstanding principle of judicial restraint . . . that courts avoid reaching constitutional questions
in advance of the necessity of deciding them.” Lyng v. Northwest Indian Cemetary Protective
Ass’n, 

, 445, 

, 1323 (1988). Given our view on the issue of injury,
no necessity is present here.


                                                  29
ANDERSON, Chief Judge, concurring specially:

      I join in the opinion of the Court. I subscribe to the entire opinion including,

inter alia, the holding and reasoning that Plaintiffs have failed to demonstrate

irreparable injury. Although I agree that judicial restraint cautions against the

court’s addressing constitutional issues unless necessary, it does not seem

inappropriate for me in light of the extensive dissents, to discuss my own views

about the likelihood of success on the merits of Plaintiffs’ constitutional issues.



                          I. LIKELIHOOD OF SUCCESS

        A. Standard of Review

      A party seeking a preliminary injunction must establish the following four

elements: (1) a substantial likelihood of success on the merits; (2) a substantial

threat of irreparable injury; (3) that its own injury outweighs the injury to the

nonmovant; and (4) that the injunction would not disserve the public interest. See

Haitian Refugee Center, Inc. v. Baker, 

, 1110 (11th Cir. 1991).

      I note at the outset that the scope of this review of the district court’s denial

of injunctive relief is limited to whether the district court abused its discretion. See

Sierra Club v. Georgia Power Co., 

, 1310 (11th Cir. 1999) (“The




                                          30
grant or denial of a preliminary injunction is a decision within the sound discretion

of the district court.”). The district court must exercise its discretion “in deciding

upon and delicately balancing the equities of the parties involved.” United States

v. Lambert, 

, 539 (11th Cir. 1983) (quoting Tatum v. Blackstock, 

, 401-02 (5th Cir. 1963)). In this review, I adopt the district court's

findings of fact unless clearly erroneous, but I review de novo jurisdictional issues

and issues of law. See SEC v. Unique Financial Concepts, Inc., 

,

1198 (11th Cir. 1999). “Because a preliminary injunction is ‘an extraordinary and

drastic remedy,’ its grant is the exception rather than the rule, and plaintiff must

clearly carry the burden of persuasion.” 

(quoting Texas

v. Seatrain Int’l, S.A., 

, 179 (5th Cir. 1975)).



      B. Constitutional Delegation of Authority to the States

      The Constitution delegates to the states the authority to establish and

implement procedures for selecting Presidential electors. The Constitution

provides that “[e]ach State shall appoint, in such Manner as the Legislature thereof

may direct, a Number of Electors. . . .” U.S. Const. art. II, § 1, cl. 2.1 The United

      1
             Article II, Section 1, Clause 2 of the Constitution provides:

             Each State shall appoint, in such Manner as the Legislature thereof
             may direct, a Number of Electors, equal to the whole Number of

                                              31
States Code provides that the timely appointment of Presidential electors pursuant

to state law is conclusive. See 3 U.S.C. § 5.2 The Supreme Court has confirmed

this broad delegation of power to the states, subject to the limitation that a state

may not exercise this power in a manner that violates specific provisions of the

Constitution of the United States. See McPherson v. Blacker, 

, 

(1892). See also Anderson v. Celebrezze, 

, 796 n.18, 

, 1573 n.18 (1983) (stating that “[t]he Constitution expressly delegates

authority to the States to regulate the election of Presidential electors,” but that this

does not give states the power to impose unconstitutional burdens on the right to

vote); Williams v. Rhodes, 

, 29, 

, 9 (1968) (stating that the



             Senators and Representatives to which the State may be entitled in
             the Congress: but no Senator or Representative, or Person holding
             an Office of Trust or Profit under the United States, shall be
             appointed an Elector.
      2
             3 U.S.C. § 5 provides:

             If any State shall have provided, by laws enacted prior to the day
             fixed for the appointment of the electors, for its final determination
             of any controversy or contest concerning the appointment of all or
             any of the electors of such State, by judicial or other methods or
             procedures, and such determination shall have been made at least
             six days before the time fixed for the meeting of the electors, such
             determination made pursuant to such law so existing on said day,
             and made at least six days prior to said time of meeting of the
             electors, shall be conclusive, and shall govern in the counting of
             the electoral votes as provided in the Constitution, and as
             hereinafter regulated, so far as the ascertainment of the electors
             appointed by such State is concerned.

                                              32
extensive powers granted to the states to pass laws regulating the selection of

electors is subject to the limitation that these powers “may not be exercised in a

way that violates other specific provisions of the Constitution”); Duncan v.

Poythress, 

, 699 (5th Cir. Unit B 1981) (stating that while the

Constitution provides no guarantee against innocent irregularities in the

administration of state elections, in rare situations where state election procedures

undermine the basic fairness and integrity of the democratic system, a

constitutional violation exists).

      While the unconstitutional exercise of state power is prohibited, the Supreme

Court has recognized that a state’s regulations governing the electoral process will

inevitably impact, in a manner that may burden or restrict, its citizens’ exercise of

their right to vote. See Burdick v. Takushi, 

, 433, 

,

2063 (1992); 

, 103 S. Ct. at 1570. The Supreme Court

has acknowledged that such restrictions are necessary “if [elections] are to be fair

and honest . . . .” Storer v. Brown, 

, 730, 

, 1279 (1974).

In the context of a Presidential election, the Supreme Court has confirmed that a

state’s interest in conducting an orderly and fair election is “generally sufficient to

justify reasonable, nondiscriminatory restrictions.” 

,

103 S. Ct. at 1570.


                                           33
       To preserve the essential balance between states’ power to govern elections

and voters’ constitutional rights, the Supreme Court has developed a flexible

standard to use in assessing constitutional challenges to a state’s regulation of

elections. The Supreme Court described this standard succinctly in Burdick v.

Takushi, 

, 

(1992):

       [W]hen [First and Fourteenth Amendment] rights are subjected to
       severe restrictions, the regulation must be narrowly drawn to advance
       a state interest of compelling importance. But when a state election
       law provision imposes only reasonable, nondiscriminatory restrictions
       upon the First and Fourteenth Amendment rights of voters, the State's
       important regulatory interests are generally sufficient to justify the
       restrictions.

112 S. Ct. at 2063 (internal quotation marks and citations omitted).

       Our Circuit’s precedent addressing constitutional challenges to state election

processes has reflected comparable deference to state regulation of elections. We

have held that the scope of voters’ exercise of their right to vote is restricted in the

state election context by considerations of “[t]he functional structure embodied in

the Constitution, the nature of the federal court system and the limitations inherent

in the concepts both of limited federal jurisdiction and the remedy afforded by

section 1983 . . . .” Gamza v. Aguirre, 

, 452-53 (5th Cir. 1980);3 see

       3
               The Eleventh Circuit, in the en banc decision Bonner v. City of Prichard, 

, 1209 (11th Cir. 1981), adopted as precedent decisions of the former Fifth Circuit
rendered prior to October 1, 1981.

                                               34
also Curry v. Baker, 

, 1314 (11th Cir. 1986) (“Although federal

courts closely scrutinize state laws whose very design infringes on the rights of

voters, federal courts will not intervene to examine the validity of individual

ballots or supervise the administrative details of a local election. Only in

extraordinary circumstances will a challenge to a state election rise to the level of a

constitutional deprivation.”) (internal citation omitted); 

.

We have emphasized that federal court intervention is not appropriate in “garden

variety” disputes over election irregularities, but that redress of alleged

constitutional injuries is appropriate if “the election process itself reaches the point

of patent and fundamental unfairness . . . .” Roe v. Alabama, 

, 580

(11th Cir. 1995) (quoting 

).

      These principles guide my analysis of the Plaintiffs’ likelihood of success in

their constitutional challenges to Florida’s election laws. The Plaintiffs argue on

appeal that the district court erred by refusing to enjoin the post-election manual

recounting of ballots in four Florida counties, because they allege that these

recounts violate the constitutional rights of the state’s voters. The Plaintiffs

advance two arguments, an equal protection argument and a substantive due

process argument. I discuss each in turn and cannot conclude based on the sparse

record before this Court that the district court abused its discretion in denying the


                                           35
Plaintiffs’ motion for preliminary injunctive relief. I believe that the Plaintiffs

have failed to establish with sufficient clarity a severe burden or impact on the

rights of Florida voters. See Northeastern Fla. Chapter of Ass’n of Gen.

Contractors of Am. v. City of Jacksonville, Fla., 

, 1285

(“Preliminary injunctions of legislative enactments – because they interfere with

the democratic process and lack the safeguards against abuse or error that come

with a full trial on the merits – must be granted reluctantly and only upon a clear

showing that the injunction before trial is definitely demanded by the

Constitution.”). Rather, the alleged impacts are reasonable and are justified by

their furtherance of the state’s important regulatory interests in ensuring accurate

and complete election results. Accordingly, the Plaintiffs fail to make the requisite

showing of a substantial likelihood of success on the merits of their claims, and the

district court thus did not abuse its discretion in refusing to grant a preliminary

injunction.



      C. Equal Protection Claim

      The Plaintiffs claim that Florida’s statutory manual recount provision as

applied in this case violates the rights of all voters to be treated equally because the

manual recounts are limited to four heavily Democratic counties. The crux of the


                                           36
Plaintiffs’ equal protection argument is that some ballots in counties not

conducting manual recounts will not be counted despite the voters’ intent, because

the ballots are not machine-legible, while identical ballots in counties conducting

manual recounts will be counted.4 The argument boils down to this: there is

greater certainty in some counties than in others that every voter’s intent is

effectuated. I conclude that this argument fails to state a violation of the equal

protection clause.

Under the framework developed by the Supreme Court, when a state election law

severely burdens voters’ constitutional rights, it must be narrowly tailored to serve

a compelling interest; however, lesser burdens trigger less exacting review, and a

state's important regulatory interests are typically enough to justify reasonable,

nondiscriminatory restrictions. Timmons v. Twin Cities Area New Party, 

, 358, 

, 1370 (1997) (citing Burdick, 504 U.S. at 

).




       4
                For example, the Plaintiffs point to the fact that some ballots that are imperfectly
punched will be counted in at least one manual-recount county, while an identical ballot would
not be machine-counted, and thus would not be counted in a county not conducting manual
recounts. In Florida Democratic Party v. Palm Beach County Canvassing Bd., No. 00-11078
(Fla. Palm Beach Co. Cir. Ct., Nov. 22, 2000), Circuit Judge Jorge Labarga held that the Palm
Beach County Canvassing Board could not follow a policy of per se exclusion of any ballot, but
that each ballot must be considered in light of the totality of circumstances and that where the
voter’s intent could be fairly and satisfactorily ascertained, that intent should be given effect.

                                                 37
      The first step in this analysis, then, is to determine whether Florida’s manual

recount provision severely burdens the rights of those voters in counties not

conducting manual recounts, because their ballots receive less scrutiny than those

of voters in counties conducting manual recounts. I believe that it does not.

      In reaching this conclusion, I note first that the Plaintiffs could not credibly

argue that the mere availability of manual recounts in some counties, but not in

others, places an inequitable burden on their right to vote. Taking this argument to

its logical conclusion would lead to the untenable position that the method of

casting and counting votes would have to be identical in all states and in every

county of each state. For example, if one state counted ballots by hand while

another counted by machine, there inevitably would be some ballots in the manual-

recount state that were counted notwithstanding the fact that the identical ballot in

the machine-count state would not be counted. The only apparent way to avoid

this disparity would be for every state to use an identical method of counting. No

court has held that the mere use of different methods of counting ballots constitutes

an equal protection violation. Such a position would be manifestly inconsistent

with the command of Article II, Section 1, Clause 2, that Presidential electors are

to be appointed in the manner directed by each state legislature. Accord 

n.18; Williams, 

at 29, 89 S.


                                          38
Ct. at 9. Moreover, there is nothing uncommon or unusual in a state statute

permitting and regulating recounts. The Supreme Court has acknowledged that

recount procedures are a common and practical means of ensuring fair and accurate

election results. See Roudebush v. Hartke, 

, 25, 

, 810-11

(1972). In Roudebush, the Supreme Court noted with approval that Indiana, along

with many other states, had made vote recounts available to guard against

irregularity or error in the tabulation of votes, and the Court stated that such

recount provisions are “within the ambit of the broad powers delegated to the

States by Art. I, § 4.” 

attempt to bolster their treat-every-ballot-alike argument by

suggesting that partisan influences have tainted the operation of Florida’s manual

recount procedures in this case. The Plaintiffs allege that partisan influences have

intruded in two ways: (1) that the Florida Democratic Party selectively requested

manual recounts in a few populous counties that indicated significantly more Gore

votes than Bush votes in order to gain political advantage; and (2) that the lack of

statutory standards guiding the canvassing boards’ decisions to grant manual

recounts permitted partisan influences to influence those decisions.

      The statute itself provides several safeguards against the kind of abuses

suggested by the Plaintiffs. Pursuant to the statute, a candidate or party can only


                                          39
request, not mandate, a manual recount, and the decision is made by a county

canvassing board composed of three statutorily designated officials, including a

county court judge, none of whom are active participants in the candidacy of any

candidate. See Fla. Stat. §102.141. The canvassing board’s discretion is not

standardless, but rather is guided by a statutory purpose of determining the

intention of voters and correcting “an error in the vote tabulation which could

affect the outcome of the election.” 

law further provides

that canvassing board meetings must be open to the public. See 

a canvassing board’s decision to grant or deny a manual recount is subject

to judicial review. See Broward County Canvassing Bd. v. Hogan, 

(Fla. 4th DCA 1992). Once a manual recount has been authorized, statutory

safeguards are provided to ensure that the results are fair and accurate, and

untainted by partisan manipulation.5 The combination of the composition of the

canvassing boards, the statutory standards guiding their discretion, and the

availability of judicial review provides meaningful checks on the exercise of

discretion by canvassing boards, and reduces the risk of partisan influences tainting

the process.




      5
               These provisions are described infra at 27.

                                               40
       Especially with respect to the Plaintiffs’ concern that political candidates can

select particular counties, but also relevant to the Plaintiffs’ concern about the

discretion of canvassing boards, any candidate has an equal right and an equal

opportunity to request manual recounts in any county. See Fla. Stat.

§102.166(4)(a). The Florida statute clearly placed the political parties in this case

on notice of this right and opportunity.6 Other safeguards relevant to both of the

Plaintiffs’ concerns include: the fact that both the request and decision must be

guided by the statutory standards of determining voters’ intent and correcting error

which could affect the outcome, see 

the fact that the

decision is made, not by an ad hoc board, but by an existing board composed of

statutorily designated officials, including a county judge, who are not active

participants in the candidacy of any candidate, see 

fact that

canvassing board meetings and any manual recounts must be open to the public,

see 

286.0105(1); and the fact that a canvassing board’s decision




       6
               The Plaintiffs do not claim to have lacked timely actual notice that manual
recounts were requested by the Florida Democratic Party in the four counties at issue in this
case. Indeed, the record reveals that the manual recounts were requested on Thursday,
November 9, 2000, and that the Republican Party representatives in Miami-Dade County and
Broward County filed responses opposing the manual recounts on the same day, well within the
72-hour statutory deadline for making requests in other counties, i.e., midnight on Friday,
November 10, 2000.

                                              41
is subject to judicial review. See Broward County Canvassing 

.

       In assessing the severity of the impact on the right to vote, the scarcity of

evidence in the instant record is also significant. On the sparse record in this

appeal, I cannot conclude that Plaintiffs have made the showing requisite for relief

at this preliminary judgment stage. I cannot conclude that Plaintiffs have

established actual partisan manipulation or fraud. The Plaintiffs do not claim that

any canvassing board unfairly refused to conduct a manual recount. They argue

on appeal that canvassing board officials may have a strong personal interest in the

outcome of the election; however, such a vague allegation of a possible

manipulative or discriminatory motive does not rise to the level of severity

required to merit strict scrutiny of the Plaintiffs’ equal protection claims.

       Applying a reasonableness standard, therefore, to judge the constitutionality

of Florida’s manual recount provision, see Burdick, 504 U.S. at 

, I would conclude that the state has sufficiently strong interests to justify the

manual recounting of votes within the established statutory framework. As

provided by the plain language of the statute, the manual recount provisions are

designed to remedy errors in the vote tabulation “which could affect the outcome

of the election” and to arrive at the true “voters’ intent.” Fla. Stat. §§ 102.166(5),


                                           42
(7)(b). Florida has a strong interest in ensuring that the results of an election

accurately reflect the intent of its voters. A manual recount provision as a

supplement to mechanical counting provides a valid method to discern the will of

voters, where doubt is raised as to the validity of a machine count.

      With respect to the county-by-county differences which the Plaintiffs allege

violate their equal protection rights, the state legislature expressly delegated to

each county the decision-making authority regarding whether and how to conduct

manual recounts, within the context of the statutory standard and procedures, and

subject to the statutory restraints and safeguards, all as discussed above. There are

strong and obvious state interests, both practical and administrative, supporting

Florida’s decentralization of this function to the county level. I cannot conclude

that the Constitution would require that any manual recount be conducted

statewide.7 A statewide requirement would impose a very significant

administrative burden, and an often unnecessary one, as there are innumerable

circumstances in which a manual recount would be warranted only in a single

county. The decision to decentralize is both reasonable and nondiscriminatory.

Indeed, in doing so, Florida is merely exercising the power expressly delegated in

Art. II, § 1, cl. 2, and it is exercising that power by following the same pattern of


      7
             Many states decentralize this process without requiring statewide recounts.

                                             43
federalism reflected in the Constitution itself. Further, with respect to Florida’s

designation of candidates and parties as the entities authorized to request a manual

recount, this would seem to be a natural and reasonable choice. They are the ones

most likely to be alert to problems with a machine tally.8 Permitting only

candidates, political parties and committees, but not individual voters, to request

recounts is a common practice among the states.9 I believe that Florida’s interest

in the efficient administration of elections is sufficient to justify its decision to

provide for the implementation of its manual recount provision on a decentralized,

localized basis.

       My conclusion that the deprivation of rights alleged by the Plaintiffs does

not merit strict scrutiny is supported by the contrast between this case and cases in


       8
               There are obvious and powerful reasons not to permit individual voters to trigger
a manual recount; their interests are adequately represented by the candidates and parties, and
individual voter participation would likely lead to administrative nightmares.
       9
                Many states permit a recount to be triggered only upon the request of a candidate,
political party and/or a political committee, but not upon the appeal of an individual voter. See
e.g., ARK. CODE ANN. § 7-5-319 (candidate); COLO. REV. STAT. § 1-10.5-106 (candidate);
IDAHO CODE § 34-2301 (candidate); IND. CODE ANN. § 3-12-11-1 (candidate or political party’s
county chairperson); IOWA CODE § 50.48 (candidate); LA. REV. STAT. § 1451 3-12-11-1
(candidate or political party); ME. REV. STAT. ANN. tit. 21-A, § 737-A (losing candidate); MD.
CODE. ANN., Elections § 12-101 (losing candidate); MO. REV. STAT. § 115.553 (candidate); N.J.
STAT. ANN. § 19:28-1 (candidate); OKLA. STAT. ANN. tit. 26, § 8-111 (candidate); OR. REV.
STAT. § 258.161 (candidate, political party or county clerk); TEX. ELEC. CODE ANN. § 212.023
(candidate); VA. CODE ANN. § 24.2-800 (candidate); WASH. REV. CODE § 29.64.010 (candidate
or political party); W. VA. CODE § 3-6-9 (candidate); WIS. STAT. ANN. § 9.01 (candidate); WYO.
STAT. ANN. §§ 22-16-109 & 110 (losing candidate or county canvassing board).


                                               44
which the Supreme Court has applied strict scrutiny: those cases have involved a

complete deprivation of the right to vote or a differential weighting of votes based

on impermissible classifications. In O'Brien v. Skinner, 

, 

(1974), the Supreme Court applied strict scrutiny to invalidate a state electoral

scheme that completely denied individuals the right to vote based on arbitrary

distinctions. See 

94 S. Ct. at 745 (invalidating a New York absentee

ballot statute that operated to deny otherwise eligible prisoners the right to vote,

based solely on the prisoner’s county of incarceration). The reasoning of O’Brien

does not apply here, however, as the Plaintiffs do not assert that they have been

denied the right to vote or to have their vote counted; rather, they assert that their

votes have received unequal treatment in the post-election counting process.

      In the one-person, one-vote cases, the Supreme Court has held that states’

weighted voting systems, which arbitrarily and systematically granted a lesser

voice to some voters based on their geographic location, violated the voters’ right

to equal protection. See Moore v. Ogilvie, 

, 819, 

, 1496

(1969); Reynolds v. Sims, 

, 563, 

, 1382 (1964); Roman

v. Sincock, 

, 709-10, 

, 1458 (1964); Gray v. Sanders,

, 379-80, 

, 808 (1963). The facts presented by those

cases are different from the facts here, however. The ballots of voters in Florida


                                           45
counties conducting manual recounts are not receiving greater weight than are

votes elsewhere in Florida. The additional scrutiny of ballots afforded under

Florida’s manual recount procedures does not weigh the value of votes; it merely

verifies the count. Unlike the foregoing cases which have held that the systematic

unequal weighting of votes is unconstitutional, here there is no automatic,

inevitable, or systematic granting of greater weight to the choices of any voter or

class of voters.

      This conclusion is further supported by the fact that the Constitution itself,

in Article II, § 1, cl. 2, contemplates that each state will direct its own (potentially

different) method of appointing Presidential electors. Within each state, federal

courts have acknowledged that diverse methods of voting may be employed. See

Hendon v. North Carolina State Bd. of Elections, 

, 181 (4th Cir.

1983) (citing Carrington v. Rash, 

, 91, 

, 777 (1965)). The

Supreme Court has confirmed that recounts are well within the ambit of a state’s

authority, see 

, 92 S. Ct. at 810-11, and the manual

counting of ballots has been commonplace historically. In the light of the

constitutional delegation of authority to the states, confirmed by case law, I believe

that manual recounts in some counties, while identical ballots in other counties are




                                           46
counted and recounted only by machine, and the inevitable variances that this will

produce, do not in themselves severely burden the right to vote.

      Florida’s statutory manual recount provision does not limit the Plaintiffs’

ability to cast their votes, nor significantly undermine the certainty that their votes

will be counted. While the statute permits enhanced scrutiny to be given to ballots

in counties where the candidates or parties have requested and the canvassing

boards have authorized a manual recount, the statute provides ample safeguards to

ensure that the decision to conduct manual recounts, and the manner in which the

recounts are conducted, is open, fair, and accurate. While there is some potential

for the statute to be manipulated by those with partisan interests, the sparse record

here does not in my opinion establish a clear showing of partisan fraud or

misconduct that would be required in this preliminary injunction stage. Nor does

the record reveal concrete evidence of substantial or uncorrected errors in manual

counting that have generated erroneous vote tabulations. Therefore, I conclude

that at this stage the Plaintiffs have failed to sufficiently demonstrate a severe

impact on their equal protection rights, so that heightened scrutiny of Florida’s

manual recounts is not merited. See Burdick, 504 U.S. at 

.

I believe that Florida’s important regulatory interests are sufficient to justify the




                                           47
reasonable, nondiscriminatory impact the Plaintiffs have shown to their voting

rights. 10




       10
                Much of Plaintiffs’ argument focuses on the assumption that a candidate’s self-
interest in selecting counties likely to produce more undervotes for him introduces an invidious
and unconstitutional discrimination. My discussion in text reveals the weaknesses which I see in
this argument. In summary, a candidate can only request, not mandate, a recount. The decision
is made by a county canvassing board with several built-in statutory safeguards – including the
composition of the board (preordained county officials, including a county judge, none of whom
can be active in any candidacy), statutory standards to guide the board’s discretion (relating to
the intention of voters and an error in the mechanical tabulation), and the fact that the board’s
meetings must be open and are subject to public scrutiny and court review. Strong state interests
support county-level decentralization; mandating statewide recounts in every instance would
impose severe administrative burdens. Rather than invidious discrimination, I suggest that the
statute contemplates that candidates or parties are the appropriate entities to make such request
because their self-interest prompts them to be alert to problems in a machine tally which might
make a recount appropriate. Like the statutory contemplation, a requesting candidate would also
contemplate that any opposing candidate would be alert to problems in counties favorable to
him. There is an equal right and an equal opportunity in that respect, as stated clearly in the
statute. Nothing in the statute suggests that only a candidate losing in a particular county can
make a request in that county; the statutory standard is an error in the vote tabulation that could
affect the outcome of the election. Nothing suggests that the statute means the “outcome” in that
particular county; rather, the statute says “outcome of the election” itself. Nothing suggests that
a canvassing board may not consider the potential effects of other recounts in its own decision to
authorize a manual recount. Nothing prevents a candidate or a party requesting a manual recount
from notifying a canvassing board of the fact that other counties may authorize or have
authorized manual recounts which may change the vote totals. As applied here, the record
before this Court does not reveal a motive by the Democratic Party to deprive the Republican
Party of its opportunity to request manual recounts. The requests challenged here were not
strategically delayed; rather, the requests were made on November 9, 2000, more than 24 hours
before the 72-hour deadline, leaving ample time for the opposing candidate to make requests in
response. Permitting candidates to request recounts is a reasonable way to promote the state’s
legitimate and strong interest in ensuring a full and accurate count of ballots where the voters’
intention can be fairly and satisfactorily ascertained, especially so when any request is
circumscribed by the statutory safeguards provided here. Indeed, many states permit candidates
or political parties to request such recounts; if Plaintiffs’ arguments prevail, the status of many
state election laws, and many elections, would be constitutionally suspect.

                                                48
      For the foregoing reasons, I would conclude that the Plaintiffs have failed to

prove a likelihood of success on the merits of their equal protection claim.



      D. Substantive Due Process Claim

      The Plaintiffs argue that the counting procedures used by counties

conducting manual recounts are arbitrary and rife with irregularities that constitute

a denial of due process. Specifically, the Plaintiffs allege that the standards used to

decide which marks or punches on a ballot are counted as votes differ from county

to county and further that these standards have been changed mid-count in one

county. I believe that the record evidence fails to establish that the alleged

unreliability or inaccuracy of manual recounting rises to the level of a severe

burden on the right to vote.

      In Curry v. Baker, 

(11th Cir.1986), we refused to find a

constitutional violation in a state gubernatorial candidate’s argument that election

officials had miscounted ballots. See 

We stated that, in order for the

election process to reach the point of “patent and fundamental unfairness,” the

“situation must go well beyond the ordinary dispute over the counting and marking

of ballots.” 

(quoting Duncan v. Poythress, 

, 703 (5th Cir.

1981)). In Curry, we emphasized that a federally protected right is implicated only


                                          49
“where the entire election process – including as part thereof the state’s

administrative and judicial corrective process – fails on its face to afford

fundamental fairness.’” 

(quoting 

).

      These principles resonate in numerous federal cases holding that disputes

over human or mechanical errors in ballot counting, absent a showing of

intentional manipulation, do not rise to the level of a federal constitutional

violation. See Gold v. Feinberg, 

, 802 (2d Cir.1996) (holding that

human errors resulting in the miscounting of votes, the presence of ineligible

candidates on ballot, and the late delivery of voting machines to some polling

places, did not rise to the level of a constitutional violation because adequate state

remedies existed); Bodine v. Elkhart County Elec. Bd., 

, 1272 (7th

Cir.1986) (concluding that voter-plaintiffs failed to state a constitutional claim

where mechanical and human error resulted in errors in counting votes, but where

there was no allegation that the defendants acted with intent to undermine the

election); Gamza v. Aguirre, 

, 454 (5th Cir.1980) (concluding that

allegations of negligent vote counting did not state a constitutional claim);

Hennings v. Grafton, 

, 864-65 (7th Cir. 1975) (stating that while due

process rights would be implicated on a showing of “willful conduct which

undermines the organic processes by which candidates are elected,” no


                                          50
constitutional guarantee protects against inadvertent errors or irregularities;

instead, state law must provide the remedy); Pettengil v. Putnam County R-1 Sch.

Dist., 

, 123 (8th Cir. 1973) (refusing to intervene in a controversy

over whether illegally cast ballots were mistakenly counted by local election

officials); Powell v. Power, 

, 88 (2d Cir.1970) (concluding that no

federal remedy existed for human error resulting in non-party members mistakenly

allowed to vote in congressional primary).

       Despite these precedents, in reliance on our opinion in Roe v. Alabama, 

(11th Cir. 1995), the Plaintiffs argue that post-election changes in ballot-

counting procedures are fundamentally unfair and thus rise above the level of

“garden variety” election disputes to constitute a substantive due process violation.

In Roe, a state court order would have forced Alabama election officials to count

absentee ballots that had been rejected pursuant to a state statute and in accordance

with previous state practice.11 See 

We concluded that such a post-

election departure from the state’s statutory mandate and previous election practice

would undermine the fundamental fairness of the election. See 

As we

explained in Roe, our decision was based on the fact that such a change would

       11
              The applicable Alabama statute required absentee voters to send their ballots
accompanied by an affidavit which was either notarized or signed by two witnesses. It was
undisputed in Roe that the previous practice in Alabama, as mandated by statute, had been to
disregard absentee ballots that were mailed in without the required affidavit.

                                              51
disenfranchise those people who would have voted absentee, but were deterred

from doing so by the burden of complying with the statutory requirements for

completing absentee ballots. See id.; see also Griffin v. Burns, 

,

1078-79 (1st Cir.1978) (finding fundamental unfairness in a state’s unforeseeable

invalidation of absentee ballots which resulted in the disqualification of ten percent

of the total votes cast in a primary election). Cf. Bennett v. Yoshina, 

, 1227 (9th Cir. 1998) (rejecting a substantive due process challenge to

Hawaii’s decision to count blank ballots as votes against convening a state

constitutional convention, where there was no suggestion that voters in favor of the

constitutional convention had relied on the state’s previous practice of disregarding

blank ballots in a constitutional convention vote); Partido Nuevo Progresista v.

Barreto Perez, 

, 828 (1st Cir.1980) (holding that the Supreme Court of

Puerto Rico’s decision to count mismarked ballots where the intent of the voter

was clear did not violate due process, because here could have been no detrimental

reliance by any voter on the assumed invalidity of mismarked ballots).

      Our decision in Roe is distinguishable from the instant case in at least two

significant ways. First, at this stage of the litigation, the record does not establish

the requisite showing of a significant post-election departure from Florida’s




                                           52
manual recount practices before this election.12 Unlike the circumstance in Roe,

where the post-election change of procedure violated a statutory mandate, in this

case Florida’s statute expressly provides for manual recounts and establishes the

voter-intent standard to be used in conducting the recounts. While the Plaintiffs

have alleged that various canvassing boards have used different standards or have

changed their standards with respect to the analysis of particular physical attributes

of ballots, the Plaintiffs have not alleged that any board has departed from a good-

faith attempt to determine the voters’ intent. Thus, the Plaintiffs have failed to

show any departure from statutory mandate or from a pre-election procedure that

rises to the level of fundamental unfairness.




       12
               There remain in the present record sufficient disputed facts as to any significant
change of practice that I cannot conclude with the necessary clarity that any significant number
of votes was counted pursuant to a changed practice.

        My opinion would not change, even assuming that there may have been a change of
practice -- i.e., from counting only partially detached chads to counting ballots that were not
partially detached, but under the totality of the circumstances the intention of the voter could be
fairly and satisfactorily ascertained. See Florida Democratic Party v. Palm Beach County
Canvassing Board, No. 00-11078 (Fla. Palm Beach Co. Cir. Ct., Nov. 22, 2000). The statutory
standard – i.e., the determination of the voter’s intent within the Canvassing Board’s discretion,
subject to judicial review – has remained constant. Even assuming some change with respect to
the discretionary interpretation of particular physical attributes of ballots, there is no evidence in
this record that a practice has been implemented which is inconsistent with the plain statutory
standard, as was the case in Roe.



                                                  53
      Second, Roe is distinguishable because this record does not show

detrimental reliance by voters. In this case, there is no evidence to suggest that a

voter in any county failed to adequately punch or mark a ballot in reliance on a

belief that a vote in some other county would not be counted if a ballot were only

partially punched, i.e., in reliance on an anticipated lack of a manual recount.

Indeed, it would be manifestly unreasonable to suggest such reliance. Quite the

contrary, the statute expressly puts voters on notice of the possibility of a manual

recount. As a corollary to this obvious lack of reliance, this case involves no

disenfranchisement of voters, unlike the disenfranchisement in Roe of people who

failed to vote absentee because of the inconvenience imposed by the statutory

notarization/witness requirement.

      In addition to the lack of detrimental reliance by voters on Florida’s

previously established election procedures, the record before us is not sufficient to

conclude that the district court was clearly erroneous in declining to find

purposeful, systematic discrimination in the manual recounting procedures

employed. In fact, the manual recount statute mandates procedures to ensure

fairness and accuracy in the conduct of any manual recount. Any manual recount

must include at least one percent of the total votes cast and at least three precincts.

See Fla.Stat. §102.166(4)(d). A manual recount must be open to the public, and


                                           54
counting teams must have at least two members who are, when possible, members

of at least two political parties. See 

(7)(a). Determination of the

voter’s intent is the statutory standard. See 

Florida law

provides that the decisions and actions of county canvassing boards are subject to

judicial review, not only with respect to their decision on whether to conduct a

manual recount, as discussed above, but also with respect to the general validity of

their counting procedures. See Beckstrom v. Volusia County Canvassing Bd., 

(Fla. 1998); Boardman v. Esteva, 

(Fla. 1975). State

courts have authority to review election challenges, whether brought by a candidate

or party as a protest under Fla. Stat. § 102.166, or brought by a candidate, qualified

voter, or taxpayer as a contest under Fla. Stat. § 102.168. A court may void a

challenged election result based on a finding of substantial irregularities that raise a

reasonable doubt as to whether the election results express the will of the voters.

See 

. These statutory safeguards are calculated to

protect against the risk of the abuses that the Plaintiffs fear. In this case, the

Plaintiffs have failed to persuade me that these safeguards were ineffective. The

district court found, based on the evidence stipulated at the hearing, that “no

evidence has been demonstrated that these recounts have generated erroneous




                                           55
tabulations.” Based on my review of the evidence, I cannot conclude that this

finding was clearly erroneous.13

       Under these circumstances, I am not persuaded that Plaintiffs have made the

requisite showing of a severe impact on their right to vote. On this record, they

have failed to prove that this case rises above a “garden variety” dispute over the

counting of ballots to reach the level of fundamental unfairness. Because Florida’s

strong state interests, as discussed above, justify a decentralized vote-counting

process, I conclude that the Plaintiffs fail to show a likelihood of success in

proving their substantive due process claim. Because the Plaintiffs fail to show a

substantial likelihood of success on the merits of their constitutional claims, they

fail to demonstrate that the district court abused its discretion in denying the

motion for preliminary injunctive relief.14

       13
                While this record reveals isolated observations of acts from which a fact finder
might infer an effort to dislodge a chad, I cannot conclude that the district court was clearly
erroneous. I see little or no evidence of actual intent to dislodge a chad, or that ballots were
counted when they were not already partially dislodged. I also note that the presence of
Republican and Democratic observers, in addition to the intense public scrutiny, helps to ensure
the integrity of the process.
       14
                 The Plaintiffs also allege a First Amendment violation, essentially arguing that
Florida’s statute grants county canvassing board members unlimited discretion to impinge on
voter’s rights through arbitrary decisions regarding whether to conduct manual recounts. In
another articulation of their argument, the Plaintiffs argue that the canvassing board’s decisions
are governed by no standards. The Plaintiffs argue that the right to vote is protected by the First
Amendment. See Williams v. Rhodes, 

, 30-31, 

, 10 (1968) (stating that the
right to vote is entitled to similar constitutional protections as the First Amendment right of
association); Carrington v. Rash, 

, 

(1965) (holding that the right to vote
is a fundamental right protected by the Equal Protection Clause). They argue that the

                                                56
                                      II. CONCLUSION

       For the foregoing reasons, I would conclude that Plaintiffs have failed to

establish a substantial likelihood of success warranting federal court intervention

on either equal protection or due process grounds. The conclusion of a majority of

this court that the district court did not abuse its discretion in concluding that

Plaintiffs had failed to establish a substantial likelihood of irreparable harm, and

my conclusion in this concurring opinion that Plaintiffs have failed to establish a



Constitution prohibits the overbroad exercise of discretion by officials over First Amendment
rights and, therefore, that Florida’s statute violates the Constitution. See Forsyth County v.
Nationalist Movement, 

, 129-30, 

, 2401 (1992) (stating that an
“impermissible risk of suppression of ideas” exists where “an ordinance . . . delegates overly
broad discretion to the decisionmaker”).

        Contrary to the Plaintiffs’ argument, cases implicating First Amendment standards have
involved claims that pure speech might be chilled or prevented altogether. See Forsyth 

, 112 S. Ct. at 2401; City of 

(citing Cate v.
Oldham, 

, 1189 (11th Cir. 1983) and Deerfield Med. 

). This
is not such a case. Instead, the constitutional right to vote, and the principle of equality among
voters, is protected under the Equal Protection Clause of the Fourteenth Amendment. See City
of Mobile v. Bolden, 

, 76, 

, 1505 (1980)(citing Reynolds v. Sims, 

, 

(1964)). I conclude that the Florida manual recount statute satisfies
equal protection because it contains constitutionally sufficient standards to constrain the
discretion of canvassing board officials. I describe the statutory and judicially imposed
constraints on these officials’ discretion supra at 11-13. Based on these constraints, I conclude
that the challenged provisions of Florida election law do not permit officials to exercise overly
broad discretion over voters’ rights.

         I thus conclude that the Plaintiffs have failed to show a severe burden on their voting
rights; instead, the statutory safeguards ensure only reasonable, nondiscriminatory burdens. I
conclude that Florida’s important interests in ensuring accurate, complete election results, and
the state’s strong interest in its established system of decentralized administration of elections,
justify the reasonable, nondiscriminatory impact of Florida’s manual recount statute on voters’
rights. The Plaintiffs thus fail to establish a First Amendment violation.

                                                 57
substantial likelihood of success, are supported by the lack of evidentiary

development in this case and by the preliminary injunction posture of the case.

Especially significant in our consideration of this case is the sparse record on

which Plaintiffs have chosen to proceed.15 The record before us is without the

benefit of discovery or evidentiary hearing. Where, as here, a party has chosen to

forego an evidentiary hearing, it is not entitled to have its disputed representations

accepted as true. See Charette v. Town of Oyster Bay, 

, 755 (2d Cir.

1998). The scant evidence in this record has not been tested by the adversarial

process, notwithstanding the fact that material and relevant facts are in dispute. In

addition, the preliminary injunction posture of this case cautions against federal

court intervention. See Northeastern Fla. Chapter of Ass’n of Gen. Contractors of

Am. v. City of Jacksonville, Fla., 

, 1285 (“Preliminary injunctions of

legislative enactments – because they interfere with the democratic process and

lack the safeguards against abuse or error that come with a full trial on the merits –

must be granted reluctantly and only upon a clear showing that the injunction

before trial is definitely demanded by the Constitution.”). I cannot conclude that

Plaintiffs on this sparse record have demonstrated a clear showing, either with


       15
                We noted in our November 27, 2000, Order that Plaintiffs’ motion for permanent
injunctive relief has remained pending in the district court, and that court has remained available
for further factual development.

                                                58
respect to the likelihood of success or irreparable injury, and thus have not made a

clear showing that an injunction before trial is definitely demanded by the

Constitution.

      For the foregoing reasons, I thus specially concur, in addition to joining the

opinion of the court.




                                         59
TJOFLAT, Circuit Judge, dissenting, in which BIRCH and DUBINA, Circuit
Judges, join and in which CARNES, Circuit Judge, joins as to Part V. of Judge
Tjoflat’s dissent in Touchston v. McDermott:


      I dissent. The Florida election scheme at issue is unconstitutional for the

reasons set forth in my dissenting opinion in Touchston v. McDermott, No. 00-

15985 (11th Cir. Dec. 6, 2000) and by Judge Carnes in his dissenting opinion.




                                         60
BIRCH, Circuit Judge, dissenting, in which TJOFLAT and DUBINA, Circuit

Judges, join:

       While I concur in the dissenting opinions by my colleagues, Judges Tjoflat,

Dubina and Carnes, my concern about the constitutional deprivations alleged in

these cases is focused on the lack of standards or guiding principles in the Florida

manual recount statute. Florida’s statutory election scheme envisions hand

recounts to be an integral part of the process, providing a check when there are

“error[s] in the vote tabulation which could affect the outcome of the election.”

See Fla. Stat. Ann. § 102.166(5). The 1989 Florida legislature, however, abdicated

its responsibility to prescribe meaningful guidelines for ensuring that any such

manual recount would be conducted fairly, accurately, and uniformly. While

Florida’s legislature was unquestionably vested with the power under Article II,

Section One of the United States Constitution to devise its own procedures for

selecting the state’s electors, it was also required to ensure that whatever process it

established comported with the equal protection and due process requirements of

the Fourteenth Amendment to that same Constitution.1 Other states, such as

Indiana, have provided clear and definitive standards under which manual recounts


       1
        See Moore v. Ogilvie, 

, 818-19, 

, 1496 (1969) (discussing the
applicability of the Fourteenth Amendment to the nominating process for presidential
candidates).

                                              61
are to be conducted. See Ind. Code § 3-12-1-9.5 (providing in part that chads that

have been pierced count as valid votes, but those with indentations that are not

separated from the ballot card do not). Absent similar clear and certain standards,

Florida’s manual recount scheme cannot pass constitutional muster.

       Moreover, Congress, to which the electors from Florida will be ultimately

certified, has established a safe harbor, 3 U.S.C. § 5, that requires that such rules

and standards be established before the election. Because the 1989 Florida

legislature has, in my view, abdicated its responsibility to formulate

constitutionally clear and objective statutory rules and standards for the election

process in Florida, it has disenfranchised voters throughout the state.2 The well-

intended and responsible county canvassing boards across the state have been

given, in legislative terms, an unfunded mandate --- discern the voter’s intent

without any objective statutory instructions to accomplish that laudable goal. The

effect of such an unguided, standardless, subjective evaluation of ballots to

ascertain voter intent is to cause votes to be counted (or not to be counted) based

only upon the disparate and unguided subjective opinion of a partisan (two




       2
         See Fl. Stat. Ann. § 102.166 (West 1989). See generally Roe v. Alabama, 

,
581-82 (11th Cir. 1995) (per curiam) (finding that the alteration of objective standards after the
election disenfranchised voters).

                                                62
members are elected in partisan voting) canvassing board.3 Since their opinions as

to voter intent are standardless no meaningful judicial review is possible by a

Florida court. Accordingly, by finding an abridgement to the voters’ constitutional

right to vote, irreparable harm is presumed and no further showing of injury need

be made.4

       It has been said that to err is human --- and humans vote. Thus, it should not

be surprising that the voting process is subject to error. However, as demonstrated

in the recent Presidential election, the frequency, magnitude and variety of error

associated with the exercise of this sacred right of citizenship is at once astounding

and deeply troubling. Morever, the media’s focus on the campaign preceding


       3
        See Fl. Stat. Ann. § 102.141 (providing that the County Canvassing Board shall be
comprised of a county court judge, chairman of the board of county commissioners and
supervisor of elections; Fl. Stat. Ann. § 124.01(2) (providing for popular election of county
commissioners); Fl. Const. Art. 8, Sec. 1(d) (providing for popular election of the supervisor of
elections).
       4
         We have indicated that the injury suffered by a plaintiff is “‘irreparable’ only if it cannot
be undone through monetary remedies.” Cunningham v. Adams, 

, 821 (11th Cir.
1987). To that end, we have presumed irreparable harm to a plaintiff when certain core rights
are violated. See Baker v. Buckeye Cellulose Corp., 

, 169 (11th Cir. 1988)
(irreparable harm presumed in Title VII cases); Cate v. Oldham, 

, 1188 (11th Cir.
1983) (irreparable injury presumed from violation of First Amendment rights); Deerfield Med.
Ctr. v. City of Deerfield Beach, 

, 338 (5th Cir. Unit B 1981) (irreparable injury
presumed from violation of right to privacy under the Fourteenth Amendment); Northeastern
Florida Chapter of Ass’n of Gen. Contractors v. City of Jacksonville, Florida, 

,
1285-86 (11th Cir. 1990) (explaining that the basis for presuming irreparable injury in Cate and
Deerfield was that given the “intangible nature” of the violations alleged, the plaintiffs could not
effectively be compensated by an award of monetary damages). Cf. Richard Feiner & Co. v.
Turner Entm’t Co., 

, 34 (2d Cir. 1996) (irreparable harm presumed when plaintiff
establishes a prima facie case of copyright infringement).

                                                 63
November 7, having been eclipsed by its subsequent frenzy, has left the average

citizen at the least skeptical, and at the worst cynical, about our democratic

institutions. Morever, in its present incarnation, the post-election debacle that

brings these cases to us for resolution may be cynically viewed by some as

depicted by Congresswoman Shirley Chisholm:

      [P]olitics is a beautiful fraud that has been imposed on the people for
      years, whose practitioners exchange gilded promises for the most
      valuable thing their victims own: their votes. And who benefits the
      most? The lawyers.

Shirley Anita Chisholm, Unbought and Unbossed, 1970. To respond in that way

would be a mistake.

      While our nation’s citizens have every right to be concerned, exasperated,

fatigued and even cynical, it is my fervent hope that from these events they will

come to understand, if not appreciate, the role of government’s Third Branch in the

life of our precious democracy. Our basic function in this society is to provide a

forum in which disputes --- both great and small (although to those involved, a

dispute is never “small”) --- can be decided in an orderly, peaceful manner; and

with a high level of confidence in the outcome. Lawyers, as officers of the court,

are integral to that process in our adversarial system.

      The right to vote --- particularly for the office of President of the United

States, our Commander-In-Chief, --- is one of the most central of our fundamental

                                          64
rights in a democracy.5 Accordingly, any dispute that has at its core the legitimacy

of a presidential election and impacts upon every citizen’s right to vote, deserves

the most careful study, thought and wisdom that we can humanly bring to bear on

the issues entrusted to us. Thus, I feel compelled to attest to the fact that my

brother and sister judges have embraced this case with a sense of duty, concern,

and conscientious hard work that is worthy of the issues before us.

       Aware of the importance of these cases6 and the urgency attendant to the

issues presented, we decided to take these disputes en banc --- that is, before the



       5
         An executive like the President has broad discretion; he has the power to affect every
voter, and thus every voter must be permitted to vote and to have his ballot both counted and
equally weighed. As the Supreme Court observed in Anderson v. Celebrezze, 

, 794-
95, 

, 1573 (1983) (citations omitted):

       [I]n the context of a Presidential election, state-imposed restrictions implicate a
       uniquely important national interest. For the President and the Vice President of
       the United States are the only elected officials who represent all the voters in the
       Nation. Moreover, the impact of the votes cast in each State is affected by the
       votes cast for the various candidates in other States. Thus in a Presidential
       election a State's enforcement of more stringent ballot access requirements,
       including filing deadlines, has an impact beyond its own borders. Similarly, the
       State has a less important interest in regulating Presidential elections than
       statewide or local elections, because the outcome of the former will be largely
       determined by voters beyond the State's boundaries.
       6
         These cases have arrived at the appropriate juncture and present circumstances are of
such an extraordinary scope that the “challenge to a state election rise[s] to the level of a
constitutional deprivation.” Curry v. Baker, 

, 1314 (11th Cir. 1986). See 

, 585. The dissent in Roe opined that federal courts should not interject themselves
into “state election disputes unless extraordinary circumstances affecting the integrity of the
state’s election process are clearly present in a high degree.” 

I am convinced, and
surmise that the Supreme Court has concluded, that such a situation confronts us now.

                                                65
entire court of twelve judges.7 Moreover, utilizing a procedure that we normally

employ in death penalty cases, we arranged through the clerks of the district courts

involved to have copies of all filings there “lodged” (i.e., copies provided) with us

contemporaneously.8 Hence, we have been able to review and study the progress

of the factual and legal matters presented in these cases from their inception.

Accordingly, long before the anticipated notices of appeal were filed, formally

bringing them to us, we were about the study and review of the legal issues to be

resolved. Thus, the reader of our opinions9 in this case should understand that our

time for consideration has been considerably longer than it might appear at first

blush.

         Just as the electorate was divided in their good faith effort to cast their votes

for our nation’s chief executive, the members of this court have discharged their

duty to interpret the law in the context of this case in an unbiased and sincere

effort. Inevitably the pundits will opine that a judge’s decision is somehow linked

to the political affiliation of the President that appointed the judge. While we at all

levels of the judiciary have come to expect this observation we continue to regret


         7
          Fed.R.App.P. 35(a)(2).
         8
          11th Cir. R. 22-3.
         9
       All of our opinions are available to the public on the Internet at www.ca11.uscourts.gov
upon publication.

                                              66
that some “think” that is so. It may be true that a judge’s judicial philosophy may

reflect, to some degree, the philosophy of the appointing President --- not a

surprising circumstance --- but to assume some sort of blind, mindless, knee-jerk

response based on the politics of a judge’s appointer does us and the rule of law a

grave injustice. More importantly it is just wrong.

       I would hope that a careful and thoughtful review of the opinions of my

brothers and sisters would dispel any suggestion that their views on the important

issues before us are anything but the result of days of careful study and thoughtful

analysis --- because these opinions are nothing less. We have done our duty. I am

proud to be associated with my judicial colleagues that have been called upon to

discharge their respective constitutional obligations, albeit reluctantly --- both on

this court and the many other state and federal courts involved. Indeed these recent

events have been a civics lesson for some --- particularly the young; but they have

also been a reminder that our nation’s system of governance has weathered the test

of time and tumult; the old three-legged stool10 still stands erect and with sufficient

strength to support the hopes and dreams of our nation’s citizens.




       10
        The three branches of our government, the Legislative, the Executive, and the Judicial
(“The Third Branch”), have often been compared to the familiar early American three-legged
stool.

                                              67
       The revered and quotable jurist, Learned Hand, once observed: “The spirit of

liberty is the spirit which is not too sure that it is right . . .”11 While not “right”

about many things, I am confident that we have given these matters the attention

they justly deserve and trust that, at least, we have laid the groundwork for an

informed decision by the justices of the United States Supreme Court should they

exercise their judgment to hear this case. It is my hope that they do. We have

done our best so that they can do their best.




       11
        The corollary to that thought was expressed by the elder statesman from Florida,
Congressman Claude Pepper: “One has the right to be wrong in a democracy.” Cong. Rec. May
27, 1946.

                                            68
DUBINA, Circuit Judge, dissenting, in which TJOFLAT and BIRCH, Circuit

Judges, join:

       I agree with the majority’s disposition of the issues of abstention, res

judicata, collateral estoppel, and mootness. I also join and concur fully in the

dissenting opinions filed by Judges Tjoflat, Birch, and Carnes. I dissent from the

disposition of the remaining issues discussed in the majority’s opinion.

Specifically, I disagree with the notion that we cannot convert the preliminary

injunction and reach the merits of this case. See Thornburgh v. American College

of Obstetricians & Gynecologists, 

(1986).

       As to the merits of this case, the legal principles set forth in the cases of

Moore v. Ogilvie, 

(1969), and Roe v. Alabama, 

(11th

Cir. 1995), govern. Based on these principles, I would reverse the judgment of the

district court in this case.




                                           69
CARNES, Circuit Judge, dissenting, in which TJOFLAT, BIRCH and DUBINA,

Circuit Judges, join:

       I agree with the Court that the lawsuits in this case and in Touchston v.

McDermott, No. 00-15985, are not barred by the Rooker-Feldman doctrine or by

the doctrines of res judicata, collateral estoppel, or mootness, and that there is no

basis for this Court to abstain.1 I disagree, however, with the Court’s conclusion

that irreparable injury has not been shown in these two cases. My disagreement

with that conclusion stems from my belief that the selective manual recounts in

some of the Florida counties that use the punch card system of voting violate the

equal protection rights of the voters in the other punch card system counties. The

harm from that violation exists and will continue so long as the results of any of

those selective manual recounts are included in Florida’s certified election results.

Because the existence and nature of the constitutional violation is inextricably

linked to the question of irreparable injury, I turn first to a discussion of the

selective manual recounts in this case, and how those recounts violated the



       1
          I address the two cases jointly in this opinion, which is appropriate in view of the
similarity of issues, substantial overlap of parties, cross reference in the briefs and oral argument
in each case to the other, and the district court in Touchston’s incorporation by reference of the
reasoning of the district court’s opinion in Siegel.

       In order to avoid duplication, I will adopt in my dissenting opinion in Touchston what I
have said here.

                                                 70
constitutional rights of the similarly situated voters who did not receive the benefit

of them.

      Of course, not every election dispute implicates the Constitution and justifies

federal court intervention, and “[g]enerally, federal courts do not involve

themselves in ‘garden variety’ election disputes.” Roe v. Alabama, 

,

580 (11th Cir. 1995) (Roe I) (quoting Curry v. Baker, 

, 1315 (11th

Cir. 1986)). But this case is more than a garden variety election dispute. It

concerns more than the validity of individual ballots or the administrative details of

an election. This case involves part of a state’s election law designed in a way that

permits or even encourages infringement of the federal constitutional rights of a

large category of voters, and a claim that the law was actually applied in a way that

violated those rights. Federal courts have the authority and duty to address and

decide such claims. That is what the Supreme Court did in Moore v. Ogilvie, 

, 

(1969) (striking down as unconstitutional part of Illinois’

method for selecting Presidential electors). That is what we did in the Roe cases.

See Roe 

(affirming preliminary injunction against counting votes

that state trial court had ordered to be counted); Roe v. Alabama, 

(11th

Cir. 1995) (Roe II) (same); Roe v. Alabama, 

(11th Cir. 1995) (Roe

III) (same as to permanent injunction). That is what we should do in this case.


                                          71
       The record in this case is not replete with factual detail, but there are

sufficient undisputed facts to establish a constitutional violation based upon the

selective manual recounts that were undertaken in only a few punch card counties

and the resulting discriminatory treatment or weighting of the votes of similarly

situated voters.2 For present purposes, I accept as fact everything represented as

fact in the affidavits filed by the Democratic Party, which is the party that

requested the selective manual recounts at issue in this case, and the chief party in

interest on the defendants’ side, and will add to them only those facts which neither

party disputes. Proceeding in that manner makes it appropriate to decide the merits

and whether permanent relief should be granted in these two appeals from the

denials of preliminary injunctions. See Thornburgh v. Am. Coll. of Obstetricians

& Gynecologists, 

, 755 - 57, 

, 2176 (1986), overruled

on unrelated grounds, Planned Parenthood v. Casey, 

, 

(1992). The Thornburgh decision establishes that a court of appeals may decide


       2
           The plaintiffs also complain about the manual recount that took place in one county,
Volusia, which uses the optical scan or marksense system of voting. However, the evidence
makes it abundantly clear that Volusia County was plagued with a host of problems in tabulating
its vote, including outright equipment and software failures. There is no evidence that the manual
recount conducted in Volusia County was done for any reason except to correct those failures
and ensure that they did not taint the reported results. Nor is there any evidence in the record
that any other county had an optical scan system that suffered from similar problems but for
which no manual recount was ordered. The situation involving Volusia County is materially
different from that involving the punch card system counties of Broward, Palm Beach, and
Miami-Dade. Accordingly, I will not discuss Volusia County any further in this opinion.

                                               72
the final merits of a case in an appeal from the grant or denial of a preliminary

injunction if “the facts are established or of no controlling relevance,” and it is not

a situation “when there is no disagreement as to the law, but the probability of

success on the merits depends on facts that are likely to be developed at trial.” 

& n. 

& n. 8. The facts that are established or

undisputed in these two cases entitle the plaintiffs to relief for reasons I will

explain, and thus all disputed or undeveloped facts are of “no controlling

relevance.” 3

       Proceeding in this manner, the Florida Democratic Party’s factual position

plus the undisputed facts are these. Twenty-four of Florida’s 67 counties use a

vote system in which the voter’s preference is expressed by punching a stylus

through a card that is later passed through a tabulating machine. See Siegel, Aff.

of William F. Galvin, Appendix to Brief of Florida Democratic Party (“Fla. Dem.

App.”) at tab 10; Chart A.4 There are different models of punch card tabulating


       3
          When a court of appeals decides the final legal merits of a case on an appeal from the
denial of a preliminary injunction, it does not review merely for an abuse of discretion. Instead,
its scope of review is plenary. See Thornburgh, at 

(“The customary
discretion accorded to a District Court’s ruling on a preliminary injunction yields to our plenary
scope of review as to the applicable law.”).
       4
          One of the affidavits submitted to the district court by the Florida Democratic Party
states that 26 Florida counties use punch card voting systems. See Siegel, Aff. of Jon M.
Ausman, Appendix to Brief of Florida Democratic Party at tab 13. According to the affidavit,
that information was obtained from the Florida Secretary of State’s Web Site. 

now, however, based on official records provided by the Secretary of State, that only 

machines, but all of them work by directing light at the punch card being fed

through the machine and reading the beam that results from the light passing

through the hole that has been punched in the card by the voter. See Siegel, Aff. of

William F. Galvin, Fla. Dem. App. at tab 10. If the hole punched in the card is not

clear of any chad, there is a possibility, perhaps a likelihood, that the tabulating

machine will not count the vote. 

of the punch card system to count all of the intended votes is a

problem inherent in that voting system. See, e.g., Siegel, Aff. of Ion V. Sancho,

Fla. Dem. App. at tab 9; Siegel, Aff. of William F. Galvin, Fla. Dem. App. at tab

10; Siegel, Aff. of Rebecca T. Mercuri, Fla. Dem. App. at tab 16. It is a serious

problem that results in a significant number of intended votes not being counted;

and those intended votes will remain uncounted unless there is a manual recount

involving visual inspection of the punch cards by human beings. See Siegel, Aff.

of Jackie Winchester, Fla. Dem. App. at tab 8; Siegel, Aff. of Ion V. Sancho, Fla.

Dem. App. at tab 9; Siegel, Aff. of William F. Galvin, Fla. Dem. App. at tab 10;

Siegel, Aff. of Jon Ausman, Fla. Dem. App. at tab 13; Siegel, Aff. of Rebecca T.

Mercuri, Fla. Dem. App. at tab 16. While plaintiffs question whether human

beings can accurately ascertain the intent of a voter by inspecting a punch card

counties use punch card voting systems. See Chart A. Although the difference is not material to
resolution of the legal issues, I will use the correct number, which is 24.

                                              74
with an indented, pregnant, swinging, or otherwise not fully removed chad, the

theory of the selected manual recounts undertaken in this case is that it can be

done, and that as a result intended votes which would otherwise have been

disregarded can and will be counted in a manual recount.

      Indeed, the unwavering refrain of the Florida Democratic Party underlying

its requests for manual recounts in 3 punch card counties, and throughout all of the

state and federal litigation related to this case, has been that punch card systems

necessarily and invariably undercount votes which can only be recaptured and

considered by manual recounts. In justifying its request for manual recounts in the

3 counties, the Party told the Florida Supreme Court in a related state court case

that, “It is well established that machine tabulation of votes fail (sic) to capture

votes cast by a large number of voters, particularly when the number of votes cast

is substantial – almost six million in the case of Florida’s Presidential election.

Machine tabulation of these votes, without some additional process for counting

votes that the machines fail to tabulate, results in the disenfranchisement of

countless voters.” Answer Brief of Petitioners/Appellants Al Gore, Jr. and Florida

Democratic Party at 20, Palm Beach County Canvassing Bd. v. Harris, ___ So.2d

____ (filed in the Fla. Supreme Court Nov. 19, 2000) (Nos. SC00-2346, SC00-

2348 & SC00-2349); see also 

(“Underlying the addition of a provision for


                                           75
a manual recount is an understanding that the process is more accurate than

machine counts, not less.”) (emphasis in original); 

(“[M]any studies

indicate that machine counts of punch card ballots produce significant

inaccuracies.”).

       In the briefs the Democratic Party filed in our court in these two cases, it has

told us that:

                The optical scanner voting system used by most Florida
                counties provides good results, including a “non-vote”
                percentage for the Presidency (where one would expect
                “non-votes” to be very low) of only 0.40%. Punch card
                voting, by contrast, which is in effect in the three larger
                counties that have undertaken considerable manual recounts
                ... is much less reliable, yielding an improbable “non-vote”
                percentage for the Presidency of over 3%.

Brief of Intervenor/Appellee Florida Democratic Party at 23-24, Touchston v.

McDermott, No. 00-15985 (filed in the 11th Cir. Nov. 28, 2000); see also 

(“Punch card ballots generate a consistently greater level of undervotes –

approximately 3.2% – due to imperfect perforations and still-appended chads.”).5

       5
          The figures I have quoted from the Florida Democratic Party’s brief were drawn by the
Party from the affidavit of Jon Ausman, which the Party filed in the district court in the Siegel
case. See Siegel, Aff. of Jon Ausman, Fla. Dem. App. at tab 13. In that affidavit, which is dated
November 12, 2000, Mr. Ausman states that those figures are based upon the best data he could
obtain at that time. The data was from only 18 of Florida’s 67 counties – 11 punch card counties
and 7 optical scan (or marksense) counties. 

6 - 7.

        We now have complete figures from all 67 Florida counties, because the Secretary of
State as part of her official duties keeps election reports that counties are required by law to
submit to her. The Florida Supreme Court takes judicial notice of the contents of records kept by

                                               76
        The Democratic Party told the United States Supreme Court essentially the

same thing: “Because of the high percentage of undervotes created by punch card

voting systems, the vast majority of counties in Florida do not use them.” Brief of

Respondents Al Gore, Jr., and Florida Democratic Party at 4 n.2, Bush v. Palm

Beach County Canvassing Bd., No. 00-836 (filed in the United States Supreme

Court Nov. 28, 2000).

       Summarizing its theory of the case, the Democratic Party has said: “the

evidence in this case suggests that some Florida voters could potentially be

disenfranchised because the automated systems utilized in some Florida counties




the Secretary of State, see State ex rel. Glynn v McNayr, 

, 315 (Fla. 1961), and so
may we, see generally Fed. R. Evid. 201; cf. Cash Inn of Dade, Inc. v. Metropolitan Dade
County, 

, 1243 (11th Cir. 1991) (minutes of a county commission meeting) (“A
district court may take judicial notice of public records within its files relating to the particular
case before it or other related cases.”).

       The complete figures for all 24 punch card counties, which are contained in Chart C in
the appendix to this opinion, show a combined 3.92 % “non-vote” or “no vote” rate in those
counties. The complete figures for all 41 marksense or optical scan counties, which are
contained in Chart F in the appendix to this opinion, show a combined 1.43% no vote rate in
those counties. (The number of punch card counties added to the number of optical scan counties
equals 65 instead of 67, because one county uses a lever machine system of voting and another
uses paper ballots counted by hand.).

         The complete figures show us that the true difference between the no vote rates of the
punch card and optical scan counties is 3.92 % minus 1.43%, or 2.49 %, and not the difference
that Ausman’s incomplete figures show (3.2 % minus .40 %, or 2.8%). The complete figures
still show a significant difference between optical scan and punch card counties considered as a
whole, but the complete figures also show that in the optical scan counties the no vote rate is not
.40 %, which the Florida Democratic Party’s brief tells us “is to be expected,” but instead is
1.43%, or three times the Party’s “expected” rate.

                                                 77
caused thousands of votes to go uncounted. The only means whereby those

uncounted votes can be examined is to discern the intent Florida’s voters is (sic)

through a manual recount auditing process.” Response of Intervenor/Appellee the

Florida Democratic Party In Opposition to Appellants’ Emergency Motion for

Injunction Pending Appeal at 7, Touchston, No. 00-15985 (filed in the 11th Cir.

Nov. 16, 2000). In any punch card county where manual recounts are not

undertaken, the Party says, “outright disenfranchisement” occurs. See 

(“Each of the county standards employed [in the Palm Beach and Broward County

manual recounts] was, thus, a vast improvement over the outright

disenfranchisement that results from machine undercounts caused by hanging and

dimpled chads.”).

      If the Florida Democratic Party’s theory is not valid, then the manual

recounts it requested and any change in votes resulting from those manual recounts

would amount to stuffing the ballot boxes in the selected counties with illegal or

non-existent votes, and counting those bogus votes would be unconstitutional for

that reason. See Baker v. Carr, 

, 208, 

, 705 (1962)

(recognizing that the right to vote is infringed by false tally or by stuffing the ballot

box); Roe 

. But, as I have explained, the Democratic Party insists

that a manual recount actually results in the counting of intended votes that would


                                           78
not be detected by machine, and it has put in the record numerous affidavits

supporting that view. The Florida Supreme Court seems to have embraced the

theory as well by interpreting “error in the vote tabulation” in Fla. Stat. §

102.166(5) to include a discrepancy between a machine count and a sample manual

recount in a punch card county. See generally Palm Beach County Canvassing Bd.

v. Harris, ___ So.2d ___, 

, at *5-6 (Fla. Nov. 21, 2000),

vacated, Bush v. Palm Beach County Canvassing Bd., 531 U.S. ___, ___ S. Ct.

___, No. 00-836 (Dec. 4, 2000) (per curiam). Because the state high court did so,

and because the theory is a necessary premise of the manual recounts the Party

requested in the selected counties, I accept as a fact for present purposes the

proposition that manual recounts of punch card ballots will result in intended votes

being counted that otherwise would not have been if the process had stopped with

machine tabulation.

      If manual recounting had been conducted in all the counties using the punch

card voting system so that all voters who were at risk of having their intended

votes disregarded were protected to generally the same extent by the corrective

process, there would be no federal constitutional violation, at least if we assume (as

I will for purposes of this analysis) that the standards applied in the recount were

accurate, consistent, and fair enough to satisfy due process. But manual recounts


                                          79
did not occur in all of the punch card counties. Not by a long shot. Instead, the

Florida Democratic Party requested and, in conjunction with state officials and

using administrative processes sanctioned by state law, brought about a selective

manual recount. The process which the Party insists corrects machine errors and

ensures that the will of voters is ascertained, that voters are not disenfranchised by

defective technology, was requested in only 3 of Florida’s 24 counties that suffer

from the punch card malady, the 3 being Broward, Palm Beach, and Miami-Dade.

No recount was requested or undertaken in the remaining 21 Florida punch card

counties: Collier, Desoto, Dixie, Duval, Gilchrist, Glades, Hardee, Highlands,

Hillsborough, Indian River, Jefferson, Lee, Madison, Marion, Nassau, Osceola,

Pasco, Pinellas, Sarasota, Sumter, and Wakulla.

      The manual recounts have been completed in Broward and Palm Beach

counties, and the resulting additional votes from Broward County have been added

to the statewide totals. Whether part or all of any corrections brought about by the

manual recounts in Palm Beach and Miami-Dade Counties will be added to the

statewide totals as a result of other ongoing litigation in state court remains to be

seen. Given the fluidity of events, I will assume for the remainder of this opinion

that the manual recount results from all 3 of the selected counties will be added to

the statewide totals. However, irrespective of what is decided in the state litigation


                                          80
involving Palm Beach and Miami-Dade Counties, my conclusion remains the same

because any difference in degree of selectivity between one, two, or three counties

being manually recounted and the remainder of the 24 punch card counties not

being recounted is immaterial under the applicable constitutional principles. The

difference between one, two, or three manual recounts being conducted may affect

the result of the election, but the Constitution forbids violations of voters’ equal

protection rights even when those violations do not change the outcome of the

election. See infra at 112-113.

      The voters who for whatever reason did not succeed in dislodging the chad

next to their choice for President had their votes counted in Broward County and

may eventually have their votes counted in the 2 other selected counties, but the

voters in all of the other 21 punch card counties who applied the same pressure on

the stylus and brought about the same effect, or lack of intended effect, on the chad

connected with their choice for President did not have their votes counted. Under

the Florida Democratic Party’s theory of punch card undercounting, thousands of

similarly situated Florida citizens who intended to vote for President were thwarted

in their efforts by defective technology, perhaps combined with a bit of personal

carelessness, and whether their intended votes count has been made to depend

solely upon the county in which they live. If they live in Broward County (or


                                          81
maybe in Palm Beach or Miami-Dade Counties, too), their votes count; but if they

live in any of the other punch card counties, they do not. The one and only

difference is in which of the 24 punch card counties they live.

      “A citizen’s right to a vote free of arbitrary impairment by state action has

been judicially recognized as a right secured by the Constitution, when such

impairment resulted from dilution from a false tally, or by a refusal to count votes

from arbitrarily selected precincts, or by a stuffing of the ballot box.” Baker v.

Carr, 

, 208, 

, 705 (1962) (internal citations omitted);

accord Reynolds v. Sims, 

, 555, 

, 1378 (1964) (“And

the right of suffrage can be denied by a debasement or dilution of the weight of a

citizen’s vote just as effectively as by wholly prohibiting the free exercise of the

franchise.”) (footnote omitted).

      For at least a quarter of a century, it has been established that “[d]iluting the

weight of votes because of place of residence impairs basic constitutional rights

under the Fourteenth Amendment just as much as invidious discriminations based

upon factors such as race, or economic status.” Reynolds, 377 at 

(internal citations omitted). As the Supreme Court explained in Reynolds,

“Overweighting and overvaluation of the votes of those living here has the certain

effect of dilution and undervaluation of the votes of those living there.” 

. The Constitution prohibits states from weighting votes

differently based on the voters’ place of residence. The Supreme Court enforced

this prohibition in Gray v. Sanders, 

, 

(1963), when it

struck down the county unit system the Georgia Democratic Party used in it

primary elections. Under that complicated system every citizen got one vote, but in

the final analysis some votes mattered more than others – they counted more –

and the difference was based upon the counties in which the voter lived. 

83 S.Ct. at 803-04. The Court held that the Constitution prohibits such

selectivity. 

835 S.Ct. at 808-09.

      Another variation on selective weighting of franchise by county of residence

was presented to the Court in Moore v. Ogilvie, 

, 

(1969). That case involved an Illinois law that required a candidate seeking a place

on the statewide ballot to present a nominating petition containing the signatures of

at least 25,000 voters. That basic requirement was not a constitutional problem,

but a proviso that also required the nominating petition to include the signatures of

200 or more voters from each of at least 50 counties was a problem. 

84

S.Ct. at 1494. Illinois adopted that proviso in order to ensure that any candidate

who got on its statewide ballot had at least minimal state-wide support, because

“[a]n elected official on the state level represents all the people in the state,” and


                                           83
“[s]uch representatives should be aware of and concerned with the problems of the

whole state and not just certain portions thereof.” Moore v. Shapiro, 

, 414 (N.D. Ill. 1968) (three-judge court), rev’d sub nom. Moore v. Ogilvie,

, 

(1969). The geographic-spread proviso in Illinois’

nominating petition requirement was unquestionably “an expression of rational

state policy,” Moore v. 

, but that did not save it from

being struck down.

      The problem with the Illinois proviso, the Supreme Court explained in

Moore, was that it discriminated against voters residing in the more populous

counties of the state in favor of those residing in the less populous counties. The

constitutional math went like this:

             Under this Illinois law the electorate in 49 of the counties
             which contain 93.4 % of the registered voters may not form
             a new political party and place its candidates on the ballot.
             Yet 25,000 of the remaining 6.6 % of registered voters
             properly distributed among the 53 remaining counties may
             form a new party to elect candidates to office. ... It,
             therefore, lacks the equality to which the exercise of
             political rights is entitled under the Fourteenth Amendment.

89 S.Ct. at 1496. Although the selective weighting of the franchise

accomplished by the proviso involved in Moore was more sophisticated and less

direct, and as a result less obvious, than the laws struck down in Reynolds v. Sims,



                                          84
it still failed to “pass muster against the charges of discrimination or of

abridgement of the right to vote.” 

, 89 S.Ct. at 1496.

       Given the fertility of the human mind when focused upon political

objectives, denial or debasement of the franchise can be accomplished in myriad

ways. But whatever the method or means used to count, weigh, or value some

votes differently from others, however sophisticated or indirect the device, the

Constitution is up to the task. See 

, 84 S.Ct. at 1382

(“One must be ever aware that the Constitution forbids ‘sophisticated as well as

simpleminded modes of discrimination.’”) (citation omitted). Because of the

central importance of the right to vote in our system of representative democracy,

“any alleged infringement of the right of citizens to vote must be carefully and

meticulously scrutinized,” 

84 S.Ct. at 1381, and that is the duty of the

courts.6


       6
           The Attorney General of Florida argues to us that in judging the selective manual
recounts at issue in this case under the Equal Protection Clause we ought not apply strict scrutiny
but, instead, should apply a lesser standard, and he cites Burdick v. Takushi, 

, 

(1992), and Fulani v. Krivanek, 

(11th Cir. 1992), for that proposition.
See Supplemental Brief of Appellee Attorney General of Florida at 4-7, Siegel, No. 00-15981
(filed in the 11th Cir. Nov. 28, 2000). However, his argument, and those citations, miss the
point. Burdick and Fulani are ballot-access cases, not cases involving different treatment or
weight given to votes cast. In Reynolds, which did involve different treatment of votes cast, the
Supreme Court said that the proper standard was careful and meticulous 

, 84 S.Ct. at 1381.

       The question is actually less one of the degree of scrutiny than it is a straightforward
inquiry into whether the votes of otherwise similarly situated voters are being treated or

                                                85
        Of course, many cases dealing with sophisticated debasements of the right

to vote have political overtones, and that is no less true here than usual. The

Supreme Court was presented in Reynolds with the argument that it ought to stay

its hand and keep out of the political thickets involved in that case. To that

suggestion the Court responded: “Our answer is this: a denial of constitutionally

protected rights demands judicial protection; our oath and our office require no less

of us.” Id. at 

. That is a good answer.

       In order to apply the principles of these decisions to the facts of the cases

before us, I turn now to a closer examination of the selection of the 3 counties in

which a manual recount was requested.7 Acting pursuant to Fla. Stat. §

weighted differently because of where they live in the state. If that occurs, then there is a
violation of the equal protection rights of the voter even if there is a rational purpose for the
discrimination, as there was in Moore v. Ogilvie.
       7
          There has been some discussion by the parties about full or partial manual recounts that
were undertaken in at least 2 (Gadsden and Seminole) and possibly 3 (Polk) counties that use the
marksense or optical scan voting system. The parties agree that those manual recounts were not
requested by any candidate or political party, but were instead initiated by local canvassing
boards during the period for the statewide automatic machine recount undertaken pursuant to
Florida law. The circumstances relating to those recounts and any problem that may have led to
them are unknown in large part because neither of these two cases contains a claim or
counterclaim concerning those recounts, and the canvassing boards involved are not parties to
either lawsuit.

        Those recounts do not affect my analysis because they occurred in optical scan counties,
were not conducted at the request of a political party or candidate, and may have been
undertaken as a result of local problems, as was the case with Volusia County, which also uses
the optical scan system. 

n.2. In any event, even if there were unconstitutional
selectivity in the choice of those 3 optical scan counties, that would not lessen the violation of
the Equal Protection Clause that occurred when the Florida Democratic Party selected 3 of the
24 punch card counties for manual recounts.

                                                  86
102.166(4), the Democratic Party filed written requests for manual recounts in

Broward, Palm Beach, and Miami-Dade Counties, and no other punch card

counties. Siegel, Fla. Dem. App. at tabs 1, 3 & 5. There were two common

grounds stated in each of those 3 written requests. One ground given in all 3

requests was that the punch card system with its chads created a risk that intended

votes had not been counted (“undervotes”) or actually did result in undervotes, a

problem the requests said could be corrected by a manual recount with its attendant

visual inspection of the cards. The other stated ground in all 3 requests was that

the election results in Florida showed that the race for President was very close. No

other grounds were given in the manual recount requests.8 See 

is one exception to that statement. The request for a manual recount in Palm
Beach County contained another ground. It was stated in the Palm Beach recount request that
the particular configuration of the ballot in that county (the so-called “butterfly ballot”) had
confused Palm Beach’s voters, producing two bad results: a substantial number of votes were
disregarded because more than one choice was punched in the presidential race; and some
voters may have inadvertently voted for someone other than their true choice. See Siegel, Fla.
Dem. App. at tab 1.

        That problem cannot explain or justify why the Democratic Party selected the 3 punch
card counties that it did. First, neither Broward or Miami-Dade Counties used a butterfly ballot,
and there was no voter confusion reported in the request for manual recounts filed in either of
those counties. Second, the purpose of a manual recount in a punch card county is to find
intended votes that the tabulating machine did not pick up because a chad was not sufficiently
punched out. Any ballot in which the tabulating machine picked up two votes cast for the same
office would be one in which the voter had cleanly punched out not one but two chads, or the
machine would not have read it as two votes. Instead of helping cure that “overvote” problem, a
manual recount searching for additional votes in the form of dimpled, pregnant, or swinging
chads not picked up by the tabulating machine could only aggravate the problem. That is
precisely the concern that the Horowitz intervenors, a group of Palm Beach voters who
supported the Democratic Party’s nominee in the election, expressed in the district court. See

                                                87
       The problem with machine tabulating of punch card ballots is common to

counties that use the punch card system. The Democratic Party has never

contended to the contrary, but instead has insisted that the problem is inherent in

punch card technology. For that reason, the existence of a punch card voting

system cannot be a basis for differentiating the 3 counties that were selected from

the 21 that were not. And, of course, the fact that the statewide totals in the race

for President were extremely close was a common fact, and therefore could have

served as grounds for a recount in any of the other 21 punch card counties. There is

nothing in the reasons that the Party gave for requesting a manual recount in the 3

selected counties that explains, let alone justifies, the discrimination in favor of

those 3 punch card counties and against the other 21. In order to give the Party the

benefit of the doubt and to consider all the possibilities, I will now look elsewhere

for an explanation.

       Charts A - F, which are attached as appendices to this opinion, contain

population and other demographic data, as well as relevant vote data on a county-



Siegel, Hearing Trans. at 108.

       As to the Palm Beach voters who allegedly inadvertently voted for the wrong candidate
because they were confused, a visual inspection of a punch card ballot showing a hole clear
enough for the tabulating machine to have picked it up could not reveal whether at the time the
hole was punched the person doing the punching thought it would count as a vote for another
candidate.

                                               88
by-county basis.9 That vote data represents things as they stood on November 9,

2000, after the automatic machine recount required under Fla. Stat. § 102.141(4)

had been conducted. That is the relevant vote data for our purposes, because it

reflects the facts as of the time the Florida Democratic Party filed its manual

recount requests in Broward, Miami-Dade, and Palm Beach Counties on November

9, 2000.

        Chart A shows that the 3 counties selected by the Democratic Party for a

manual recount share these characteristics: 1) they are the 3 most populous

counties in the State of Florida; 2) they are the 3 counties in which the Party’s

nominee, Vice-President Al Gore, received the largest number of votes; and 3) in

each of them he received substantially more votes than his opponent, Governor

Bush.

        The theory underlying the manual recount, as I have already explained, has

always been that the punch card system of voting necessarily and inevitably results

in some intended votes not being picked up by the tabulating machine. The Florida

Democratic Party has never suggested that its selection of counties for manual

recounts was based upon any county-by-county variation in either the way the

punch card system operates or in its rate of accuracy. Instead, the consistent

        9
         We can take judicial notice of that vote data, which is from the records the Florida
Secretary of State keeps as required by law and pursuant to her official duties. 

n.5.

                                                89
position of the Party, which is generally supported by the affidavits it submitted in

the district court, is that every time the punch card system is used there will be

intended votes that are not counted by the tabulating machine. 

at 72-77.

Given the stated justification that the manual recounts were necessary in Broward,

Miami-Dade, and Palm Beach Counties because those counties used the punch

card system, the more relevant focus is on the population and voting data from all

of Florida’s 24 punch card counties. Chart B shows that data. Of course, because

the 24 punch card counties are a subset of all of Florida’s 67 counties, the

characteristics that distinguish the 3 counties chosen by the Party on a statewide

basis also distinguish them in relation to the other 21 punch card counties: those 3

are the most populous and vote-rich of all the punch-card counties, and in each of

them the Party’s nominee received substantially more votes than his principal

opponent.

       Not only that, but we also see from the data contained in Chart B another

conspicuous fact. The 3 counties the Florida Democratic Party selected for manual

recounts are 3 of the 4 punch-card counties that gave its nominee the highest

percentage of the vote cast among the two opposing Presidential candidates. Those

percentages are as follows: Broward (68.55%); Palm Beach (63.81%); and Miami-

Dade (53.18%). No other punch card county gave the Party’s nominee a greater


                                          90
percentage of its vote than Broward and Palm Beach Counties, and only one punch

card county gave the Party’s nominee a greater percentage of its vote than Miami-

Dade County did. That lone exception is sparsely populated Jefferson County

which, although favoring the Party’s nominee with 55.10 % of its vote, cast a total

of only 5,519 votes for the nominees of both major parties (compared, for example,

to the 618,335 votes cast for them in Miami-Dade County). Because so few votes

were cast in Jefferson County, that county offered little prospect for finding

enough uncounted votes to make a difference. In effect, the voters of Jefferson

County were too few in number to matter in view of the Party’s objective, which

was to change the election result that had been reported to that date.

      Given the theory of the recount – finding intended votes that were not

counted by the punch card system – the most relevant data of all would be the

percentage of votes that were intended but not counted. We do not have that, but

neither did the Florida Democratic Party when it selected the punch card counties

in which to request recounts. We do have the “no vote” data, which shows the

difference between the total number of voters who cast a ballot and the total votes

cast for any Presidential candidate. In other words, the no vote data shows the

number of ballots in which no vote for President was counted either because the

tabulating machine did not pick up from the punch card any vote for President, or


                                          91
because it picked up two or more votes for President on the same card resulting in

no vote for President being counted.

      Chart C ranks the punch card counties by percentage of no votes in the

Presidential race. If Palm Beach, Miami-Dade, and Broward Counties had been

selected for manual recounts because of problems resulting in no vote for

President being picked up by the tabulating machines, those 3 counties would have

the highest no vote rates. They do not. Chart C shows that there are 7 punch card

counties with a higher percentage of no votes in the Presidential race than Palm

Beach County, yet none of them was selected for manual recounts. The chart also

shows that 10 punch card counties have a higher percentage of no votes than

Miami-Dade County, but none of them was selected for a manual recount. And as

for Broward County, there were 17 punch card counties with a higher no vote rate

that were not selected for manual recounts. In fact, Broward is tied for the fourth

smallest percentage of no votes for President among all of the 24 punch card

counties, yet the Florida Democratic Party still selected it for a manual recount.

      One of the many affidavits the Florida Democratic Party submitted in the

district court stated that “two groups of citizens, the elderly and minorities, are

more prone to have problems on this system than the rest of the population.”

Siegel, Aff. of Ion V. Sancho, Fla. Dem. App. at tab 9. Perhaps that opinion rests


                                           92
upon derogatory stereotypes that federal courts should not countenance. Even

assuming, however, that there is some factual basis for that opinion and that we

should consider the possibility, the problems that any group, including the elderly

and minorities, have with punch card voting should be captured to some extent in

the no vote data contained in Chart C. But as we have seen, the Party’s selection of

the 3 counties cannot be justified on the basis of that data.

      Moreover, Chart D, which ranks the punch card counties by percentage of

population over the age of 65, shows that 7 of those counties that were not selected

for manual recounts have a greater percentage of their population in that age

category than Palm Beach County does; 11 not selected for manual recounts have a

greater percentage in that age category than Broward County does; and 13 of them

have a greater percentage in that age category than Miami-Dade County does. The

Florida Democratic Party’s selection of punch card counties for manual recounts

could not have been based upon the percentage of elderly in each county’s

population.

      As for “minorities” having more problems with punch card voting, it is

unclear exactly what the Florida Democratic Party’s affiant meant by “minorities.”

Chart E shows that if he meant to include both blacks and Hispanics in that

grouping, Miami-Dade County’s population does have a higher percentage of


                                          93
minorities than any other punch card county. But the chart also shows that 6 punch

card counties that were not selected for manual recounts have a higher percentage

of minorities in their populations than Broward County, which was selected. And it

shows that 8 punch card counties that were not selected for manual recounts have a

higher percentage of minorities in their population than Palm Beach County which

was also selected.

      So, the facts we have about the Florida Democratic Party’s selection of the

counties in which a manual recount would be undertaken in order to ensure that

voters were not disenfranchised by systemic problems with punch card technology

or by carelessness, are these. The selection was not based upon the rate of punch

card error – the no vote rate – nor was it based upon the relative percentage of

senior citizens or minorities in each county’s population. Instead, the defining

characteristic of the 3 punch card counties chosen to undertake a manual recount is

that they are the 3 most populous counties in the state, all of which gave the Party’s

Presidential nominee a higher percentage of the vote than his opponent.

      Of course, none of this is surprising. We expect political parties to act in

their own best political interest, and the 3 most populous counties that had voted

for its nominee presented the Florida Democratic Party with its best prospects for

turning the election around. It would not have served the Party’s goal of electing


                                         94
its nominee for President for it to have sought the intended but unsuccessful votes

in those punch card counties that went for the other party’s nominee, Governor

George W. Bush. The voters in 17 of the 24 punch card counties favored Governor

Bush. See Chart B. Examples include Hillsborough County (51.6 % of its 350,317

Bush/Gore votes went for Bush) and Collier County (66.89 % of its 90,351

Bush/Gore votes went for Bush). 

that every intended vote was

counted in those 17 counties that favored Bush over Gore, over two-thirds of the

total number of punch card counties, was not the way for the Florida Democratic

Party to get its candidate elected.

      Nor would it have been efficient for the Florida Democratic Party to expend

its manual recount efforts in vote-poor counties like Jefferson, whose voters did

express a pronounced preference for the Party’s nominee. Loyal Democrats though

they may be, the citizens of Jefferson County suffered from the misfortune of

living in a county whose population was so small that the total votes it cast for the

two principal candidates for President were only 1.31 % of those cast in Palm

Beach County, only .98 % of those cast in Broward County, and only .89 % of

those cast in Miami-Dade County. That is too few to have mattered when it came

to the Party’s goal of changing the results of the statewide election.




                                          95
      There may have been another factor at work in the Florida Democratic

Party’s selection of the 3 most populous counties as the ones in which to request a

manual recount. State law encourages, if not requires, manual recount choices to

favor counties with greater vote totals over those with lesser vote totals. Under the

statute, once a sample recount of at least 3 precincts and 1 percent of the votes cast

in the county has been conducted, the county canvassing board can manually

recount all the ballots only “[i]f the manual recount [sample] indicates an error in

the vote tabulation which could affect the outcome of the election.” Fla. Stat. §

102.166(5). Of course, the larger the number of votes in a county the greater the

likelihood that a complete manual recount in that county alone will affect the

election, and under § 102.166(5) that appears to be the measuring rod for

undertaking a complete manual recount. Because the number of votes obviously

varies in relation to a county’s population, there is a greater likelihood that a

complete manual recount in a more populous county will change the election

result. Since the possibility of a different statewide result appears to be a

prerequisite for a complete manual recount in a county, the statute encourages and,

in some cases – where the pre-manual recount statewide difference in votes is

larger than the votes that could be picked up by a full manual recount in a less

populated county – may require discrimination against less-populous counties.


                                           96
       Consider the present case. After the statewide machine recount mandated by

Florida law, the statewide difference between the two Presidential candidates was

300 votes. It would be far easier for the Florida Democratic Party to show that that

margin could be erased by a manual recount in heavily populated Miami-Dade

County, which had reported a total of 618,335 votes for the two candidates, than

it would be for the Party to show the same thing in sparsely populated Jefferson

County, where only 5,519 votes were cast for the two candidates. In fact,

depending upon the initial margin of victory, it could well be impossible to get a

complete manual recount in many of the punch card counties, regardless of which

candidate the voters in that county favored.10

       It may be that the Florida Democratic Party would have chosen the 3 punch

card counties it did even without the requirement in Fla. Stat. § 102.166(5) that the

sample recount conducted in each county show that the outcome of the election



       10
           The discrimination that results from making a manual recount dependent upon whether
the recount difference in the county could change the statewide result can also be illustrated by a
fairly simple hypothetical. Suppose the statewide difference was Bush over Gore by 300 votes,
and a sample manual recount showed that a full recount in Miami-Dade would probably result in
a net gain for Gore of 400 votes. Suppose further that in each of the 17 punch card counties that
voted for Bush over Gore a sample manual recount showed that conducting a full manual recount
would result in net gains for Bush of 25 to 100 votes in each of those 17 counties for a combined
total net gain of 900 votes for Bush. As Fla. Stat. § 102.166(5) is written, it appears that
complete manual recounts could not occur in those 17 less-populated counties, because the
projected change in none of them, standing alone, would be enough to alter the statewide result,
even though the combined total of their projected changes would have swung the election result
back to Bush.

                                                97
could be changed by continuing the recount in that county. Somewhat to its credit,

the Party has never denied (at least not in federal court during litigation of these

two cases) that it chose for manual recounts the 3 counties that it did, and not

others, because those counties are populous, i.e., vote rich, and their voters had

expressed a preference for its Presidential nominee. In our Court alone, the Party

filed over 180 pages of briefs and used more than 40 minutes of oral argument time

to explain its position. Never once in its briefs or in its oral arguments did the

Party suggest that its selection of the 3 punch card counties out of 24 for a manual

recount was based on anything other than partisan self-interest. That the

Democratic Party predictably acted in its own best interests in using the state law

recount machinery to ensure that intended votes which would otherwise be

disregarded would only be counted in counties favoring its candidate does not end

the inquiry. There is the matter of the Constitution.

      When a political party uses state machinery and exercises prerogatives it is

given under state law to influence the counting or alter the effect of votes, it is a

state actor subject to the same constitutional constraints that protect citizens from

the state and its officials. See Terry v. Adams, 

, 481, 

,

819 (1953) (white primary case) (“[A]ny part of the machinery for choosing

officials becomes subject to the Constitution’s restraints.”) (citations and


                                           98
quotations omitted). The manual recount provision contained in Fla. Stat. §

102.166(4), and the selectivity it encourages or permits political parties to exercise

in bringing about recounts, is an integral part of the election process in Florida, as

we have seen in recent days, and the Supreme Court has held that “[a]ll procedures

used by a State as an integral part of the election process must pass muster against

the charges of discrimination or of abridgement of the right to vote.” Moore v.

Ogilvie, 

, 818, 

, 1495 - 96 (1969).

      The Florida manual recount statute gives government officials some

discretion over whether to conduct a manual recount, see Fla. Stat. § 102.166(4)(c)

(“The county canvassing board may authorize a manual recount”), and government

officials are intimately involved in the actual recount procedure itself. Those two

facts reinforce the conclusion that the Florida Democratic Party’s selection of the

counties in which manual recounts could occur is state action subject to

constitutional scrutiny. See Dennis v. Sparks, 

, 27 - 28, 

,

186 (1980) (“[T]o act ‘under color of state law’ for § 1983 purposes does not

require that the defendant be an officer of the State. It is enough that he is a willful

participant in joint action with the State or its agents. Private persons, jointly

engaged with state officials in the challenged action are acting . . . ‘under color’ of

law for purposes of § 1983 actions.”) (citation omitted); Gray v. Sanders, 

368, 374 - 75, 

, 805 (1963) (“We agree with that result and conclude

that state regulation of this preliminary phase of the election process makes it state

action.”) (citation omitted). What the State of Florida and its officials cannot

constitutionally do alone, the State and the Florida Democratic Party acting jointly

cannot do either.

       If Florida enacted a statute that provided a manual recount procedure for

correcting the undervote caused by the use of the punch card voting system, but

provided that the corrective procedure could be invoked only in the 3 most

populous counties of the state, no one would question that such a provision would

be unconstitutional.11 And it would be unconstitutional no matter how rational the

purpose of the statute. Suppose, for example, that the state thought it was more

efficient to conduct manual recounts in the really big punch card counties, and not

worth the effort to do it in any little, sparsely populated, or vote-poor punch card

counties. I hope that no judge on this Court would suggest such a law would be

constitutionally permissible.


       11
           The hypothetical statute is not far removed from the statute that Florida does have. As
I have previously pointed out, the statute appears to permit a full manual recount only if the
sample recount indicates that a full recount in that county could affect the election result. Fla.
Stat. § 102.166(5) (the county canvassing board can manually recount all the ballots only “[i]f
the manual recount [sample] indicates an error in the vote tabulation which could affect the
outcome of the election”). Because of that apparent requirement, the statute encourages in every
case, and may require in some cases, that the manual recounts be requested in more populous,
vote-rich counties.

                                               100
      The reason we would or should be unanimous in holding such a law

unconstitutional is that states cannot treat votes differently depending upon the

counties in which the voters live. The constitutional wrong in that hypothetical

case and in the present case is the mirror image of the one in Moore v. Ogilvie,

, 

(1969). Just as the Constitution forbids a state from

counting or weighting votes less because they come from more populated

counties, it also forbids a state from counting or weighting votes less because they

come from more sparsely populated counties. Yet that is precisely what the

manual recounts in the 3 selected Florida counties does.

      Recall that the central fact underlying the theory behind the manual recounts

in Broward, Palm Beach, and Miami-Dade Counties is that the punch card system

of voting necessarily and inevitably results in some intended votes not being

counted unless there is a manual recount. 

at 72-77. With the selective

manual recounts that the Florida Democratic Party and government officials have

jointly brought about, voters are treated differently depending upon where they

live. There are two sets of punch card voters whose efforts to vote are not picked

up by the tabulating machines. One set, the favored one, lives in Broward, Palm

Beach, and Miami-Dade Counties. The second set has the misfortune to live in the

other 21 punch card counties. The votes of the first set count; the votes of the


                                         101
second set do not. Two voters using the same effort to press an identical stylus

against a punch card and bringing about the identical effect on a chad next to a

Presidential candidate are treated differently. See O’Brien v. Skinner, 

, 529, 

, 743 (1974) (holding unconstitutional a statute under which

two citizens “sitting side by side in the same cell may receive different treatment as

to voting rights”). One vote is counted, the other not. The sole reason is that the

Florida Democratic Party, acting with the authority given to it by the state, and

pursuing its own political interests, chose to have one vote counted and the other

not.

       The matter was aptly put in a letter Florida Attorney General Robert

Butterworth wrote to the Chair of the Palm Beach County Canvassing Board on

November 14, 2000. The letter referred to the “extremely serious” legal issues that

would arise if manual recounts were conducted in some counties but not others.

He said that “a two-tier system for reporting votes would result,” and:

             A two-tier system would have the effect of treating voters
             differently, depending upon what county they voted in.
             A voter in a county where a manual count was conducted
             would benefit from having a better chance of having his
             or her vote actually counted than a voter in a county
             where a hand count was halted.

Touchston, Hearing, Ex., Trans. at 9-16, 44-45 & 48. That is exactly the situation

resulting from the Florida Democratic Party and Florida’s state or local officials

                                         102
acting jointly to manually recount votes in only 3 of the 24 punch card counties. In

that letter, Attorney General Butterworth went on to say that he felt “a duty to warn

that if the final certified total for balloting in the State of Florida includes figures

generated from this two-tier system of differing behavior by official canvassing

boards, the State will incur a legal jeopardy, under both the U.S. and state

constitutions.” That “legal jeopardy” under the United States Constitution is what

this litigation is about.12




       12
           Butterworth, who is the co-chair of the Florida campaign for the Democratic nominee
for President, see Touchston, Hearing Trans. at 10, wrote the letter and an attached advisory
opinion in order to persuade Palm Beach County to manually recount its punch card ballots. The
letter referred to the possibility that Seminole County, which did not use the punch card system,
had manually recounted its ballots. The Florida Democratic Party represented to us, however,
that the optical scan or marksense system of voting, which is what Seminole County uses, see
Chart A, “provides good results” and a no-vote percentage that one would expect to occur
naturally, see Brief of Intervenor/Appellee Florida Democratic Party at 23-24, Touchston v.
McDermott, No. 00-15985 (filed in the 11th Cir. Nov. 28, 2000). The Party says that system is
not plagued by the same problems as the punch card system used in Palm Beach and the 23 other
counties.

         If manually recounting in one county that does not have a punch card system results in
“legal jeopardy” because voters are being treated differently in that county from voters in punch
card counties, then conducting manual recounts in only a few of the punch card counties also
treats similarly situated voters in the punch card counties differently, and results in “legal
jeopardy.”

       The Butterworth letter does speak of the different treatment being a result of “differing
behavior of official canvassing boards,” but it was the Florida Democratic Party that chose
which county canvassing boards could undertake a manual recount pursuant to Fla. Stat. §
102.166(4). And, as I have already explained, Supreme Court precedent establishes that in
choosing those counties, the Party was engaged in state action, and could not do what the
Constitution forbids government officials from doing.

                                               103
      If we accept what the Florida Democratic Party has told us, we can even put

an estimate on the number of affected voters who are being discriminated against

in the manual recount: the number who tried to vote for a Presidential candidate

but were prevented from doing so by the punch card system and for whom no

effort is being made to ascertain their true intent. The Party says that the optical

scanner system used in most Florida counties provides good results and the

undervote in counties using that system is only .40 %, which the Party says is

about what we should expect to occur naturally, i.e., by virtue of voter intent, in a

Presidential election in Florida. Brief of Intervenor/Appellee Florida Democratic

Party at 23-24, Touchston v. McDermott, No. 00-15985 (filed in the 11th Cir. Nov.

28, 2000). Yet the undervote in punch card counties, the Party says, is

approximately 3.2%. 

Thus, the difference in the undervote rate caused

by the punch card system, if we accept the Party’s figures, is approximately 2.8% .

The total number of ballots cast in the 21 punch card counties in which no manual

recount is being conducted is 2,013,666. See Chart C.

      Applying the Party-supplied machine-caused-undervote rate of 2.8% to that

figure gives us an estimated 56,382 voters in the non-selected punch card counties

who tried to cast their votes but were thwarted by chad problems of one kind or




                                          104
another.13 It is those more than 56,000 voters whom the Florida Democratic Party,

in conjunction with the state, is discriminating against in its selective manual

recount. Unlike their similarly situated fellow citizens in the 3 most populous

counties, no effort is being made to ascertain their true intent – thereby re-

enfranchising those whose attempts to vote were thwarted by defects in the

technology – by manually inspecting their punch card ballots. As the Supreme

Court held in Reynolds v. Sims, “[w]eighting the votes of citizens differently, by

any method or means, merely because of where they happen to reside, hardly

seems justifiable. One must be ever aware that the Constitution forbids

‘sophisticated as well as simpleminded modes of discrimination.’ ” 377 U.S. at

(citations omitted).

       The same analysis applies and the same conclusion is reached , of course, if

one views the selection factor as being not the population of the counties but

instead the number or percentage of votes cast for the Florida Democratic Party’s

       13
           As I have already pointed out, the Florida Democratic Party’s estimated 2.8 %
undervote difference between the optical scan and punch card counties was based upon
incomplete data, and we now know from complete data that the difference in “no vote” rates is
actually 2.49 %. 

n.5. However, if the results from Broward, Miami-Dade, and Palm
Beach Counties are excluded, then the rate of no vote in the remaining 21 punch card counties
drops from 3.92% to 3.62%. 

n.5 & Chart C. When the marksense or optical scan no
vote rate of 1.43% is subtracted, see Chart F, the resulting difference in no vote rates between the
remaining punch card counties and the optical scan counties is 2.19%. Applying that rate to the
number of ballots cast in the remaining 21 punch card counties indicates that if the Party’s
central theory is correct, there are 44,099 voters in those 21 counties whose intended vote for
President was not counted.

                                                105
nominee in the counties (both factors coincided here). Just as a state, and a

political party acting in conjunction with the state, cannot discriminate among

voters based upon the population of their counties, so also they may not

discriminate among voters based upon political opinions and beliefs as expressed

by the candidates for whom those voters cast their ballots. Shifting the focus of the

selection from population to political preference simply adds the weight of the First

Amendment to that of the Equal Protection Clause in prohibiting the selectivity.

Either way there is unconstitutional discrimination against the voters in the punch

card counties not selected for manual recounts. “Their right to vote is simply not

the same right to vote as that of those living in a favored part of the State.”

, 84 S.Ct. at 1382.

      In the face of the constitutional command that votes be treated and weighted

the same regardless of where the voter lives within a state, various of the

defendants respond with several arguments. One thing they argue is that states are

due deference in the way they run elections and, in light of Article II, § 1, cl. 2 of

the Constitution, and 3 U.S.C. § 5, states are due special deference when it comes

to the selection of electors. But states are due no deference if they go about

selecting electors in a way that violates specific provisions of the Constitution,

including the Equal Protection Clause. The Supreme Court has expressly held that


                                          106
the power that Article II gives the states to select electors cannot be exercised in a

way that violates the Equal Protection Clause. See Williams v. Rhodes, 

, 29, 

, 9 - 10 (1968) (“Nor can it be thought that the power to select

electors could be exercised in such a way as to violate express constitutional

commands that specifically bar States from passing certain kinds of laws. ... We

therefore hold that no State can pass a law regulating elections that violates the

Fourteenth Amendment’s command that ‘No State shall ... deny to any person ...

the equal protection of the laws.’”); accord, Anderson v. Celebreezze, 

, 795 n.18, 

, 1573 n.18 (1983). After all, Moore v. Ogilvie,

, 

(1969), applied the one person, one vote doctrine to

strike down an Illinois statute in a case involving the selection of electors. The

issue is not about Article II or 3 U.S.C. § 5; it is about whether the selective

manual recounts in question violate the Constitution. Because they do, nothing in

Article II and certainly nothing in any federal statute insulate that unconstitutional

action from remedy.14

       14
           Some of the defendants seek cover from Roudebush v. Hartke, 

, 

(1972), but it does not provide any for them. That decision did not address the equal
protection rights of voters, nor did it involve the discriminatory application of election laws in
general or of recount laws in particular. It decided only the narrow issue of whether a recount of
the ballots cast in an election for the United States Senate was a valid exercise of a state’s power
to prescribe the times, places, and manner of holding elections pursuant to Article I, § 4, or was
instead a forbidden infringement on the power that Article I, § 5 gives the Senate to judge the
qualifications of its members.


                                                107
       Getting closer to the merits issue, the defendants also argue that Florida law

permits any political party with a candidate on the ballot, or any candidate whose

name appears on the ballot, to file a written request with the county canvassing

board for a manual recount. See Fla. Stat. § 102.166(4)(a). There is no equal

protection problem, they say, because the Republican Party or its candidate could

have requested that manual recounts be conducted in each of the punch card

counties. This argument is not at all persuasive.

       As I have already explained, although the Republican Party or its candidate

could have requested a manual recount in any of Florida’s counties, the statute

permits full manual recounts in only those counties in which a sample manual

recount indicates “an error in the vote tabulation which could affect the outcome of

the election.” Fla. Stat. § 102.166(5). Some of the punch card counties are so

sparsely populated, so vote poor, that even if a manual recount had been requested

and a sample recount conducted as provided in Fla. Stat. § 102.166(4)(d), the result

of that sample recount would not have indicated that a full manual recount in the

        The opinion in Roudebush does observe that Indiana, along with many other states, had
found that the availability of a recount was necessary to guard against irregularity and errors in
vote tabulation, and says that “[a] recount is an integral part of the Indiana electoral process and
is within the ambit of the broad powers delegated to the States by Art. I, § 4.” 

92 S.Ct.
at 810 - 11. True enough, but a recount is not any more integral to the electoral process than the
actual election itself, and as we have already seen, Article II, § 4 does not permit states to
conduct elections in a way that violates a specific constitutional provision such as the Equal
Protection Clause. It follows that states cannot conduct recounts in a way that violates that
clause, either.

                                                108
county could affect the outcome of the election. So, even if the Republican Party or

its candidate had requested manual recounts in every punch card county, the

process would still have ended up treating some punch card voters differently

based upon the counties in which they lived. The Constitution forbids that.

      There is a another, more fundamental flaw in the argument that treating

punch card voters differently depending upon the county of their residence is

permissible because the Republican Party or its candidate could have, but did not,

prevent that difference in treatment. The constitutional rights involved are those of

the voters in the other punch card counties. It is their votes and their constitutional

rights at stake. The voters whose constitutional rights are being violated are not

permitted to request a manual recount. See Fla. Stat. § 102.166(4)(a). There is no

loophole in the Constitution that permits what would otherwise be an

unconstitutional action to occur simply because a third party could have, but did

not, prevent it from occurring. Therefore, the fact that both parties were permitted

to request manual recounts does not shield the selective recounts from

constitutional attack.

      Another argument the defendants put forward responds to the criticism of

the previous one. Florida Attorney General Butterworth, who was so concerned in

his November 14, 2000 letter about the “legal jeopardy” that his state would be in


                                          109
if there was a “two-tier” system in which manual recounts occurred in some

counties but not others, a fortnight later filed a brief in this Court telling us there is

nothing to worry about after all. According to Attorney General Butterworth’s

latest position on the subject, manual recounts can be requested or granted under

Fla. Stat. 102.166(4)(a) - (c) in as selective or discriminatory a way as the human

mind can imagine without running afoul of the Constitution. The reason, he says,

is that although a voter cannot request a manual recount at that stage of the election

process, a voter can later file an election contest and try to get the court to conduct

a manual recount as part of that contest.

      That argument is unpersuasive. Even assuming that Florida law provides a

mechanism for individual voters to request manual recounts as part of an election

contest, the practical and legal burdens imposed upon an individual who seeks to

contest an election are entirely different, and far more burdensome, than those that

a party or candidate must meet in order to institute an election contest. A request

filed by a political party or candidate before the results are certified merely has to

set out grounds for a manual recount, and the county canvassing board can grant it.

Fla. Stat. § 102.166(4). An election contest, on the other hand, cannot be filed

until after the last county canvassing board certifies results, see Fla. Stat. §

102.168(2), and once it does, a presumption kicks in and weighs against granting


                                            110
any relief in the contest. Under Florida law, “elected officials are presumed to

perform their duties in a proper and lawful manner in the absence of a sufficient

showing to the contrary,” and “there is a presumption that returns certified by

election officials are presumed to be correct.” Boardman v. Esteva, 

,

268 (Fla. 1976) (citation omitted).

        Besides, there is the problem of time. Election contests cannot be instituted

until “after midnight of the date the last county canvassing board empowered to

canvass the returns certifies the results of the election being contested.” Fla. Stat. §

102.168 (2). That might be enough time in ordinary circumstances to file a contest,

have it litigated through the trial and appellate stages of the state court system, win

the right to a manual recount, have any issues arising in that manual recount be

litigated to conclusion, and have the new result accepted. Maybe, but the

circumstances giving rise to these cases are not ordinary. To begin with, the

effective deadline in this case is not some time next year as it might be with most

elections, but instead is December 12, and the drop-dead deadline is December 18,

2000. Not only that, but the Florida Supreme Court extended the time for the last

county canvassing board to certify its results to the Secretary of State from 7 days

after the election, the time specified in Fla. Stat. §§ 102.111 and 102.112, until

November 26, 2000, which is 19 days after the election. See Harris, ___ So.2d at


                                          111
___, 

, at *16, vacated, Bush v. Palm Beach County Canvassing

Bd., 531 U.S. ___, ___ S. Ct. ___, 

(Dec. 4, 2000) (per curiam).

That cut 12 days out of the period that would otherwise have been provided for

conducting an election contest through to conclusion.

      We know from the inability of Miami-Dade and Palm Beach Counties to

finish the actual manual recounts in even the extended time the Florida Supreme

Court allotted them, that it would have been impossible as a practical matter for a

voter in, for example, Hillsborough County, a punch card county in which 369,467

ballots were cast in the Presidential election, see Chart C, to file an election

contest demanding a manual recount in that county, try the case before the trial

court, succeed on appeal in time for the canvassing board to conduct and complete

a full manual recount, and then have any issues arising in that recount decided. An

election contest under Florida law is not a practical remedy for voters who have

been discriminated against in the Florida Democratic Party’s selection of punch

card counties in which to request a manual recount.

      Even if there were enough time for such manual recounts after the extended

period for the county canvassing boards to report, there is another serious obstacle

to a voter using the Florida election contest procedures to secure a manual recount

in that voter’s county. Except in cases of outright fraud, bribery, or other


                                          112
corruption, or the ineligibility for office of the successful candidate, Florida law

requires that anyone filing an election contest show that correction of the problem

complained about would change the results of the election. See Fla. Stat. §

102.168(3)(c) (“Receipt of a number of illegal votes or rejection of a number of

legal votes sufficient to change or place in doubt the result of the election.”) &

(3)(e) (“Any other cause or allegation which, if sustained, would show that a

person other than the successful candidate was the person duly nominated or

elected to the office.”). If the voter cannot show that the constitutional violation he

suffered changed the result of the election, he has no grounds for contesting the

election under the Florida election statute.

      While Florida’s interest in bottom line election results is certainly expedient,

the Constitution demands more than expediency. It is concerned with values other

than the outcome of elections. To say that it is sufficient to remedy only those

constitutional violations that matter to the political parties and their candidates is to

say the rights of voters themselves do not matter. Can anyone seriously suggest

that the Reynolds v. Sims, Gray v. Sanders, and Moore v. Ogilvie doctrines apply

only when election results would be changed? When the Supreme Court in

Reynolds said, “[t]o the extent that a citizen’s right to vote is debased, he is that

much less a 

, 84 S.Ct at 1384, the Court did not add


                                          113
“unless it makes no difference in the election results.” When the Court said that

“the basic principle of representative government remains, and must remain,

unchanged – the weight of a citizen’s vote cannot be made to depend on where he

lives,” 

Court did not mean for that basic principle to be inapplicable

except where it was outcome determinative for a candidate.

      In Moore there was “absolutely no indication in the record that the

appellants could not, if they had made the effort, have easily satisfied Illinois’ 50-

county, 200-signature requirement,” 

- 21, 89 S. Ct. at

1497(Stewart, J., dissenting). In other words, there was absolutely no indication

that the differential treatment of citizens based upon the counties in which they

lived affected whether any would-be candidate could get on the ballot.

Nonetheless, the Supreme Court did not hesitate to strike down the discrimination

among voters, explaining that “[t]he idea that one group can be granted greater

voting strength than another is hostile to the one man, one vote basis of our

representative government.” 

89 S.Ct. at 1496. The one person, one vote

principle is not so fickle as to depend upon the closeness of an election.

      One last argument relating to the merits which is put forward by several of

the defendants is that there is no constitutional violation in selective manual

recounts based upon county of residence, because there are variations among the


                                          114
counties in election systems and different systems give rise to different error rates.

In other words, unless the Constitution mandates that every county use the same

voting system, it logically cannot prohibit selective correction of error rates in

counties that use the same system. But why not? Why are differences in the

number of vote errors that occur as a result of local variations in choice of vote

systems before an election the constitutional equivalent of selective correction of

errors based upon county of residence after the election?

      There is no reason to believe that any county would attempt to choose for

itself a voting system with a high error rate in order to disadvantage its citizens

compared to those of other counties. There is every reason to believe that political

parties or candidates will selectively choose the counties in which to initiate the

process of manual recounts based upon how those counties voted and their

population. The intent behind the two actions is different. To understand the

importance of that difference, consider this hypothetical. Suppose a state

legislature mandated the type of voting systems to be used in each county, and

deliberately favored urban counties with low-error systems that would keep down

the undervote, while sticking rural counties with high-error systems that would

increase the undervote in those counties thereby reducing their influence in

statewide elections. Maybe the legislature, dominated by members from the more


                                          115
populous counties, just wanted to keep the country folks in their place. Is there

any doubt that such legislation would be unconstitutional under Reynolds and

related cases? It would be unconstitutional even though the discriminatory choice

occurred on the front end, before the election, and even though it involved

variations in the vote systems used in different counties.

      How then can it be constitutionally permissible to make a materially similar,

discriminatory choice on the back end after the election: to favor the voters of

more populous counties who went for one candidate with a process that

ameliorates their undervote, while not applying that process to ameliorate the same

or worse undervote problems in less populous counties that went for the other

candidate? The answer is that it is not constitutionally permissible to discriminate

in favor of the voters of Broward, Palm Beach, and Miami-Dade, or any

combination of those counties, and against the voters in the other 21 punch card

counties when it comes to a post-election remedy of the undervote problem caused

by the voting system technology.

      The Florida Supreme Court reminded us that: “Courts must not lose sight of

the fundamental purpose of election laws: The laws are intended to facilitate and

safeguard the right of each voter to express his or her will in the context of our

representative democracy.” Harris, ___ So.2d at ____, 

, at *13


                                         116
(footnote omitted). But we also must not lose sight of the constitutional guarantee

of equal protection, which prohibits states from selectively facilitating and

safeguarding the rights of voters based upon where they live in the state. Florida’s

election laws, as applied in this case, run afoul of that prohibition.

      Finally, the defendants contend that we need not even decide the merits of

the constitutional claims in this case because the plaintiffs have not suffered an

irreparable injury. They base that assertion on two premises. First, the defendants

maintain that it is inappropriate at this juncture to decide whether permanent

injunctive relief should be issued. I disagree for the reasons I have already stated.

at 71-72, discussing Thornburgh v. Am. Coll. of Obstetricians &

Gynecologists, 

, 755-57, 

, 2176 - 77 (1986). Second,

the defendants maintain that there is no equal protection violation unless and until

the outcome of the election is altered by the inclusion of the manually recounted

ballots in Florida’s certified results. But, as I have already explained, the

constitutional harm is inflicted when the ballots of similarly situated voters are

counted and weighted differently, and that harm exists regardless of the outcome of

the election.

      The standard for a permanent injunction is essentially the same as for a

preliminary injunction except that the plaintiff must show actual success on the


                                          117
merits instead of a likelihood of success. Amoco Prod. Co. v. Village of Gambell,

, 546 n.12, 

, 1404 n.12 (1987). In addition to

succeeding on the merits, a plaintiff must “demonstrate the presence of two

elements: continuing irreparable injury if the injunction does not issue, and the lack

of an adequate remedy at law.” Newman v. State of Ala., 

, 1319

(11th Cir. 1982). Explaining the distinction between “irreparable injury” and

“adequate remedy at law,” our predecessor circuit said:

             [T]he essential prerequisite to a permanent injunction is the
             unavailability of an adequate remedy at law. Irreparable injury is,
             however, one basis, and probably the major one, for showing the
             inadequacy of any legal remedy. . . . Often times the concepts of
             "irreparable injury" and "no adequate remedy at law" are
             indistinguishable. . . . "[T]he irreparable injury rubric is intended to
             describe the quality or severity of the harm necessary to trigger
             equitable intervention. In contrast, the inadequate remedy test looks
             to the possibilities of alternative modes of relief, however serious the
             initial injury.”

Lewis v. S. S. Baune, 

, 1124 (5th Cir. 1976) (citations omitted).

      Here, I believe that the plaintiffs in these two cases have succeeded on the

merits by establishing that the disparate treatment of similarly situated voters

violates the Equal Protection Clause. That constitutional injury to their right to

vote is irreparable, since it “cannot be undone through monetary remedies.”

Cunnigham v. Adams, 

, 821 (11th Cir. 1987), both because of the

unquantifiable nature of the right to vote as well as its fundamental importance in

                                         118
our system of representative democracy. See Reynolds v. Sims, 

,

562, 

, 1381(1964) (the right to vote is "a fundamental political right,

because [it is] preservative of all rights'") (citation and quotations omitted). See

also Northeastern Fla. Chapter of the Assoc. of Gen. Contractors v. City of

Jacksonville, 

, 1285 (11th Cir. 1990) (discussing cases in which this

Court has recognized that an on-going violation of the First Amendment or privacy

rights constitutes irreparable injury, and stating that “[t]he rationale behind these

decisions was that chilled free speech and invasions of privacy, because of their

intangible nature, could not be compensated by monetary damages; in other words,

plaintiffs could not be made whole”).

      Not surprisingly, there is no suggestion by the defendants that there is an

adequate remedy at law to address the voting-rights injury presented in this case.

See Dillard v. Crenshaw County, 

, 1363 (M.D. Ala. 1986)

(“Given the fundamental nature of the right to vote, monetary remedies would

obviously be inadequate in this case; it is simply not possible to pay someone for

having been denied a right of this importance.”). There is an irreparable injury to

the right to vote for which there is no adequate remedy at law. Accordingly,

granting the requested injunctive relief is the only appropriate remedy.




                                          119
                                                 Appendices

                                                 CHART A

                                  All Counties Ranked by Population
                                                                            Total Bush/   Gore
County         Population1   Vote System2   Bush Vote3         Gore Vote4   Gore Vote5    Percentage6

Miami-Dade     2175634       punch          289533             328802       618335        53.18%
Broward        1535468       punch          177323             386561       563884        68.55%
Palm Beach     1049420       punch          152951             269732       422683        63.81%
Hillsborough   940484        punch          180760             169557       350317        48.40%
Pinellas       878499        punch          184823             200629       385452        52.05%
Orange         817206        marksense      134517             140220       274737        51.04%
Duval          738483        punch          152098             107864       259962        41.49%
Brevard        470365        marksense      115185             97318        212503        45.80%
Polk           457347        marksense      90295              75200        165495        45.44%
Volusia        425601        marksense      82357              97304        179661        54.16%
Lee            400542        punch          106141             73560        179701        40.93%
Seminole       357390        marksense      75677              59174        134851        43.88%
Pasco          330704        punch          68582              69564        138146        50.36%
Sarasota       306546        punch          83100              72853        155953        46.71%
Escambia       282432        marksense      73017              40943        113960        35.93%
Marion         245975        punch          55141              44665        99806         44.75%
Manatee        243531        marksense      57952              49177        107129        45.90%
Leon           215926        marksense      39062              61427        100489        61.13%
Lake           209812        marksense      50010              36571        86581         42.24%
Collier        207029        punch          60433              29918        90351         33.11%
Alachua        198484        marksense      34124              47365        81489         58.12%
St. Lucie      181850        marksense      34705              41559        76264         54.49%
Okaloosa       170049        marksense      52093              16948        69041         24.55%
Osceola        150596        punch          26212              28181        54393         51.81%
Bay            147958        marksense      38637              18850        57487         32.79%
Clay           141353        marksense      41736              14632        56368         25.96%
Charlotte      136992        marksense      35426              29645        65071         45.56%
Hernando       128482        marksense      30646              32644        63290         51.58%
Santa Rosa     120952        marksense      36274              12802        49076         26.09%
St. Johns      119685        marksense      39546              19502        59048         33.03%
Martin         118117        lever          33970              26620        60590         43.93%
Citrus         116111        marksense      29766              25525        55291         46.16%
Indian River   100253        punch          28635              19768        48403         40.84%
Monroe         79941         marksense      16059              16483        32542         50.65%
Highlands      74795         punch          20206              14167        34373         41.22%
Putnam         70215         marksense      13447              12102        25549         47.37%
Nassau         56811         punch          16280              6879         23159         29.70%
Columbia       53738         marksense      10964              7047         18011         39.13%
Flagler        49110         marksense      12613              13897        26510         52.42%
Jackson        44549         marksense      9138               6868         16006         42.91%
Gadsden        44077         marksense      4767               9735         14502         67.13%
Sumter         42754         punch          12127              9637         21764         44.28%
Walton         38124         marksense      12182              5642         17824         31.65%
Suwanee        32972         marksense      8006               4075         12081         33.73%
Levy           32386         marksense      6858               5398         12256         44.04%
Okeechobee     32386         marksense      5057               4588         9645          47.57%
Hendry         29463         marksense      4747               3240         7987          40.57%
Bradford       24872         marksense      5414               3075         8489          36.22%

                                                         120
Desoto        24636           punch              4256                3320              7576                  43.82%
Baker         21181           marksense          5610                2392              8002                  29.89%
Hardee        21017           punch              3765                2339              6104                  38.32%
Washington    20614           marksense          4994                2798              7792                  35.91%
Wakulla       19179           punch              4512                3838              8350                  45.96%
Taylor        19049           marksense          4056                2649              6705                  39.51%
Holmes        18761           marksense          5011                2177              7188                  30.29%
Madison       17919           punch              3038                3014              6052                  49.80%
Gilchrist     14056           punch              3300                1910              5210                  36.66%
Gulf          13562           marksense          3550                2397              5947                  40.31%
Jefferson     13090           punch              2478                3041              5519                  55.10%
Dixie         12919           punch              2697                1826              4523                  40.37%
Hamilton      12785           marksense          2146                1722              3868                  44.52%
Union         12720           hand count         2332                1407              3739                  37.63%
Calhoun       12436           marksense          2873                2155              5028                  42.86%
Franklin      9978            marksense          2454                2046              4500                  45.47%
Glades        8693            punch              1841                1442              3283                  43.92%
Liberty       6703            marksense          1317                1017              2334                  43.57%
Lafayette     6477            marksense          1670                789               2459                  32.09%
Total         15111244                           2910492             2910192           5820684               50.00%




1.      1999 Population Estimates, Population Estimates Program, Population Div., U.S. Census Bureau,
        http://www.census.gov/population/estimates/county/co-99-1/99C1_12.txt

2.      "Certified Voting Systems Used in Florida, Table of Methods (by system, by county),"
         provided by Sec. of State from Official Records in Response to Request of Court, Nov. 30, 2000.

3.      Harris', Roberts', and Crawford's Response to Emergency Motion for Injunction Pending Appeal and to Expedite,
        Exhibit A; "2000 General Election Results, Unofficial (Recount Results 11/14/2000)," provided by Sec. of State from
        Official Records in Response to Request of Court, Nov. 30, 2000.

4.      

of "Bush Vote" and "Gore Vote" Totals for Each County

6.      "Gore Vote" Total Divided by "Total Bush/Gore Vote" for Each County




                                                               121
                                                  CHART B

                           Punch Card Counties Ranked by Population
County             Population1      Bush Vote2       Gore Vote3        Total Bush/      Gore
                                                                       Gore Vote4       Percentage5

Miami-Dade          2175634         289533            328802            618335          53.18%
Broward             1535468         177323            386561            563884          68.55%
Palm Beach          1049420         152951            269732            422683          63.81%
Hillsborough        940484          180760            169557            350317          48.40%
Pinellas            878499          184823            200629            385452          52.05%
Duval               738483          152098            107864            259962          41.49%
Lee                 400542          106141            73560             179701          40.93%
Pasco               330704          68582             69564             138146          50.36%
Marion              245975          55141             44665             99806           44.75%
Collier             207029          60433             29918             90351           33.11%
Sarasota            306546          83100             72853             155953          46.71%
Osceola             150596          26212             28181             54393           51.81%
Indian River        100253          28635             19768             48403           40.84%
Highlands           74795           20206             14167             34373           41.22%
Nassau              56811           16280             6879              23159           29.70%
Sumter              42754           12127             9637              21764           44.28%
Desoto              24636           4256              3320              7576            43.82%
Hardee              21017           3765              2339              6104            38.32%
Wakulla             19179           4512              3838              8350            45.96%
Madison             17919           3038              3014              6052            49.80%
Gilchrist           14056           3300              1910              5210            36.66%
Jefferson           13090           2478              3041              5519            55.10%
St. Johns           306546          39546             19502             59048           33.03%
Dixie               12919           2697              1826              4523            40.37%
Glades              8693            1841              1442              3283            43.92%
Total               9365502         1640232           1853067           3493299         53.05%


1.   1999 Population Estimates, Population Estimates Program, Population Div.,
     U.S. Census Bureau, 
2.   Harris', Roberts', and Crawford's Response to Emergency Motion for Injunction Pending Appeal and to
     Expedite, Exhibit A; "2000 General Election Results, Unofficial (Recount Results 11/14/2000)," provided by
     Sec. of State from Official Records in Response to Request of Court, Nov. 30, 2000.
3.   

of "Bush Vote" and "Gore Vote" Totals for Each County
5.   "Gore Vote" Total Divided by "Total Bush/Gore Vote" for Each County




                                                        122
                                           CHART C
                         Punch Card Counties by Percentage of "No Vote"

               Ballots          Presidential         No              Percent         Gore
County         Cast1            Votes Counted2       Votes3          No Votes4       Share5

Glades         3722             3365                 357             9.59%           43.92%
Duval          291626           264636               26990           9.26%           41.49%
Jefferson      6215             5643                 572             9.20%           55.10%
Desoto         8512             7811                 701             8.24%           43.82%
Madison        6642             6162                 480             7.23%           49.80%
Nassau         25387            23581                1806            7.11%           29.70%
Dixie          4998             4666                 332             6.64%           40.37%
Palm Beach     462588           433186               29402           6.36%           63.81%
Hardee         6645             6233                 412             6.20%           38.32%
Gilchrist      5688             5395                 293             5.15%           36.66%
Wakulla        9017             8587                 430             4.77%           45.96%
Miami-Dade     654044           625443               28601           4.37%           53.18%
Indian River   51559            49622                1937            3.76%           40.84%
Sumter         23032            22261                771             3.35%           44.28%
Collier        95325            92141                3184            3.34%           33.11%
Osceola        57341            55658                1683            2.94%           51.81%
Marion         106001           102956               3045            2.87%           44.75%
Highlands      36158            35149                1009            2.79%           41.22%
Pasco          146648           142731               3917            2.67%           50.36%
Broward        588007           573396               14611           2.48%           68.55%
Hillsborough   369467           360295               9172            2.48%           48.40%
Lee            188978           184377               4601            2.43%           40.93%
Pinellas       406956           398469               8487            2.09%           52.05%
Sarasota       163749           160942               2807            1.71%           46.71%
Total          3718305          3572705              145600          3.92%           53.05%


1. "Voter Turnout (November 15, 2000)," provided by the Sec. of State from Official Records in
   Response to Request of Court, November, 30, 2000.
2. 

4. 

Vote" Total Divided by "Total Bush/Gore Vote" for Each County, based on figures from
   Harris', Roberts', and Crawford's Response to Emergency Motion for Injunction Pending Appeal and to
   Expedite, Exhibit A; "2000 General Election Results, Unofficial (Recount Results 11/14/2000),"
   provided by Sec. of State from Official Records in Response to Request of Court, Nov. 30, 2000.




                                                    123
                                         CHART D
                      Punch Card Counties by Percentage of Citizens 65+

                                     Population    Percent              Gore
County             Population1       65+2          65+3                 Share4

Highlands          74795             27042         36.15%               41.22%
Sarasota           306546            98225         32.04%               46.71%
Indian River       100253            28851         28.78%               40.84%
Pasco              330704            87190         26.36%               50.36%
Collier            207029            52999         25.60%               33.11%
Lee                400542            102530        25.60%               40.93%
Marion             245975            62122         25.26%               44.75%
Palm Beach         1049420           253796        24.18%               63.81%
Pinellas           878499            203070        23.12%               52.05%
Desoto             24636             4970          20.17%               43.82%
Glades             8693              1687          19.41%               43.92%
Sumter             42754             7873          18.41%               44.28%
Broward            1535468           258033        16.80%               68.55%
Dixie12919         2137              16.54%        40.37%
Hardee             21017             3245          15.44%               38.32%
Miami-Dade         2175634           310642        14.28%               53.18%
Madison            17919             2458          13.72%               49.80%
Jefferson          13090             1783          13.62%               55.10%
Gilchrist          14056             1894          13.47%               36.66%
Osceola            150596            20265         13.46%               51.81%
Nassau             56811             7492          13.19%               29.70%
Hillsborough       940484            119047        12.66%               48.40%
Wakulla            19179             2380          12.41%               45.96%
Duval              738483            77976         10.56%               41.49%
Total              9365502           1737707       18.55%               53.05%




1    1999 Population Estimates, Population Estimates Program, Population Div.,
     U.S. Census Bureau, 

3.   "Population 65+" Divided by "Population"

4.   "Gore Vote" Total Divided by "Total Bush/Gore Vote" for Each County, based on figures from
     Harris', Roberts', and Crawford's Response to Emergency Motion for Injunction Pending Appeal and
     to Expedite, Exhibit A; "2000 General Election Results, Unofficial (Recount Results 11/14/2000),"
     provided by Sec. of State from Official Records in Reponse to Request of Court, Nov. 30, 2000.




                                                    124
                                              CHART E

                       Punch Card Counties by Percentage of Black/Hispanic


                           Total        Total             Total Black/   Percentage         Gore
County         Population1 Black2       Hispanic3         Hispanic4      Black/Hispanic5    Share6

Miami-Dade     2175634      443024      1249358          1692382         77.79%             53.18%
Jefferson      13090        6387        357              6744            51.52%             55.10%
Madison        17919        8343        383              8726            48.70%             49.80%
Hardee         21017        1610        6457             8067            38.38%             38.32%
Hillsborough   940484       144031      171813           315844          33.58%             48.40%
Duval          738483       210757      28934            239691          32.46%             41.49%
Desoto         24636        4480        3311             7791            31.62%             43.82%
Broward        1535468      285918      196581           482499          31.42%             68.55%
Glades         8693         1476        1027             2503            28.79%             43.92%
Sumter         42754        9381        1866             11247           26.31%             44.28%
Palm Beach     1049420      155763      117114           272877          26.00%             63.81%
Osceola        150596       10320       26500            36820           24.45%             51.81%
Collier        207029       11860       38413            50273           24.28%             33.11%
Marion         245975       36550       11282            47832           19.45%             44.75%
Highlands      74795        8671        5554             14225           19.02%             41.22%
Wakulla        19179        2991        179              3170            16.53%             45.96%
Lee            400542       32270       27222            59492           14.85%             40.93%
Indian River   100253       10205       4463             14668           14.63%             40.84%
Nassau         56811        7147        1002             8149            14.34%             29.70%
Pinellas       878499       85019       32647            117666          13.39%             52.05%
Gilchrist      14056        1302        332              1634            11.62%             36.66%
Dixie          12919        1216        179              1395            10.80%             40.37%
Sarasota       306546       16386       10039            26425           8.62%              46.71%
Pasco          330704       8494        18013            26507           8.02%              50.36%
Total          9365502      1503601     1953026          1204826         12.86%             53.05%


1. 1999 Population Estimates, Population Estimates Program, Population Div.,
   U.S. Census Bureau, 

2. "Population Estimates for Counties by Race and Hispanic Origin: July 1, 1999," Population Estimates
    Program, Population Div., U.S. Census Bureau,
   

3. 

of "Total Black" and "Total Hispanic"

5. "Total Black/Hispanic" Divided by "Population"

6. "Gore Vote" Total Divided by "Total Bush/Gore Vote" for Each County, based on figures from
   Harris', Roberts', and Crawford's Response to Emergency Motion for Injunction Pending Appeal and
   to Expedite, Exhibit A; "2000 General Election Results, Unofficial (Recount Results 11/14/2000),"
   provided by Sec. of State from Official Records in Response to Request of Court, Nov. 30, 2000.



                                                       125
                                      CHART F

         Marksense (Optical Scan) Counties by Percentage of "No Votes"

                           Ballots   Presidential     No       Percent     Gore
County       Population1   Cast2     Votes Counted3   Votes4   No Votes5   Share6

Gadsden      44077         16812     14727            2085     12.40%      67.13%
Hendry       29463         8950      8139             811      9.06%       40.57%
Hamilton     12785         4353      3964             389      8.94%       44.52%
Franklin     9978          5070      4644             426      8.40%       45.47%
Taylor       19049         7413      6808             605      8.16%       39.51%
Okeechobee   32386         10722     9853             869      8.10%       47.57%
Bradford     24872         9414      8673             741      7.87%       36.22%
Liberty      6703          2598      2410             188      7.24%       43.57%
Jackson      44549         17470     16300            1170     6.70%       42.91%
Lafayette    6477          2679      2505             174      6.49%       32.09%
Levy         32386         13490     12724            766      5.68%       44.04%
Suwanee      32972         13189     12457            732      5.55%       33.73%
Charlotte    136992        70100     66896            3204     4.57%       45.56%
Washington   20614         8353      8025             328      3.93%       35.91%
Lake         209812        92046     88611            3435     3.73%       42.24%
Escambia     282432        121141    116648           4493     3.71%       35.93%
Columbia     53738         19206     18508            698      3.63%       39.13%
Holmes       18761         7541      7395             146      1.94%       30.29%
Baker        21181         8300      8154             146      1.76%       29.89%
Calhoun      12436         5256      5174             82       1.56%       42.86%
Manatee      243531        111676    110221           1455     1.30%       45.90%
Bay          147958        59520     58805            715      1.20%       32.79%
Walton       38124         18537     18318            219      1.18%       31.65%
Okaloosa     170049        71512     70680            832      1.16%       24.55%
St. Johns    119685        61313     60746            567      0.92%       33.03%
St. Lucie    181850        78709     77989            720      0.91%       54.49%
Orange       817206        282529    280125           2404     0.85%       51.04%
Putnam       70215         26416     26222            194      0.73%       47.37%
Santa Rosa   120952        50684     50319            365      0.72%       26.09%
Clay         141353        57764     57353            411      0.71%       25.96%
Monroe       79941         34095     33887            208      0.61%       50.65%
Union        12720         4084      3826             258      6.32%       37.63%
Polk         457347        169582    168607           975      0.57%       45.44%
Alachua      198484        86144     85729            415      0.48%       58.12%
Citrus       116111        57468     57203            265      0.46%       46.16%
Hernando     128482        65500     65219            281      0.43%       51.58%
Flagler      49110         27194     27111            83       0.31%       52.42%
Volusia      425601        184153    183653           500      0.27%       54.16%
Brevard      470365        218989    218395           594      0.27%       45.80%
Leon         215926        103388    103124           264      0.26%       61.13%
Seminole     357390        137970    137634           336      0.24%       43.88%
Total        5614905       2353811   2320099          33712    1.43%       45.47%




                                               126
1.   1999 Population Estimates, Population Estimates Program, Population Div., U.S. Census Bureau,
     

2.   "Voter Turnout (November 15, 2000)," provided by the Sec. of State from Official Records in
     Response to Request of Court, November, 30, 2000.

3.   

5.   

Vote" Total Divided by "Total Bush/Gore Vote" for Each County, based on figures from
     Harris', Roberts', and Crawford's Response to Emergency Motion for Injunction Pending Appeal and
     to Expedite, Exhibit A; "2000 General Election Results, Unofficial (Recount Results 11/14/2000),"
     provided by Sec. of State from Official Records in Response to Request of Court, Nov. 30, 2000.




                                                     127