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Supreme Court of the United States No. IN THE Supreme Court of the United States NED L. SIEGEL, ET AL., Petitioners, v. THERESA LEPORE, ET AL., Respondents. On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit PETITION FOR A WRIT OF CERTIORARI BENJAMIN L. GINSBERG THEODORE B. OLSON PATTON BOGGS LLP Counsel of Record 2550 M Street, N.W. DOUGLAS R. COX Washington, D.C. 20037 THOMAS G. HUNGAR (202) 457-6000 MARK A. PERRY GIBSON, DUNN & CRUTCHER LLP GEORGE J. TERWILLIGER III 1050 Connecticut Avenue, N.W. TIMOTHY E. FLANIGAN Washington, D.C. 20036 MARCOS D. JIMÉNEZ (202) 955-8500 WHITE & CASE LLP 200 South Biscayne Blvd. BARRY RICHARD Suite 4900 GREENBERG TRAURIG, P.A. Miami, Florida 33131 101 East College Avenue (305) 371-2700 Post Office Drawer 1838 Tallahassee, FL 32302 (850) 222-6891 Counsel for Petitioners i QUESTION PRESENTED Whether the use of selective, arbitrary, and stan- dardless manual recounts that threaten to overturn the results of the election for President of the United States violates the Equal Protection Clause, the Due Process Clause, and the First Amendment. ii PARTIES TO THE PROCEEDING The following individuals and entities are parties in the court below: Ned L. Siegel, Georgette Sosa Douglas, Gonzalo Dorta, Carretta King Butler, Dalton Bray, James S. Hig- gins, and Roger D. Coverly, as Florida registered voters; Governor George W. Bush and Dick Cheney, as candi- dates for President and Vice President of the United States of America; Theresa LePore, Charles E. Burton, Carol Roberts, Jane Carroll, Suzanne Gunzburger, Robert Lee, David Leahy, Lawrence King, Jr., Miriam Lehr, Michael McDermott, Deannie Lowe, and Jim Ward, in their official capacities as members of the County Canvassing Boards of Palm Beach, Miami- Dade, Broward and Volusia Counties, respectively; Florida Democratic Party; Robert A. Butterworth, as At- torney General of Florida; Kenneth A. Horowitz, Cath- erine Ann Bowser, Sylvia Szymoniak, Joseph Morris, Karilee Halo Shames, Leona Jacques, and Laura Hamil- ton, as Palm Beach County voters. iii TABLE OF CONTENTS Page QUESTION PRESENTED..................................................i PARTIES TO THE PROCEEDING .................................ii OPINIONS BELOW ...........................................................1 JURISDICTION ..................................................................2 CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED...................................................4 STATEMENT OF THE CASE..........................................4 A. Factual Background .......................................6 1. The Presidential Election.......................6 2. The Selective Manual Recounts............7 1. Physical Manipulation And Degradation Of Ballots...........................9 2. Irregularities In Counting Methods ..................................................10 3. Political Pressure...................................13 B. Proceedings In The District Court..............13 C. Proceedings On Appeal ...............................14 REASONS FOR GRANTING THE WRIT...................15 I. Review Is Warranted Because The Questions Presented Are Of Imperative Public Importance, And Review By This Court Is Essential To Bring Finality And Legitimacy To The Presidential Election.........15 II. Review Is Warranted Because The Lower Courts’ Refusal To Halt The Arbitrary, Standardless And Selective iv TABLE OF AUTHORITIES—Continued Page(s) Manual Recounts Conflicts With Decisions Of This And Other Courts................16 A. The Manual Recount Constitutes a Violation of Equal Protection.....................16 B. The Manual Recount Violates Due Process...........................................................19 C. The Manual Recount Violates The First Amendment ..........................................23 CONCLUSION..................................................................24 PETITION FOR A WRIT OF CERTIORARI Petitioners Ned L. Siegel, Georgette Sosa Douglas, Gonzalo Dorta, Carretta King Butler, Dalton Bray, James S. Higgins, and Roger D. Coverly (collectively, the “Voter Plaintiffs”), George W. Bush, and Dick Che- ney respectfully pray that a writ of certiorari before judgment be issued in this case, which is now pending before the United States Court of Appeals for the Elev- enth Circuit. Petitioners are Florida voters and the Re- publican Party candidates for President and Vice Presi- dent of the United States. Those candidates—George W. Bush and Dick Cheney—have received the most votes cast by Floridians in the Presidential election held November 7, 2000. Nonetheless, in clear violation of the federal Constitution, the Supreme Court of Florida has barred the responsible state officials from certifying Governor Bush and Mr. Cheney as the prevailing candi- dates in the election in accordance with the popular vote, thereby placing in jeopardy the ability of Florida’s duly appointed presidential electors to cast their votes on De- cember 18, 2000. Petitioners seek this Court’s immedi- ate review of the unconstitutional procedures that are currently being used in Florida in an apparent effort to change the outcome of the Presidential election. Time is of the essence in this case, which raises important ques- tions of historical significance. OPINIONS BELOW The order of the United States Court of Appeals for the Eleventh Circuit denying an injunction pending ap- peal (App., infra, 37a-46a) is not reported. The opinion of the United States District Court for the Southern Dis- trict of Florida denying a preliminary injunction (App., infra, 1a-26a) is not reported. 2 JURISDICTION The judgment of the district court was entered on November 13, 2000. App., infra, 26a. A timely notice of appeal to the United States Court of Appeals for the Eleventh Circuit was filed on November 14, 2000. App., infra, 28a. This petition is filed under this Court’s Rule 11. The court of appeals, in which this case has been duly docketed, has entered interim orders in this case but has not yet entered judgment, and has directed all parties to file additional briefs during the week of November 27, 2000. The court today announced that if oral argument is scheduled, it would take place on November 29, 2000. Due to the importance and time-sensitivity of this ap- peal, as recently heightened by the decision of the Su- preme Court of Florida in a related case, petitioners are seeking issuance of a writ of certiorari before judgment in the court of appeals. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1) (which provides that this Court may exercise certiorari jurisdiction “before or after rendition of judgment or decree” by a federal court of appeals). See also 28 U.S.C. § 2101(e) (“An applica- tion to the Supreme Court for a writ of certiorari to re- view a case before judgment has been rendered in the court of appeals may be made at any time before judg- ment”). Petitioners recognize that this Court only rarely grants certiorari before judgment. This case, however, is extraordinary. For two weeks, the outcome of the No- vember 7, 2000 presidential election has been uncertain due almost entirely to the lack of a certified winner in the State of Florida. This is true despite the fact that Gov. Bush and Mr. Cheney have garnered more of the votes cast in Florida than their opponents, as initially counted and as recounted (and, in many cases, recounted again and again). Nevertheless, state election officials have been precluded by the state courts from certifying the results of the election (thus preventing any contests 3 from being lodged under Florida law) and documenting the appointment of electors in accordance with the vote, pending the completion of a selective, arbitrary, and standardless manual recount of ballots cast in only three heavily populated, predominantly Democratic counties selected by Florida Democrats. This Court’s Rule 11 recognizes that certiorari be- fore judgment may be granted “upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.” For the reasons outlined above and discussed in more detail below, this is plainly such a case. The election of our Nation’s highest elective office may turn on the Court’s resolu- tion of the issues presented. And, due to the protean na- ture of the state-court proceedings, this Court’s immedi- ate intervention is warranted in order to ensure that the rule of law is adhered to in this time of great national concern. As the intense public interest in this issue will attest, this case presents questions of similar magnitude to those in which the Court has previously granted cer- tiorari before judgment. See, e.g., Dames & Moore v. Regan, 453 U.S. 654, 668 (1981); United States v. Nixon, 418 U.S. 683, 686-87 (1974); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952); Ex parte Quirin, 317 U.S. 1, 18-19 (1942). Petitioner George W. Bush has separately petitioned this Court to review the November 21, 2000 decision of the Florida Supreme Court raising closely related ques- tions. Bush v. Palm Beach County Canvassing Board, No. 00-____ (filed contemporaneously herewith). In the event the Court grants certiorari in that case, it would be appropriate also to grant review in this case in order that all the issues can be resolved at once. See Taylor v. McElroy, 360 U.S. 709, 710 (1959); Brown v. Board of Education, 344 U.S. 1, 3 (1952). 4 CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED The Fourteenth Amendment
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