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UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA

NED L. SIEGEL, GEORGETTE SOSA DOUGLAS, GONZALO DORTA, CARRETTA KING BUTLER, DALTON BRAY, JAMES S. HIGGINS, and ROGER D. COVERLY, as Florida registered voters,

and

GOVERNOR GEORGE W. BUSH and DICK CHENEY, as candidates for President and Vice President of the United States of America,

Plaintiffs,

vs.

THERESA LePORE, CHARLES E. BURTON, CAROL ROBERTS, JANE CARROLL, SUZANNE GUNZBURGER, ROBERT LEE, DAVID LEAHY, LAWRENCE KING, JR., MIRIAM LEHR, MICHAEL McDERMOTT, ANN McFALL, and PAT NORTHY, in their official capacities as members of the County Canvassing Boards of Palm Beach, Miami-Dade, Broward and Volusia Counties, respectively,

Defendants.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Plaintiffs, by their counsel, seeking declaratory and injunctive relief against defendants, state the following:

INTRODUCTION
1. This lawsuit is brought to preserve the integrity, consistency, equality, and finality of the most important civic action that Americans take: their votes in an election for the President of the United States. It is brought reluctantly, because the election of the President is properly left to the people, not the courts. But it is necessary because the current course of events threatens to undermine that democratic process,

2. The Constitution and laws of the United States and the laws of Florida prescribe a process for selecting electors of the President and Vice President of the United States. Pursuant to those requirements, the people cast their votes on November 7, 2000. The votes (other than the overseas absentee ballots) were counted in Florida and Governor George W. Bush and Dick Cheney received the most votes.

3. Because the margin was less than one-half of one percent, Florida law required an automatic recount. After completion of this automatic recount, Governor George W. Bush and Dick Cheney again received the most votes.

4. There is no allegation or evidence of voter fraud, or of coercion or corruption. There is thus no basis for further recounts.

5. Not content, however, with the results of the first and second counts, certain individuals and groups have now launched a series of legal and administrative actions to delay and ultimately attempt to change the electoral result. This action could nullify the first and second ballot counts and alter the results of those counts by means of a third round of manual counts. Those manual counts would not be universal, rather they would be limited to selected ballots in selected counties.

6. Though perhaps carried out with the best intentions, the manual counts would not be more accurate than the automated counts - indeed, they are less fair and accurate. Human error and individual subjectivity would replace precision machinery in tabulating millions of small marks and fragile hole punches. If this recount does not yield the desired result, perhaps another, in yet another county, might. Indeed, the process appears to permit repeated counts. And no uniform procedures or standards govern when or how it might happen.

7. The problems of inherent unreliability and subjectivity of manual counts are magnified in this case where the shifting of a few votes could determine the outcome of this Presidential election.

8. At some point, Florida voters - indeed all Americans - areentitled to certainty and finality. If enough human hand counts are conducted, with enough potential human error, the result could presumably change - and perhaps even change back. But the changed result would not be the most accurate result, simply the most recent one. The official count, on Election Day, yielded a final answer through a counting process that was untainted by fraud or misconduct. The official rccount, two days later, confirmed that result.

9. Both counts have been by the most accurate means available. Further recounts, by human hand until the results are different, will not further the interests of the voters or of the naion. They will not further, but rather will undermine, the integrity of the election. This court's intervention is necessary to protect the integrity of the constitutional process for selecting the President of the United States.

PRELIMINARY STATEMENT

10. This is a civil action for dcclaratory and injunctive relief under the First and Fourtteenth Amendments to the United States Constitution, and 42 U.S.C. § 1983. This action now seeks to prevent further and needless recounts of the ballots in the statewide election of November 7, 2000 and to require the certification and release of the twice-counted vote tallies. Absent a showing of fraud, corruption, or coercion in the voting process by Defendants, such remedies should be ordered to avoid the debasement of Plaintiffs' votes and the voting process in the State of Florida.

JURISDICTION AND VENUE

11. This is a civil action for declaratory and injunctive relief under Section I of the Civil Rights Act of 1871, 17 Stat. 13, 42 U.S.C. § 1983, and the First and Fourteenth Amendments to the United States Constitution.

12. The jurisdiction of this Court is based on 28 U.S.C. §§ 1331 and 1343.

13. Venue is proper in this Court because at least one of the Defendants resides within the Southern District of Florida and all of the Defendants reside within the State of Florida. 28 U.S.C. § 1391(b).

PARTIES

14. Plaintiffs Governor George W, Bush and Dick Cheney arr the Republican candidates for President and Vice President of the United States. Plaintiffs Bush and Cheney have a substantial constitutional interest in having the votes certified and released without further delay, as Defendants' decision to permit further recounts violate the due process rights of Governor George W. Bush and Dick Cheney.

15. Plaintiff Ned L. Siegel is a resident of Palm Beach County, Florida, and is a registered voter in Florida. In the general election on Tuesday, November 7, 2000, Plaintiff Siegel sought to cast his ballot for Governor George W. Bush for President of the United States and Dick Cheney as Vice President of the United States.

16. Plaintiff Georgette Sosa Douglas is a resident of Broward County, Florida, and is a registered voter in Florida. In the general election held on Tuesday, November 7, 2000, Plaintiff Sosa Douglas sought to cast her ballot for Govemor George W. Bush and Dick Cheney as President and Vice President of the United States.

17. Plaintiff Gonzalo Dorta is a resident of Miami-Dade County, Florida, and is a registered voter in Florida. In the general election held on Tuesday, November 7, 2000, Plaintiff Dorta sought to cast his ballot for Govemor George W. Bush and Dick Cheney as President and Vice President of the United States.

18. Plaintiff Carretta King Butler is a resident of Volusia County, Florida, and is a registered voter in Florida. In the general election held on Tuesday, November 7, 2000, Plaintiff King Butler sought to cast her ballot for Governor George W. Bush and Dick Cheney as President and Vice President of the United States.

19. Plaintiff Dalton Bray is a resident of Clay County, Florida, and is a registered voter in Florida. In the general election held on Tuesday, November 7, 2000, Plaintiff Bray sought to cast his ballot for Governor George W. Bush and Dick Cheney as President and Vice President of the United States.

20. Plaintiff James S. Higgins is a resident of Martin County, Florida, and is a registered voter in Florida. In the general election held on Tuesday, November 7, 2000, Plaintiff Higgins sought to cast his ballot for Govemor George W. Bush and Dick Cheney as President and Vice President of the United States. 21. Plaintiff Roger D. Coverly is a resident of Seminole County, Florida, and is a registered voter in Florida. In the general election held on Tuesday, November 7, 2000, Plaintiff Coverly sought to cast his ballot for Governor George W. Bush and Dick Cheney as President and Vice President of the United States.

22. The above-named Plaintiffs, Siegel, Douglas, Dorta, Butler, Bray, Higgins and Coverly (the 'Voter Plaintiffs'), are typical of Florida voters who were registered and eligible to vote in the November 7 statewide election. Their validly cast ballots have now been counted twice. The Voter Plaintiffs have a substantial constitutional interest in having those votes certified and released without further delay. The Voter Plaintiffs also have a substantial constitutional interest in not having these votes debased by further recounts that are in no way linked to any showing of fraud or material irregularities in the voting process. The Voter Plaintiffs' claims are typical of those of all voters.

23. Defendants Barton, LePore, and Roberts are the members of the Palm Beach County canvassing board. Defendants Leahy, King, and Lehr are the members of the Miami-iDade County canvassing board. Defendants Carroll, Gunzburger, and Lee are the members of the Broward County canvassing board. Defendants McDermott, McFall, and Northy are the members of the Volusia County canvassing board. Defendants are all residents of the State of Florida and are sued in their official capacities only.

FACTUAL BACKGROUND

24. On November 7, 2000, the State of Florida held a general election wherein Florida voters cast ballots for several offices, including to choose electors of the President and Vice President of the United States.

25. On Novcmber 8, 2000, the Division of Elections for the State of Florida reported that the Republican Party presidential ticket received 2,909,135 (48.8%) votes and the Democratic Party presidential ticket received 2,907,351 (48.8%) votes (the 'initial count'). Other candidates on the presidential ballot received a total of 139,616 votes.

26. Under Florida law, at the close of a general election the election boards for each precinct are to open the ballot boxes in the presence of the public and count the ballots. Florida Statute 102.061. The election boards for each precinct must then deliver to the supervisor of elections for each county the ballots and ballot boxes, as well as a certificate of the results of the election. Florida Statute 102.061.

27. Pursuant to Florida Statute 102.112, after each county's canvassing board has certified the returns, the returns for the election of federal or state officers must be forwarded to the Florida Department of State no later than 5 p.m. on the seventh day following the election, Otherwise, the returns may be ignored.

28. Florida Statutes 102.111 and 102.121 provide that the Elections Canvassing Commission of the State of Florida must then certify the results of the election and issue ccrifficates of the results of the election.

29. Florida Statute 102.141(4) provides that if a candidate is defeated or eliminated by one-half percent or less of the votes cast for an office, then the Elections Canvassing Commission shall order a recount of the votes cast with respect to that office.

30. On November 8, pursuant to Florida Statute 102.141(4), each of the canvassing commissions of Florida's sixty-seven counties began a recount of the returns. Media reports indicate that the recount has confirmed the outcome of the election.

31. The multiple counting of the returns has raised several issues. For example, in at least one county (Gadsden County), the ballots were not merely recounted but rather 'interpreted' - or reinterpreted - by the county's canvassing board. This resulted in additional ballots being counted. This recount calculated a result different from that of the original count, resulting in a net gain of 153 votes in favor of the Democratic presidential ticket. See Exhibit A (Statements of John M. Leace and Edgar E. Stanton).

32. It is also clear that the repetitive counting of ballots - especially manual counting diminishes the accuracy of the counts.

33. On November 8, 2000, while the automatic statewide recount was continuing, three local Democratic Party operatives filed an action styled as Fladell v. Palm Beach County Commission in the Circuit Court for the Fifteenth Judicial Circuit of the State of Florida, contesting the presidential election returns in Palm Beach County. This action sought to void the presidential election results in Palm Beach County and requested that a new election be conducted in that jurisdiction for that race. See Exhibit B.

34. In addition to Defendants' conduct, upon information and belief, numerous lawsuits and other litigation have been commenced across Florida purporting to challenge the result of the election in Florida or otherwise delay the certification and release of those results.

a. On November 9, 2000, while the automatic statewide recount was still continuing, an action, styled as Rogers v. Elections Canvassing Commission of the State of florida was also filed in the Circuit Court for the Fifteenth Judicial Circuit of the State of Florida, also contesting the presidential election returns in Palm Beach County, and seeking the same relief as that of Fladell. (Exhibit C. b. On November 9, 2000, while the automatic statewide recount was still continuing, a complaint styled as Miller v. Harris was filed in the United States District Court for the Southern District of Florida, West Palm Beach Division. This action also contested the presidential election results in Palm Beach County and sought a new election in that jurisdiction. (Exhibit D).

c. Media reports have indicated that as many as five (5) additional lawsuits relating to the results of the election have been filed. Plaintiffs have not been able to obtain copies of these suits.

35. The gravamen of Fladell, Rogers, and Miller is that the presidential election ballot used in Palm Beach County was 'deceptive, misleading and/or confusing,' and that the results of the election werc therefore invalid.

36. On November 9, 2000, again while the automatic statewide recount was still continuing, media reports indicated that either the Gore campaign, the Democratic party and/or some other entity or individual had filed requests for manual recounts of ballots in Palm Beach, Miami-Dade, Broward, and Volusia counties.

37. Florida Statute 102.166 provides that any candidate or his party may file a written request with a county canvassing board for a manual recount within 72 hours after midnight of the date of the election or prior to the time the canvassing board adjourns, whichever occurs later. Florida Statute 102.166 further provides that a county canvassing board need only make a 'reasonable effort' to notify each candidate whose race is being manually recounted of the time and date of the recount. The statute does not require that an opposing candidate or party be notified of the request for the manual recount or the canvassing board's ruling as to the request, and/or the time and date upon which any manual recount will take place.

38. Florida Statute 102.166 requires that the request for a manual recount 'contain a statement of the reason the manual recount is being requested.' Florida Statute 102.166(4)(a).

39. Florida Statute 102.166 neither requires nor suggests that an opposing candidate or party be given the opportunity to be heard as to whether a manual recount should occur. The statute apparently gives the county canvassing board complete discretion in making that decision, and it sets forth no standards for the determination of whether a manual recount should take place.

40. The canvassing boards of Palm Beach and Volusia counties have consented to the request for a manual recount. Both Volusia and Palm Beach Counties will begin manual recounts by Saturday, November 11, 2000.

41. The canvassing boards of Miami-Dade and Broward counties have received requests from the Gore campaign and/or others to conduct a manual recount of the election results. Upon information and belief, those canvassing boards have not yet determined whether they will consent to a manual recount.

IRREPARABLE INJURY

42. If Defendants' threatened manual recounts are allowed to proceed, Plaintiffs will suffer irreparable injury. If an unlawful recount occurs, in violation of the First and Fourteenth Amendments, and a changed result happens to occur (however unlikely), that tainted result will be broadcast to the nation. Any subsequent invalidation by this Court will not be able to cure the serious damage to the legitimacy of the presidential election. Any such taint, and the perception of multiple reversals in outcome, will interfere with the orderly transition of constitutional government.

FIRST CLAIM FOR RELIEF
(Violation of 42 U.S.C. § 1983 and the Fourteenth Amendment)

43. Plaintiffs repeat and reallege paragraphs 1-42.

44.Defendants' actions have violated the Voter Plaintiffs' rights under the Fourteenth Amendment by arbitrarily denying them the effective exercise of their right to vote and to have that vote counted in an equal and consistent fashion with all other voters in this election. The citizens of Florida cast their votes on November 7, 2000. These votes were counted according to the processes prescribed by law, with no allegation of fraud, error, or other misconduct in the conduct of the counting. In accordance with a vote count conducted pursuant to the laws of Florida, Governor George W. Bush and Dick Cheney were determined to have received the most votes. Pursuant to Fla. Statute 102.141(4), an automatic recount was conducted with the participation of local officials of both political parties. Again, there was no allegation that the counting was infected by fraud, error, or other misconduct, and Governor George W. Bush and Dick Cheney once again received the most votes. Pursuant to requests by certain individuals and voters, county officials in Palm Beach, Miami-Dade, Broward, and Volusia counties have begun or will shortly begin yet a third count of the ballots cast, this time manually.

45. Florida law, as applied to these circumstances, threatens to inflict irreparable injury on the Voter Plaintiffs and on all similarly situated voters by arbitrarily denying full effect to the votes that they cast on November 7, 2000. It does so in the following ways. First, the provisions of Florida Statute 102.166 provide no standards to guide the discretion of the canvassing board in determining whether a manual recount is warranted in the first place or, if so, what the scope, nature, manner, and method of such recount should be. For example, one county canvassing board has been asked to and has apparent discretion to grant a recount for three precincts only; three others have been asked and has(?tense) discretion to grant a recount for the entire county. There is nothing in the statute to constrain the county canvassing boards' discretion as to how many precincts (beyond a minimum of three precincts) to recount. There is no rational basis for distinguishing which counties or precincts to recount, other than the unconstrained determination of the applicant that he may get more votes from those precincts selected.

46. Second, Florida Statute 102.166 establishes no criteria to limit the discretion of the canvassing boards in determining how to conduct the tally of votes. One canvassing board may decide to count votes that are not fully punched; another may not. One canvassing board may decide that a stray mark indicates an intent to vote for a particular candidate; another board may not. One board may try to determine the intent of voters who marked multiple candidates on a ballot; another may not. Florida Statute 102.166 authorizes the county canvassing board to determine the subjective 'intent' of a voter, without setting forth any standards for determining how to discern that intent. This creates arbitrariness in the implementation of a process that concerns the fundamental right to vote.

47. Third, if a manual recount gives effect to partially punched ballots, or counts ambiguous ballots based on the canvassing boards' subjective interpretation of voters' intent, it has the effect of unconstitutionally diluting the votes of the other voters both in the affected county and in the counties not subject to recount. 48. Because of this arbitrary and unconstrained decision-making authority conferred upon the county canvassing boards, a disappointed candidate in a close election can seek rccounts in successive favorable jurisdictions until he is satisfied with the results, and thereby arbitrarily deny the force and effect of the votes cast and validly counted (and verified on recount) for the winning candidate.

49. There is no reason to believe that a recount is more accurate than the initial count, or that subsequent recounts add any further accuracy. In fact, empirical evidence indicates otherwise: that recounts diminish accuracy with each recount. Ballots are degraded, and human error is common. Thus, without any guarantee of increased accuracy, and at the virtually certain risk of increased inaccuracy, canvassing boards are given unbridled discretion to affect the results of an election through individual subjective decisions.

50. And natural human error and subjectivity are not the only risks. In an ordinary presidential election, where all votes occur on the same day and are tallied simultaneously, no one election official perceives his or her actions could materially affect the outcome of the election. In these unique circumstances, however, the incentives for favoritism or worse - in the hopes that a small swing of votes could determine the President - are grossly magnified in a manual recount where individual counters have direct and subjective contact with the ballots.

51. This potential for delay and uncertainty inherent in the above-described scheme is compounded by its interaction with Florida Statute 102.168. That statute creates a means to carry on contests of election in the relevant circuit courts. Such contests may be filed by any candidate, any voter, or even any taxpayer. Such contests threaten to further delay the effective implementation of the ballots cast by Florida voters and increase the uncertainty that now exists with respect to the result of the election. Different challenges may be filed in different courts. There is a virtual certainty that different courts will react differently to similar claims.

52. As a result, the process of selecting and certifying the decisive electors of the President and Vice President of the United States may be tied up in trial litigation and appellate litigation indefinitely, casting doubt on the integrity and legitimacy of the process for selecting the holder of the highest office in the land. This circumstance, when combined with the arbitrary discretion vested in the canvas boards - if allowed to proceed unchecked - threatens to prevent the smooth and clear transition of Presidential power, a matter of paramount national interest.

53. This unbridled discretion, as applied in the circumstances of this case, results in the arbitrary deprivation of the Voter Plaintiffs’ right to vote under the Fourteenth Amendment.

SECOND CLAIM FOR RELIEF
(Violation of 42 U.S.C. § 1983: Equal Protection)

54. Plaintiffs repeat and reallegc paragraphs 1-42 and 44-47.

55. Because, for the reasons discussed, the statutory scheme produces arbitrary and capricious decision-making by state and county officials as to whose votes will count, and whose will not, in different precincts and counties, the scheme also violates the Equal Protection Clause of the Fourteenth Amendment. If a manual recount gives effect to partially punched ballots, or counts ambiguous ballots based on the canvassing boards’ subjective interpretation of voters’ intent, it arbitrarily subjects voters in other counties to unequal treatment in violation of the Fourteenth Amendment. Because a fundamental right is at issue here - the right to vote - the state’s action is subject to strict scrutiny.

THIRD CLAIM FOR RELIEF
(Violation of 42 U.S.C. § 1983 and the Fourteenth Amendment)

56. Plaintiffs repeat and reallege paragraphs 1-42.

57. Because the recount begun or about to begin by Defendants is limited to portions of only four counties, the Voter Plaintiffs who are not residents or voters in those four counties are being deprived of rights accorded to voters of those counties and/or will have their votes diluted in violation of the Fourteenth Amendment.

FOURTH CLAIM FOR RELIEF
(Violation of 42 U.S.C. § 1983 and the First Amendment)

58. Plaintiffs repeat and reallege paragraphs 1-42.

59. The right to vote in a democracy is among the most precious of all individual rights, and is the crux of the democratic system. The right to vote is clearly established under the First Amendment of the Constitution of the United States.

60. By their votes, the Voter Plaintiffs and all the other voters expressed a political message regarding their choice of candidates for the Presidential election. That message will be delivered only when their votes are counted and certified for release by Defendants, such that government can act on the Voter Plaintiffs’ votes. In this particular case, that message includes selection and direction of electors to the Electoral College under the United States Constitution. Voter Plaintiffs’ votes are a means for orderly change of government under the United States Constitution. The message of the Voter Plaintiffs’ votes, therefore, is at the core of political speech and is entitled to the highest protection under the First Amendment to the United States Constitution.

61. The state’s action in this case arbitrarily denies and burdens the Voter Plaintiffs’ votes and political speech. Due to the standardless nature of the recount and contest scheme, government officials are vested with arbitrary power and authority to deny the vote and thus thwart political speech. Such schemes are presumptively violative of the First Amendment.

62. Defendants’ actions and conduct are in willful disregard of the Voter Plaintiffs’ constitutionally protected rights, and were committed with the intent of depriving the Voter Plaintiffs of their constitutional rights.

FIFTH CLAIM FOR RELIEF
(Section 1983; Violation of the Fourteenth Amendment)

63. Plaintiffs Governor George W. Bush and Dick Cheney repeat and reallege paragaphs 1-42.

64. Under the Due Process clause of the Fourteenth Amendment, candidates for public office are entitled to due process in election procedures, including with regard to the fair and timely counting and reporting of the votes cast for that candidate.

65. This Court should declare that Defendants’ refusal to certify and release those votes that they have now counted twice since November 7 and their performance of any additional recounts violate the rights of Plaintiffs Governor George W. Bush and Dick Cheney under the Fourteenth Amendment.

WHEREFORE, Plaintiffs pray for a judgment and order:

(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 statewido election or otherwise delay the certification and release of those results; and

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

Respectfully submitted,
Barry Richard, Esq.
GREENBERG TRAURIG, P.A.,
Tallahassee, Florida

Theodore B. Olson, Esq.
GIBSON DUNN & CRUTCHER LLP
Washington, D.C.

Benjamin L. Ginsburg, Esq.
PATTON BOGGS LLP
Washington, D.C.

- and -

WHITE & CASE LLP
Attomeys for Plaintiffs
Suite 4900
200 South Biscayne Boulevard
Miami, Florida 33131-2352
Telephone: (305) 371-2700
Facsimile: (305) 358-5744

Marcos D. Jimenez
Florida Bar No. 441503

Of Counsel:

George J. Terwilliger
Timothy E. Flanigan
WHITE & CASE LLP
Washington, D.C.

© 2000 The Washington Post Company


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