Brief to Congress: Florida Electors

CONSTITUTIONAL LAW AND FEDERAL PROCEDURE
FOR CONGRESSIONAL CHALLENGE
OF PRESIDENTIAL ELECTORS

Prepared by Mark H. Levine,
counsel for Democrats.com

with the assistance of Michael North
member of the Advisory Board of Democrats.com

Available on the Internet, at
http://www.trustthepeople.com/

Complete document, formatted for printing, is
available for download here.

This document is intended to be of assistance to the United States Congress, in understanding the legal basis for a challenge of the Electors from the State of Florida in the Presidential election of 2000.

In sum, we have established the following facts:

1. Congress has the power and obligation to determine whether Electors are "regularly chosen" by each State, and to reject slates of Electors not selected in accordance with the laws of their state. The precise times, dates, standards, procedures and manner of the determination are set forth by Federal statute, providing a clear roadmap in law for Congress as to how to proceed.

2. The current slate of Electors from Florida being submitted to Congress on January 6, 2000 was not chosen in accordance with Florida state law, as substantiated by decisions of both the Florida Supreme Court and the United States Supreme Court.

3. In addition, the manner of selection of the Florida Electors violates the United States Constitution in important respects, a fact also confirmed by decision of the United States Supreme Court.

4. These Electors may therefore be rejected by majority votes of the House and the Senate.

5. Careful evaluation of these facts is vital to the integrity of the rule of law in the United States, to basic principles of the Constitution and of democracy, and to future generations.

We have been careful to document these points, and to avoid discussion of the many partisan and political opinions and allegations of fact which, while important, are either not germane or not provable, from a legal standpoint.

The matters discussed here are sufficient, in and of themselves, to require Congress to consider them carefully, and, after the debates mandated by law, to reject the Florida Electors.

We offer this information in full realization of the seriousness of its import, in full respect for the sole independent right of the House and the Senate to weigh all factors involved and to make their determinations according to the Constitution and Federal law. Our role is that of patriots concerned for the integrity and future of the American vision of democracy, and not as advocates for any particular candidate. The vitality of the law transcends the particular political fortunes of any man or party.

KEY ISSUES
BEFORE THE HOUSES OF CONGRESS
CONCERNING THE ACCEPTANCE OF ELECTORS
FROM THE STATE OF FLORIDA

January 6, 2000

I. CONGRESS MUST DETERMINE IF A STATE HAS "REGULARLY" CHOSEN ELECTORS PURSUANT TO STATE LAW.

If a State fails to appoint Presidential Electors "regularly," i.e. pursuant to its State Laws, no Electors from that State may have their votes counted. 3 U.S.C. §§ 6, 15. According to this federal law and the Constitution, Art. II, §1, and Amendment XII, it is the sole role to Congress, presided over by the President of the Senate, to make the final determination as to whether a State's Electors have been "regularly" chosen by State Law.

II. GENERAL CONSTITUTIONAL FRAMEWORK

The general framework for a challenge to a State's Electors is set out in the Constitution of the United States:

"Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors [for President and Vice President of the United States]. . . .The Congress may determine the Time of chusing [sic] the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

"The Electors shall meet in their respective states, and vote by ballot for President and Vice President, one of whom, at least, shall not be an inhabitant of the same state with themselves; . . . "

United States Constitution, Article II, Section 1 (emphasis added).

"--The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; --The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; . . . --The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, . . ."

United States Constitution, Amendment XII.

In sum, the Constitution places the election of the Presidency in the hands of two (and only two) institutions: State Legislatures before Election Day and Congress, presided by the Vice-President, thereafter. The power may constitutionally be delegated to other branches of government, as described below in the Election of 1876, but since 1887, Congress has reserved the right for itself.

III. ORIGINS OF THE 1887 FEDERAL LAW ON PRESIDENTIAL ELECTIONS: THE DISPUTED ELECTION OF 1876

The conduct and resolution of the election of 1876, and the laws passed by Congress in 1887, provide instruction to the Congress of today on how to correctly resolve matters involving disputed slates of Electors in the Electoral College.

Prior to 2001, Republican Rutherford B. Hayes "was the only president to hold office by decision of an extraordinary commission of congressmen and Supreme Court justices appointed to rule on contested electoral ballots." In the Election of 1876, Democrat Samuel J. Tilden won the popular vote and came one vote shyshort of an electoral-vote majority. Hayes, the second-choice popular candidate, was 20 votes shyshort of the electoral majority and "almost certainly lost" the popular vote in Florida, whose electoral votes were disputed along with three other states. "For more than six weeks, maneuvering and acrimony prevailed in Congress and out, punctuated by threats of civil war."

A commission of five Republican members of Congress, five Democratic members of Congress, and five Supreme Court justices (three Republicans and two Democrats) was appointed by Congress and delegated Congressional powers to resolve the problem. On a straight party-line 8-7 vote, the Electoral Commission awarded Hayes every one of the twenty disputed electors from the four states, allowing him to prevail in the electoral college by one vote. When Democrats, in "outrage and bitterness," threatened violence and civil war, Hayes secretly pledged to Southern white Democrats that he would remove Federal troops from the South and restore "traditional white Democratic supremacy" there. While this mollified the (white) South, Northern Democrats referred to Hayes as "His Fraudulency" throughout his four-year term.

Following the fiasco of 1876, the United States Supreme Court lost legitimacy in the eyes of the American public that took several decades to rebuild. In 1887, Congress, determined never again to delegate away to federal judges its Constitutional authority (shared with the States) to be the final arbiter in close Presidential elections, see Legislative History to 3 U.S.C §§ 1 et seq., passed a comprehensive, detailed code on Federal Elections that attempts to explicitly and exhaustively regulate every conceivable electoral anomaly. This 1887 Code, with few revisions, governs the substance and procedure of the Congressional role in Presidential Elections today.

IV. GENERAL STATUTORY FRAMEWORK TO 1887 LAW

Congress may, by vote of both houses, entirely reject a state's electoral slate if the electoral vote has not been "regularly given" by state electors "lawfully certified." 3 U.S.C. § 15. § 15. Certification is only lawful if the ascertainment of votes cast for elections or the determination of elections contests is conducted pursuant to state law. 3 U.S.C. § 6.

Thus, if pre-existing state law is not followed in the counting of votes and the determination of elections contests, there iscan be no lawful certification under 3 U.S.C. § 6 and, under 3 U.S.C. § 15, Congress may reject the electoral votes under Section 15.

Further, inIn the present case involving the Florida Electors, Congress has every right to intervene because the slate of Electors sent to the Electoral College by the State of Florida is outside the "safe harbor" set by 3 U.S.C. §5. This code section preserves a State's conclusive determination of election controversy from Congressional challenge only if a "final determination" is made prior to December 12, 2000 and only if the challenge is resolved pursuant to "laws enacted prior to the day fixed for the appointment of the electors."

In its decision of December 12, 2000, the United States Supreme Court did not -- as may be commonly but erroneously believed -- finally determine the election contest. It remanded the issue to the Florida Supreme Court (whichCourt, which issued its remand opinion following the "safe harbor" deadline on December 22, 2000). Furthermore, as will be noted below, it is clear that the certification of Florida electors was not done pursuant to "laws enacted prior to the day fixed for the appointment of the electors."

V. FLORIDA'S ELECTORS WERE NOT ASCERTAINED AND CONTESTED IN ACCORDANCE WITH FLORIDA LAW.

From the beginning of our republic until today, the United States Supreme Court has consistently held that State Supreme Courts are the final authority on all state court decisions that rest on adequate and independent state grounds. In fact, the United States Supreme Court is without jurisdiction to even consider such an opinion, much less overturn it. See, e.g., Herb v. Pitcairn, 324 U.S. 117 (1945). The U.S. Supreme Court may only intervene if Florida law conflicts with Federal Law or violates the United States Constitution. The Florida Supreme Court's "status as the ultimate arbiter of conflicting Florida Law," Palm Beach County v. Harris (Florida Supreme Court, December 11, 2000), has never been disputed.

As noted above, the United States Constitution places the responsibility on the respective Legislatures of the several states for directing the "Manner" of Elector appointment, with the only restriction being said "Manner" must be determined prior to Election Day ("when Congress may determine the Time of chusing [sic] the Electors"). And the Legislatures of the 50 states (including Florida) have, either via legislation or state constitutions (in Florida's case, both) delegated the ultimate authority to interpret state law to their respective states' highest courts.

In sum, in the present case, unless Florida's laws are unconstitutional (see section below), it is the sole province and duty of the Florida Supreme Court to say what Florida law is, based on its interpretation of Florida statutes.

In Florida, theThe Florida Supreme Court held in both the protest ("ascertainment" under 3 U.S.C. § 6) and contest phases that the election result certified by Secretary of State Katherine Harris was not determined in the manner the Legislature had directed, i.e. was not in accordance with Florida Law. In the protest phase, the Florida Supreme Court issued an opinion clarifying and interpreting contradictory Florida law on handcounts andof ballots, requiring Harris to certify all lawful handcounts pursuant to Florida law. Although the Florida Supreme Court opinion was vacated by the United States Supreme Court for clarification, it was re-issued on remand on December 11, 2000 (prior to the US Supreme Court decision the next evening (December 12, 2000)).evening, December 12, 2000). The United States Supreme Court has never reversed this Florida clarification, and it stands as good law, including its holding that Harris's refusal to accept handcounts violated Florida law.

In the contest phase, the Florida Supreme Court similarly ruled, under Florida law, that the contest determination of Leon County Court Judge Sauls refusing to review the uncounted ballots was a violation of Florida law on election contests. The Florida Supreme Court ordered immediate handcounts of undervotes throughout Florida in order to rectify this situation. "In tabulating the ballots and in making a determination of what is a ‘legal' vote, the standard to be employed is that established by the Legislature in [the Florida] Election Code which is that the vote shall be counted as a "legal"'legal' vote if there is "clear'clear indication of the intent of the voter."voter.' § 101.5614(5), Fla. Stat. (2000)." Gore v. Harris (Florida Supreme Court, December 8, 2000) at 40.

The United States Supreme Court stayed and ultimately reversed this Florida Supreme Court decision on the grounds that the standard set by the Florida Legislature "for the count of legally cast votes," "to consider 'the intent of the voter,'" "is unobjectionable as an abstract proposition" but acceptable unless "uniform rules to determine intent" are only "adopt[ed]." The case was reversed and remanded to the Florida Supreme Court.

On December 22, 2000, the Florida Supreme Court issued its remanded decision in Gore v. Harris, holding that the sole standard it had power to apply, according to Florida Law, was the standard set by the Legislature at the time of Florida's November 7, 2000 election and further holding that the Supreme Court's mandate of adopting new uniform standards "should be left to the body we believe best equipped to study and address it, the Legislature."

In sum, Florida's electors were neither ascertained nor contested pursuant to Florida Law. The Constitution only allows Florida's electors to be appointed "in such Manner as the Legislature thereof may direct." Article II, Section 1 of the United States Constitution. According to Florida's highest legal arbiter (and undisputed by the U.S. Supreme Court), this constitutional mandate was never fulfilled.

Thus, Florida's failure to ascertain or contest electors in accordance with Florida's law not only violates Article II, Sect. 1 of the Constitution, it also means that Florida's electors were never lawfully certified under 3 U.S.C. § 6 and therefore are subject to Congressional challenge for "irregularity" under 3 U.S.C. § 15.

VI. FLORIDA'S ELECTORS WERE NOT ASCERTAINED AND CONTESTED IN ACCORDANCE WITH THE UNITED STATES CONSTITUTION.

In addition to the Article II violation, the Florida certification violates the equal protection clause of the Fourteenth Amendment to the United States Constitution. The United States Supreme Court made clear in Bush v. Gore that even the slightest distinction between the counting of votes by separate, individual judges (overseen by a single judge, Leon County Court Judge Lewis), each trying to determine "intent of the voter" under the "totality of circumstances" was a constitutional violation of the highest magnitude: a violation grave enough to stop vote-counting all together: "The press of time does not diminish the constitutional concern. A desire for speed is not a general excuse for ignoring equal protection guarantees."

In sum, Florida's laws, as they existed on November 7, 2000 and were applied thereafter for counting votes for Presidential electors, must have been unconstitutional. Otherwise, as noted above, the United States Supreme Court would have no jurisdictioneven to intervene.

Secretary of State Harris's certification is even more constitutionally suspect. It is undisputed that even in Harris's certified count, Florida counties counted both punch-card ballots and optical-scanned ballots under different manual recount standards from "county to county" and from "table to table." . Some manual recount results were admitted and certified by Harris (e.g., Seminole County), and some were not (e.g., Palm Beach County). Some machine recount results were admitted by Harris (e.g., most of Florida) and some were not (e.g. Nassau County).

In some counties, a faulty private firmsprivate firm's faulty "felons list" illegally disenfranchised thousands of purported but not actual felons, and in some counties (such as in Madison County, when the election supervisor herself was placed wrongly on the list), the faulty "felons list" was ignored. Indeed, recent independent reports from Lake, Broward, Gadsen, and Hillsborough counties alone evidence that the failure of the Legislature to timely adopt a uniform standard as required by the Constitution changed the ultimate Florida election result . These results do not include the 170,000 votes which the United States Supreme Court noted were never counted due primarily to inadequate (punch card) voting systems.

In sum, Harris's certification did not only violate Florida law. It violated the United States Constitution as well.

VII. PATTERN OF ALLEGATIONS OF IMPROPER PROCEDURE IN THE CONDUCT OF THE FLORIDA ELECTION

There have been many public allegations of improper procedure before, during and after the elections of November 7, 2000 in Florida. These allegations have come from many quarters: from public officials, from the press, from public advocacy organizations and from private individuals.

None of these allegations has yet been sufficiently proved, to a legal standard sufficient to merit consideration by Congress at this time, or to cause the disqualification of the Florida Electors. There has not been sufficient time to meet that high standard.

Yet Congress should be aware of these allegations, because as a group they form a pattern, consistent across time, place and legal jurisdiction, of inconsistent, questionable and in some cases possible discriminatory actions taken during the course of the election. This pattern is sufficient to raise reasonable doubt in the mind of an objective person as to the fairness of the election, and investigations continue.

It is likely that some of these allegations will, in future, be proven to a high legal standard. These allegations are the source of considerable discussion by the public, and are being cited as the basis for a general cynicism about the legal functions of government and the integrity of the electoral process. Therefore, resolving them should be a high priority for Congress, the President, the State of Florida and for all officials of the United States Government and the United States Courts, so as to ensure the sanctity of "the consent of the governed" as the basis for legitimate authority and confidence in our democratic institutions.

For convenience, an index to some of these allegations of improper procedure is included in Appendix 3.

VIII. LEGAL IMPLICATIONS OF REJECTION OF FLORIDA'S UNLAWFUL ELECTORAL VOTES; PRECEDENT

The Twelfth Amendment is clear: the candidates for President and Vice-President with the most votes win, "if such number be a majority of the whole number of Electors appointed." The number of Electors appointed does not include those appointed in violation of law. As 3 U.S.C. § 6 makes clear, appointments are only valid if done pursuant to state law. If electors are not appointed pursuant to law, they are not appointed at all. Thus by majority of the 513 appointed electors, if the Florida electoral slate is excluded, Vice President Albert Gore, Jr. would win the Presidency, and Senator Joseph Lieberman would win the Vice-Presidency, by a margin of 267 to 246 votes in the Electoral College.

There is a precedent for not counting states' electoral votes. In the Election of 1864, during the Civil War Between the States, eleven Southern states failed to appoint electors. Even following the War, in 1868, Virginia, Mississippi, and Texas were denied re-entry to the Union, due to their failure to ratify the Fourteenth Amendment to the U.S. Constitution and were thereby denied the right to participate in the choosing of Presidential Electors. Despite the lack of duly-appointed electors by these Southern states, President Lincoln was re-elected in 1864 and President Grant was elected in 1868 by "a majority of the whole number of Electors appointed." U.S. Constitution, Amendment XII.

IX. PROCEDURE FOR REJECTING UNLAWFUL ELECTORAL VOTES

A. Place and Time

The procedures in the 1887 Federal Law on Presidential Elections are quite explicit, with even the exact seating of the officials ordained by law. 3 U.S.C. § 16. Both the Senate and House shall meet in the Hall of the House of Representatives precisely at 1:00 p.m. on January 6, 2001. 3 U.S.C. § 15. The President of the Senate (the current Vice-President) shall preside and shall open all ballots in alphabetical order. Id.

B. Procedure for Written Objections

Upon reading each of the states' ballots in alphabetical order, the President of the Senate is required by law to "call for objections, if any." 3 U.S.C. § 15. "Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received." 3 U.S.C. § 15.

"While the two Houses shall be in meeting as provided in this chapter, the President of the Senate shall have power to preserve order; and no debate shall be allowed and no question shall be put by the presiding officer except to either House on a motion to withdraw [to consider objections]." 3 U.S.C. § 18.

C. Consideration of Objections

"When all objections so made to any vote or paper from a State shall have been received and read, the Senate shall thereupon withdraw, and such objections shall be submitted to the Senate for its decision; and the Speaker of the House of Representatives shall, in like manner, submit such objections to the House of Representatives for its decision." 3 U.S.C. § 15. Note that all objections must be presented at the same time to each slate of electors. Thus, e.g., all objections to Florida's slate of electors must be submitted at once.

"When the two Houses separate to decide upon an objection that may have been made to the counting of any electoral vote or votes from any State, or other question arising in the matter, each Senator and Representative may speak to such objection or question five minutes, and not more than once; but after such debate shall have lasted two hours it shall be the duty of the presiding officer of each House to put the main question without further debate." 3 U.S.C. § 17. In other words, each objection shall have its own debate, lasting up to 2 hours for each objection. Then the question shall be put to a vote. Then the next objection shall be considered, and so forth.

As noted above, "the two Houses concurrently may reject" any electoral votes when they agree that the votes have not been "regularly given" by electors whose appointment has been certified in accordance with Florida law. 3 U.S.C. §§ 15, 6.

D. Duration of Consideration of Objections

"Such joint meeting shall not be dissolved until the count of electoral votes shall be completed and the result declared; and no recess shall be taken unless a question shall have arisen in regard to counting any such votes, or otherwise under this subchapter, in which case it shall be competent for either House, acting separately, in the manner hereinbefore provided, to direct a recess of such House not beyond the next calendar day, Sunday excepted, at the hour of 10 o'clock in the forenoon." So, the joint session may be continued to Monday, January 8, 2001. "But if the counting of the electoral votes and the declaration of the result shall not have been completed before the fifth calendar day next after such first meeting of the two Houses [January 11. 2000], no further or other recess shall be taken by either House." 3 U.S.C. § 16.

Respectfully submitted,

MARK H. LEVINE
California State Bar No. 162934
attorney for Democrats.com

APPENDIX 1: THE DISPUTED 1876 ELECTION

ENCYCLOPÆDIA BRITANNICA

Electoral Commission (of 1876)

(1877), in U.S. history, commission created by Congress to resolve the disputed presidential election of 1876 between Republican Rutherford B. Hayes and Democrat Samuel J. Tilden. For the first time since before the Civil War the Democrats had polled a majority of the popular vote, and preliminary returns showed Tilden with 184 electoral votes of the 185 needed to win, while Hayes had 165. Three states were in doubt: Florida, Louisiana, and South Carolina, with 19 electoral votes among them. The status of one of Oregon's three electors--that had already been given to Tilden--was also in question. Hayes and most of his associates were ready to concede when a New Hampshire Republican leader, William E. Chandler, observed that if Hayes were awarded every one of the doubtful votes, he would defeat Tilden 185-184. Both parties claimed victory in all three Southern states and sent teams of observers and lawyers into all three in hopes of influencing the official canvass.

The responsibility for resolving the conflicting claims rested with Congress--which was more evenly divided between the parties than it had been in decades. The U.S. Constitution provided that each state send its electoral certificate to the president of the Senate, who "shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted." But it shed no light on whether Congress might, in a disputed election, go behind a state's certificate and review the acts of its certifying officials or even if it might examine the choice of electors. If it had such powers, might it delegate them to a commission?

The impasse continued on December 6, the appointed date for electors to meet in the states. When Congress convened the next day there were rival reports from the doubtful states. For more than six weeks maneuvering and acrimony prevailed in Congress and out, punctuated by threats of civil war. Finally, Congress created an Electoral Commission (Jan. 29, 1877) to pass on the contests. The Commission was given "the same powers, if any," possessed by Congress in the matter, and its decisions were to be final unless rejected by both houses.

The Commission was to have five members from the House of Representatives, five from the Senate, and four members from the Supreme Court. Congressional and court contingents were divided evenly between Republicans and Democrats, and the four associate justices were to name a fifth, tacitly but universally understood to be the noted independent from Illinois, David Davis. At this stage the Republican-controlled legislature of Illinois elected Davis to the state's vacant U.S. Senate seat, and he refused the commission appointment, although he stayed on the Supreme Court until March 3. Thereupon the four justices picked their colleague Joseph P. Bradley, a Republican whose record made him acceptable to the Democrats.

Bradley leaned toward Tilden's convincing claim to the Florida vote, the Commission's first action, but Republican pressures swayed him, and the Florida tally went to Hayes, who had almost certainly lost it in fact. Thenceforward all votes followed Florida, on a straight party-line 8-7 basis. (Hayes's claim to Oregon was clearly legitimate, and fraud and intimidation by both parties had been widespread in Louisiana and South Carolina.) The final vote was reported to Congress on February 23. After a week of ominous bluster, which Tilden did much to quiet among his aggrieved followers, a tumultuous session of Congress convened March 1 to count the electoral vote and after 4 Am the next day declared Hayes elected; he was sworn in on the following day. The verdict was received bitterly by Democrats in the North and philosophically by those in the South, who had been promised by Hayes's allies that federal troops would be removed promptly from the former Confederate states, as in fact they were before the end of April. The threats of violence that had recurred throughout the dispute came to naught, giving a welcome sense of assurance to both factions that, even so soon after the Civil War, self-government and domestic peace were not incompatible.

Hayes, Rutherford B.

Hayes's unblemished public record and high moral tone offered a striking contrast to widely publicized accusations of corruption in the administration of President Ulysses S. Grant (1869-77). An economic depression, however, and Northern disenchantment with Reconstruction policies in the South combined to give Hayes's Democratic opponent, Samuel J. Tilden, a popular majority, and early returns indicated a Democratic victory in the electoral college as well. However, Hayes's campaign managers challenged the validity of the returns from South Carolina, Florida, and Louisiana, and as a result two sets of ballots were submitted from the three states. The ensuing electoral dispute became known as the Tilden-Hayes affair. Eventually a bipartisan majority of Congress created a special Electoral Commission to decide which votes should be counted. As originally conceived, the commission was to comprise seven Democrats, seven Republicans, and one independent, the Supreme Court justice David Davis. Davis refused to serve, however, and the Republican Joseph P. Bradley was named in his place. While the commission was deliberating, Republican allies of Hayes engaged in secret negotiations with moderate Southern Democrats aimed at securing acquiescence to Hayes's election. On March 2, 1875, the commission voted along strict party lines to award all the contested electoral votes to Hayes, who was thus elected with 185 electoral votes to Tilden's 184. The result was greeted with outrage and bitterness by some Northern Democrats, who thereafter referred to Hayes as "His Fraudulency."

As president, Hayes promptly made good on the secret pledges made during the electoral dispute. He withdrew federal troops from states still under military occupation, thus ending the era of Reconstruction (1865-77). His promise not to interfere with elections in the former Confederacy ensured a return there of traditional white Democratic supremacy. He appointed Southerners to federal positions, and he made financial appropriations for Southern improvements.

Tilden, Samuel J(ones)

In 1876 Tilden was the Democratic nominee for the presidency. The bitterly fought campaign ended in a disputed election in which Florida, Louisiana, South Carolina, and Oregon reported two sets of returns. To settle the controversy, an Electoral Commission was created by Congress. Tilden reluctantly consented to the formation of the commission but failed to provide vigorous and direct leadership in the crisis. The commission decided all questions by a strictly partisan vote, thus giving the presidency to the Republican candidate, Rutherford B. Hayes. There is evidence that the Republicans entered into a secret deal with Southern Democratic leaders to withdraw Federal troops from the South (where they were safeguarding Reconstruction) if the disputed electoral votes could be counted for Hayes. Tilden, who had received a clear majority of the popular vote, nevertheless accepted the verdict to avoid possible violence.

APPENDIX 2: FLORIDA SUPREME COURT'S PER CURIAM OPINION ON REMAND IN BUSH V. GORE (December 22, 2000)

The preceding three-page Opinion on Remand of the Florida Supreme Court (December 22, 2000) is followed by 28 pages of discussion and documentation; the full document is available here: http://www.flcourts.org/pubinfo/election/

APPENDIX 3:

PATTERN OF ALLEGATIONS
OF IMPROPER PROCEDURE IN THE
CONDUCT OF THE FLORIDA ELECTION

compiled by democrats.com

1. Before the election, Florida Secretary of State Katherine Harris spent $4 million of taxpayer funds to hire a firm to purge voters who were allegedly felons. The list of "felons" included 8,000 American citizens -- mostly minorities -- who committed only misdemeanors, and thousands of innocent people -- again mostly minorities -- with the same names as felons. By this action almost 58,000 U.S. citizens were denied due process and the right to vote.

2. Secretary Harris unlawfully certified the election results from 20 of Florida's 67 counties without requiring -- as mandated under Florida law for elections decided by one half of one percent or less -- that they conduct automatic machine recounts.

3. Secretary Harris unlawfully accepted and certified the results of hand recounts in six Florida counties that produced an additional 400 votes for George W. Bush while rejecting the results of hand recounts in other counties.

4. In Duval County, a pre-election purge of the voter rolls unlawfully removed 22,000 voters -- mostly African Americans -- who voted in the primary election in August but were denied the right to vote in November. Another 27,000 votes cast on election day were discarded, primarily in African-American sections of Jacksonville. This represented one-fourth of the votes in certain precincts. The Supervisor of Elections unlawfully withheld these facts from local Democrats until the deadline for requesting a recount had passed.

5. The county canvassing board in Lake County rejected all ballots in which the voter not only correctly penciled in his or her choice in the appropriate oval beside the candidate's name but also emphasized that choice by writing in the candidate's name, just below a line that carries the instruction "WRITE IN." This is a violation of the state of Florida's election law directing that ballots be counted where the clear intent of the voter is evident.

6. Investigations by news organizations in Miami-Dade County have uncovered several hundred ineligible persons, including Cuban citizens, who were permitted to vote on election day. These investigations of only a fraction of the Miami-Dade election districts suggest a total number of ineligible persons being allowed to vote numbering in the thousands. In addition, the methods used to secure and vote absentee ballots that were found by the Florida Supreme Court to be unlawful in 1998 were repeated in this election, resulting in an untold number of fraudulent ballots.

7. There is persuasive evidence in Broward County of the introduction of pre-punched ballots into certain precincts, the creation of false absentee ballots, and unlawful activities to suppress voter turnout including the purposeful assignment of non-working voting machines to precincts that have strong African-American populations.

8. Election supervisors in Seminole and Martin Counties have admitted to providing favorable treatment for Republican voters who requested absentee ballots that was denied to Democratic and independent voters. Republican election workers were permitted to correct incomplete absentee ballot requests, and those requests were honored even when the Republican election workers failed to correctly complete the forms.

9. The election supervisor in Okaloosa County directed that optical scanning machines be programmed not to reject erroneous ballots, resulting in an inflated number of uncounted ballots.

10. Examination by democrats.com of ballots in four other counties is producing evidence of post-election ballot tampering, intended to reduce the number of overvotes (Jackson County), a massively inflated number of overvotes in only the presidential race (Gadsden). We have also discovered, and continue to investigate, statistical anomalies in the election results (Liberty and Calhoun Counties).

This catalog is not intended to be complete or definitive; other allegations of improper procedure have been made, especially the many examples of possible discriminatory action aimed at African-Americans, set forth by the NAACP and other civil rights organizations.

APPENDIX 4:

Sample Written Objections
to the slate of Electors to the Electoral College
from the State of Florida
in the 2000 Presidential Election

[3 U.S.C. § 15]

107th Congress of the United States

OBJECTION

We, a Senator and a Member of the House of Representatives of the United States of America, do hereby object to the slates of electoral votes proffered from the State of Florida for President of the United States and for Vice-President of the United States on the ground that the electoral votes so proffered have not been regularly given by electors whose appointment has been certified in accordance with Florida Law in violation of 3 U.S.C. §§ 15, 6.