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IN THE
SUPREME COURT OF FLORIDA
CASE NOS. SC00-2346, SC00-2348 & SC00-2349
PALM BEACH COUNTY
vs.
KATHERINE HARRIS, ETC.,
CANVASSING BOARD,
ET AL.
ET AL.
VOLUSIA COUNTY
vs.
KATHERINE HARRIS, ETC.,
CANVASSING BOARD,
ET AL.
ET AL.
FLORIDA DEMOCRATIC
vs.
KATHERINE HARRIS, ETC.,
PARTY
ET AL.
Petitioners/Appellants
Respondents/Appellees
_________________________________________________________
AMENDED SUPPLEMENTAL BRIEF OF KATHERINE HARRIS, AS
FLORIDA SECRETARY OF STATE, AND KATHERINE HARRIS, L.
CLAYTON ROBERTS, AND BOB CRAWFORD, AS MEMBERS OF
THE FLORIDA ELECTIONS CANVASSING COMMISSION
__________________________________________________________
Deborah K. Kearney
Joseph P. Klock, Jr.
General Counsel
John W. Little, III.
Kerey Carpenter
Donna E. Blanton
Assistant General Counsel
Arthur R. Lewis, Jr.
Florida Department of State
Ricardo M. Martínez-Cid
PL-02 The Capitol
Gabriel E. Nieto
Tallahassee, Florida 32399-0250
Steel Hector & Davis, LLP
850-414-536
215 South Monroe Street
Suite 601
Tallahassee, Florida 32301
850-222-2300

TABLE OF CONTENTS
Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
I.
This Court's Decision of November 21, 2000, Relied on the
Paramount Importance of the Right of Suffrage Under the
Florida Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II.
In Presidential Elections, the Application of Article II,
Section 2, Supercedes the Right of Suffrage Under the
Florida Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
III.
Under 3 U.S.C. § 5, Controversies or Contests Concerning
the Appointment of Electors Must be Resolved Under Laws
Enacted Before Election Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Certificate of Font . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
i

TABLE OF AUTHORITIES
CASES
Buckley v. Valeo, 424 U.S. 1, 14 n.16 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Bush v. Palm Beach Canvassing Bd., 2000 WL 1731262
(U.S. Dec. 4, 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 6, 7
Bush v. Palm Beach Canvassing Bd., 2000 WL 1731262
(U.S. Nov. 24, 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
McPherson v. Blacker, 146 U.S. 1, 27 (1892) . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Palm Beach Canvassing Bd. v. Harris, 2000 WL 1725434
(Fla. Nov. 21, 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 3
U.S. Term Limits v. Thornton, 514 U.S. 779 (1995) . . . . . . . . . . . . . . . . . . . . . . 5
UNITED STATES CONSTITUTION
Article II, Section 1, cl. 2, United States Constitution . . . . . . . . . . . . . . . . . . . . . 5
Article II, Section 2, United States Constitution . . . . . . . . . . . . . . . . . . . . . . . . 4
UNITED STATES CODE
3 U.S.C. § 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 6, 7, 8, 9
FLORIDA STATUTES
Section 102.111, Florida Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 102.112, Florida Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 102.166, Florida Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ii

Section 102.166(4), Florida Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 102.168, Florida Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
iii

INTRODUCTION
Appellees Katherine Harris, as Florida Secretary of State, and Katherine
Harris, L. Clayton Roberts, and Bob Crawford, as Members of the Florida
Elections Canvassing Commission, respectfully submit this Supplemental Brief on
the implementation of the Mandate of the United States Supreme Court.
ARGUMENT
I.
This Court's Decision of November 21, 2000, Relied on the
Paramount Importance of the Right of Suffrage Under the Florida
Constitution.
In its decision of November 21, 2000, this Court addressed, along with
another issue, the apparent conflict between section 102.166(4), Florida Statutes
(the time frame for conducting a manual recount) and section 102.111 (the time
frame for submitting and certifying county returns), as well as the apparent conflict
between the mandatory language in section 102.111 and the permissive language of
section 102.112. Palm Beach Canvassing Bd. v. Harris, 2000 WL 1725434 at *4
(Fla. Nov. 21, 2000).
From the outset of its opinion, this Court made clear that "hyper-technical
statutory requirements" must give way to the of suffrage implicit in the Florida
Constitution. See id. at *4 ("the will of the people, not hyper-technical reliance
upon statutory provisions, should be our guiding principle in election cases."); at

*6 ("all political power is inherent in the people"). After reviewing the relevant
portions of the Florida Election Code, the Court observed that:
the County canvassing Boards are required to submit their
returns to the Department by 5 p.m. of the seventh day
following the election. The statutes make no provision for
exceptions following a manual recount. If a Board fails to
meet the deadline, the Secretary is not required to ignore the
county's returns but rather is permitted to ignore the returns
within the parameters of this statutory scheme. To
determine the circumstances under which the Secretary may
lawfully ignore returns filed pursuant to the provisions of
section 102.166 for a manual recount, it is necessary to
examine the interplay between our statutory and
constitutional law at both the state and federal levels.
Id. at *11.
The Court then looked to principles of Florida constitutional law that the
judiciary must "attend with special vigilance whenever the Declaration of Rights is
in issue," and that "[t]he right of suffrage is the preeminent right contained in the
Declaration of Rights, for without this basic freedom all others would be
diminished." Id. at *12. In accordance with these general principles, the Court
stated the seemingly applicable proposition of law that "the Legislature may enact
laws regulating the electoral process . . . only if they impose no `unreasonable or
unnecessary' restraints on the right of suffrage." Id.
2

Looking as well to the principles of Florida constitutional law for guidance,
the Court concluded:
Because the right to vote is the pre-eminent right in the
Declaration of Rights of the Florida Constitution, the
circumstances under which the Secretary may exercise her
authority to ignore a county's returns filed after the initial
statutory date are limited. The Secretary may ignore such
returns only if their inclusion will compromise the integrity
of the electoral process in either of two ways: (1) by
precluding a candidate, elector, or taxpayer from contesting
the certification of election pursuant to section 102.168; or
(2) by precluding Florida voters from participating fully in
the federal electoral process. In either such case, this
drastic penalty must be both reasonable and necessary. But
to allow the Secretary to summarily disenfranchise innocent
electors in an effort to punish dilatory Board members, as
she proposes in the present case, misses the constitutional
mark. The constitution eschews punishment by proxy.
Id. at *15.
The United States Supreme Court subsequently granted Governor Bush's
petition for certiorari review to address whether the Court's decision conflicted
with federal constitutional and statutory law. Bush v. Palm Beach Canvassing Bd.,
2000 WL 1731262 (U.S. Nov. 24, 2000). On December 4, 2000, the Supreme
Court issued an opinion in which it vacated this Court's decision and remanded for
clarification of the basis for this Court's conclusion.
3

In its decision, the U.S. Supreme Court has asked this Court to clarify the
holdings of its decision vis-a-vis federal statutory and constitutional principles,
obviously recognizing this Court's ability to develop Florida law. Apparently
recognizing that this Court did not center its opinion on federal law, the high court
asks this Court to clarify its opinion as to impact on the legislature's power to
select the method of appointing electors for President and Vice President of the
United States, or recognition of state constitutional rights that might collide with 3
U.S.C. § 5 or article II of the U.S. Constitution. In so doing, the Supreme Court
of the United States counsels:
Since § 5 contains a principle of federal law that would assure finality
of the State's determination if made pursuant to a state law in effect
before the election, a legislative wish to take advantage of the "safe
harbor" would counsel against any construction of the Election Code
that Congress might deem to be a change in the law.
Bush v. Palm Beach County Canvassing Board, 2000 WL 1769093 at *3 (U.S.
Dec. 4, 2000).
II.
In Presidential Elections, the Application of Article II, Section 2
Supercedes the Right of Suffrage Under the Florida Constitution.
The U.S. Constitution provides that "[e]ach State shall appoint, in such
Manner as the Legislature thereof may direct, a Number of Electors, equal to the
whole number of Senators and Representatives to which the State may be entitled
4

in the Congress." U.S. CONST. art. II, § 1, cl. 2. This provision grants plenary
power to state legislatures to determine the manner for the appointment of electors
for President and Vice President of the United States. In construing this
constitutional provision in the context of a challenge to the methods set forth by the
Michigan State Legislature to appoint electors, the Supreme Court made clear that
the appointment of presidential electors is placed absolutely with the legislatures of
the several states:
The constitution does not provide that the appointment of
electors shall be by popular vote, nor that the electors shall
be voted for upon a general ticket, nor that the majority of
those who exercise the elective franchise can alone choose
the electors. It recognizes that the people act through their
representatives in the legislature, and leaves it to the
legislature exclusively to define the method of effecting the
object.
McPherson v. Blacker, 146 U.S. 1, 27 (1892) (emphasis added).
In other words, there is no right of direct suffrage when it comes to the
appointment of electors for President and Vice President of the United States.
Absent an express delegation of authority, state courts possess no power, through
the state constitution or otherwise, to alter the "manner" set by the legislature for
the appointment of presidential electors. See U.S. Term Limits v. Thornton, 514
U.S. 779 (1995) ("In the absence of any constitutional delegation to the States of
5

power to add qualifications to those enumerated in the Constitution, such a power
does not exist."). There has been no such delegation of authority in this case.
In fashioning its November 21 decision, this Court relied heavily on the
constitutional right of suffrage that the Court found implicit in Florida's
Constitution. The Court's decision is a crafted compromise between this state
constitutional right and the Florida Election Code. The issues this Court found
troublesome and addressed in its decision can, however, be addressed by the
Florida Legislature --the only body capable of doing so, for the U. S. Constitution
and its implementing statutes require absolute deference to the legislative scheme.
III.
Under 3 U.S.C. § 5, Controversies or Contests Concerning the
Appointment of Electors Must be Resolved Under Laws Enacted
Before Election Day.
The United States Supreme Court has "recognized broad congressional
power to legislate in connection with the elections of President and Vice President."
Buckley v. Valeo, 424 U.S. 1, 14 n.16 (1976). Congress exercised that power
when it enacted 3 U.S.C. § 5, which applies to state court determinations relating to
"any controversy or contest concerning the appointment of all or any of the
electors." Under that section, such controversies resolved by reference to "laws
enacted prior to" election day and made at least six days before the meeting of the
6

electors "shall be conclusive, and shall govern in the counting of the electoral
votes." 3 U.S.C. § 5.
This Court's decision did not address 3 U.S.C. § 5. See Bush, 2000 WL
1731262 at *3. This Court should examine section 5 and reconsider its previous
ruling. A ruling from this Court consistent with section 5 "would assure finality of
the State's determination" of this election controversy. Id. The "wish to take
advantage of the `safe harbor' [provided by 3 U.S.C. § 5] would counsel against
any construction of the Election Code that Congress might deem to be a change in
the law." Id.
This Court's previous decision may be viewed by Congress as having
changed Florida's election laws. This Court sought to protect Florida voters, and
its decision should not "compromise the integrity of the electoral process . . . by
precluding Florida voters from participating fully in the federal electoral process."
Palm Beach County Canvassing Bd., 2000 WL at *13. To ensure that Florida's
participation in the electoral college is not prejudiced, and recognizing the unique
aspects of Presidential elections, this Court should affirm the decision of Judge
Lewis.
7

CONCLUSION
This Court must reconsider its previous decision in light of the unique
aspects of a presidential election. The application of state constitutional and
equitable principles to modify the legislative scheme for a presidential election
violates the United States Constitution and 3 U.S.C. § 5.
These Appellees respectfully suggest that since the issuance of this Court's
original opinion on November 21, 2000, events may have rendered moot some of
the issues addressed by the Court; thus, this Court may consider a more
streamlined revised opinion. In any event, this Court should issue an opinion in
which it addresses the Election Code in the specific context of a presidential
election, and recognizes the overriding principles of federal law that place the
power to determine the method for the appointment of electors solely in the
Legislature. Affirming Judge Lewis's order as it applies to the November 7, 2000,
election of presidential electors would serve this purpose and avoid the
constitutional and statutory infirmities identified by the United States Supreme
Court. Moreover, it would uphold and protect the right to vote for electors that the
Florida Legislature has bestowed upon the State's citizens by stewarding Florida
8

into the safe harbor of 3 U.S.C. § 5, and thereby prevent a congressional challenge
to the electors appointed by the State.1
Respectfully submitted,
STEEL HECTOR & DAVIS LLP
By: _____________________________
Deborah K. Kearney
Joseph P. Klock, Jr.
General Counsel
Fla. Bar No. 156678
Florida Bar No. 0334820
John W. Little III
Florida Department of State
Fla. Bar No. 384798
Tallahassee, Florida 32399-0250
Donna E. Blanton
(850) 414-5536
Fla. Bar No. 948500
215 South Monroe Street Suite 601
and
Tallahassee, Florida 32301
(850) 222-2300
Bill L. Bryant, Jr.
Katz, Kutter, Haggler, Alderman
Counsel for Respondents
Bryant & Yon, P.A.
Special Counsel to Comm'r Crawford
Highpoint Center, 12th Floor
106 East College Avenue
Tallahassee, Florida 32301
(850) 224-9634
1
This request by the U.S. Supreme Court is quite apropos of this
Court's continued concerns articulated during oral argument and in its decision that
Florida's electoral votes not be put in peril.
9

CERTIFICATE OF FONT SIZE
This Supplemental Brief is typed using a Times New Roman 14-point font.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished by hand delivery, mail or fax on this 5th day of December, 2000, to the
following:
Frank B. Gummey, III
Douglas A. Daniels
Assistant County Attorney
523 North Halifax Avenue
123 West Indiana Avenue
Daytona Beach, Florida 32118
DeLand, Florida 327204613
Dexter Douglass
Daniel D. Eckert
211 East Call Street
Volusia County Attorney
Tallahassee, FL 32302-1674
123 West Indiana Avenue
DeLand, Florida 32720-4613
Barry Richard
Greenberg Traurig, P.A.
Tura Schnebly
101 East College Avenue
Assistant County Attorney
Tallahassee, FL 32302-1838
123 West Indiana Avenue
DeLand, Florida 32720-4613
Bill Bryant
Katz Kutter Et Al
Mark Herron, P.A.
106 East College Avenue, Floor 12
301 South Bronough Street
Tallahassee, FL 32301
Suite 200
Tallahassee, Florida 32301
Harold McLean
Florida Dept. of Agriculture &
Michael D. Crotty
Consumer Serv.
Crotty & Bartlett, P.A.
515 Mayo Building
1800 W. International Speedway Blvd.
407 South Calhoun Street
Tallahassee, FL 32399-0800
Building 2, Suite 201
Daytona Beach, Florida 32114
10

Karen Gievers
11th Judicial Circuit of Florida
524 East College Avenue, Suite 2
In and for Dade County
Tallahassee, FL 32301
Chief Judge Joseph P. Farina
Dade County Courthouse
John D.C. Newton, II
73 West Flagler Street, Room 511
215 South Monroe Street
Miami, Florida 33130
Suite 705
Tallahassee, FL 32301
Dade County Canvassing Board
Miami, Florida
Ronald G. Meyer
Meyer and Brooks, PA
Palm Beach County Canvassing
2544 Blairstone Pine Dr.
Board
Tallahassee, FL 32301
Palm Beach County Courthouse
205 North Dixie Highway
Mitchell Berger
West Palm Beach, Florida 33401
Berger Davis & Singerman
350 East Las Olas Boulevard, Suite
Broward County Canvassing Board
1000
Fort Lauderdale, FL
Fort Lauderdale, FL 33301
Bruce Rogow
Harold Mardenborough
Beverly A. Pohl
McFarlain Wiley Et Al
Bruce Rogow, P.A.
215 South Monroe Street, Suite 600
Broward Financial Centre
Tallahassee, FL 32301
500 East Broward Blvd., Suite 1930
Fort Lauderdale, Florida 33394
17th Judicial Circuit of Florida
In and for Broward County
Edward A. Dion
Chief Judge Dale Ross
County Attorney for Broward County
201 SE 6th Street
Government Center, Suite 423
Ft. Lauderdale, Florida 33301
115 South Andrews Avenue
Fort Lauderdale, Florida 33301
15th Judicial Circuit of Florida
In and for Palm Beach County
Palm Beach County Courthouse Chief
Judge Walter N. Colbath, Jr.
205 North Dixie Highway
West Palm Beach, Florida 33401
11

Samuel S. Goren
Michael D. Cirullo
Josias, Goren, Cherof Et Al
3099 East Commercial Blvd., Suite
200
Fort Lauderdale, Florida 33308
David Boies
Boies, Schiller & Flexner LLP
80 Business Park Drive, Suite 110
Armonk, New York 10504
Lawrence A. Gottfried
11211 S. Military Trail, Apt. 1224
Boynton Beach, Florida 33436
Denise D. Dytrych
Palm Beach County Attorney
301 North Olive Avenue, Suite 601
West Palm Beach, Florida 33401
Robert A. Butterworth
Attorney General
George Waas
Assistant Attorney General
PL-01 The Capitol
Tallahassee, Florida 32399-1050
_________________________
Donna E. Blanton
12

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