Touchston v. McDermott (234 F.3d 1133, 2000)

Citations

234 F.3d 1133

Full opinion text

PER CURIAM:

The district court’s denial of a preliminary injunction is affirmed for the reasons set forth in Siegel v. Lepore, 234 F.3d 1163 (11th Cir.2000).

AFFIRMED.

TJOFLAT, Circuit Judge,

dissenting, in which BIRCH and DUBINA, Circuit Judges, join, and in which CARNES, Circuit Judge, joins as to Part V:

Following the November 7, 2000 general election, the Florida Supreme Court handed down a decision in Palm Beach County Canvassing Bd. v. Harris, 772 So.2d 1220 (Fla.), vacated by Bush v. Palm Beach County Canvassing Bd., — U.S. -, 121 S.Ct. 471, — L.Ed.2d - (2000), that changed the standards for counting votes and certifying vote totals in the race for President and Vice President of the United States. Specifically, the supreme court gave its imprimatur to a scheme under which a political party could obtain a manual recount of votes in select counties. By changing the “rules of the game” after it was played, the supreme court debased the votes of thousands of Florida voters and denied them the equal protection of the laws guaranteed by the Fourteenth Amendment.

In this case, brought by voters of Bre-vard County, Florida, a United States district judge refused to enter a preliminary injunction enjoining the manual counting of votes in four counties selected by the Florida Democratic Party. The voters appealed. Now, three weeks later, this court affirms the district judge’s ruling.

Plaintiffs may return to the district court tomorrow and ask for a ruling on the merits of their claims. If they do so and the district court rules, which is likely given the obvious need for immediate and decisive action, the case will return to this court and the decision that some are reluctant to make today will have to be made.

I dissent because, in my view, plaintiffs have established a case of serious constitutional deprivation. Contrary to the majority’s view that the record needs further factual development, the pertinent facts are well known and uncontested. “We cannot as judges be ignorant of that which is common knowledge to all men.” Sherrer v. Sherrer, 334 U.S. 343, 366, 68 S.Ct. 1097, 1102, 92 L.Ed. 1429 (1948). The “man on the street” is well aware of the mischief the Florida Supreme Court’s Hams decision has wrought. As I explain below, further proceedings in the district court are unnecessary. Plaintiffs’ constitutional injuries are real; they increase in magnitude daily. We should delay no further.

The outcome of the national presidential election, conducted November 7, 2000, turns upon the results in Florida, for neither the Republican ticket of Governor George W. Bush and his running-mate Secretary Dick Cheney nor the Democratic ticket of Vice President A1 Gore and his running-mate Senator Joseph Lieberman has enough electoral votes to win the election without the twenty-five electoral votes from Florida. The outcome of the Florida election has been hotly contested because the results are so close.

The initial count of the November 7 vote, as reported by the Division of Elections of the State of Florida, revealed that the votes for the Republican ticket totaled 2,909,135 and that the votes for the Democratic ticket totaled 2,907,351. Other candidates on the presidential ballot received a combined total of 133,583 votes. The margin of difference between the Republican and Democratic tickets was 1784 votes, or 0.0299% of the total votes cast in Florida.

Florida law requires an automatic recount in all races where, as here, the final differential between two candidates is 0.5% or less. Fla. Stat. § 102.141(4). This recount was conducted in all 67 Florida counties beginning on November 8, 2000; certifications to the Department of State were completed by November 14. The results of this automatic recount altered the margin between the Republican ticket and the Democratic ticket. The difference between the parties after the automatic recount (but still before the overseas absentee votes were counted) was a mere 300 votes; the Republican ticket received 2,910,492 votes and the Democratic ticket received 2,910,192 votes.

On November 18, the overseas absentee ballots were counted and certified to the Department of State by the counties. The inclusion of these ballots increased the lead for the Republican ticket to 930 votes. Finally, following an order by the Florida Supreme Court on November 21, all manual recounts that were completed and submitted to the Elections Canvassing Commission by 5:00 P.M. on November 26 were added to the final vote totals on the evening of November 26, the Elections Canvassing Commission certified the vote total of Florida in the presidential race. That certification stated that Governor Bush received 2,912,790 votes and Vice President Gore received 2,912,253 votes — a difference of 537 votes.

The Florida statutory election system contemplates mixed control between local and state officials. The Secretary of State is the chief election officer of the state, Fla. Stat. § 97.012(1), but the actual conducting of elections takes place in each of the various counties of Florida under the auspices of the county supervisor of elections. County canvassing boards are responsible for counting the votes given to each candidate, Fla. Stat. § 102.141, and they may, sua sponte, order mechanical recounts “[i]f there is a discrepancy which could affect the outcome of an election.” Fla. Stat. § 102.166(3)(c). After the county canvassing board certifies the votes, the county results in any race involving a state or federal office are forwarded to the Department of State. Fla. Stat. § 102.111(1); Fla. Stat. § 102.112. After all the counties have certified election returns to the Department of State, the Elections Canvassing Commission has the power to “certify the returns of the election and determine and declare who has been elected for each office.” Fla. Stat. § 102.111(1).

Florida Statute section 102.166(4)(a)-(b) authorizes a candidate or his political party — but not a voter — to request a county canvassing board to conduct a “manual recount,” provided that the request is made “prior to the time the canvassing board certifies the [election] results ... or within 72 hours after midnight of the date the election was held, whichever occurs later.” When presented with a manual recount request, the canvassing board has unrestricted discretion to grant or deny a sample manual recount of three precincts. Fla. Stat. § 102.166(4)(c)-(d); see Broward County Canvassing Bd. v. Hogan, 607 So.2d 608, 510 (Fla. 4th DCA 1992) (“The statute clearly leaves the decision whether or not to hold a manual recount of the votes as a matter to be decided within the discretion of the canvassing board.”). If the board so authorizes, the candidate chooses the three precincts to sample. Then:

If the manual recount [of the three precincts] indicates an error in the vote tabulation which could affect the outcome of the election, the county canvassing board shall:

(a) Correct the error and recount the remaining precincts with the vote tabulation system;

(b) Request the Department of State to verify the tabulation software; or

Fla. Stat. § 102.166(5).

Unsatisfied with the results of the initial vote count, the Florida Democratic Party, pursuant to Fla. Stat. § 102.166(4)(a), requested manual recounts in four selected counties: Broward, Miami-Dade, Palm Beach, and Volusia. These requests were made on November 9. Voter registration in these four counties is heavily Democratic, and the Democratic ticket carried them by a substantial margin in both the initial vote counts and automatic recounts. No candidate or political party requested manual recounts of the presidential race in any of the other sixty-three counties. The decisions of the county canvassing boards to conduct full manual recounts in the four counties requested by a candidate or political party give rise to this lawsuit and other litigation concerning the Presidential election in Florida.

On November 13, 2000, Robert C. Touchston, Deborah Shepperd, and Diana L. Touchston commenced' this action by filing a verified complaint and moving for a preliminary injunction in the District Court for the Middle District of Florida. Plaintiffs are registered voters in Brevard County, Florida, who voted in the general election on November 7; they attempted to cast their ballots for the Republican ticket of George W. Bush and Dick Cheney for President and Vice President of the United States. Plaintiffs sued the Florida Secretary of State, members of the Elections Canvassing Commission, and the county canvassing boards of Volusia, Palm Beach, Broward, and Miami-Dade Counties.

Plaintiffs brought this action pursuant to 42 U.S.C. § 1983, claiming violations of the Fourteenth Amendment. Section 1983 provides a remedy for the deprivation of rights “secured by the Constitution and laws” of the United States by persons acting under color of state law. In their complaint, plaintiffs allege that the manual recounting of ballots in some counties but not others unconstitutionally debases the votes cast in the latter counties, and in particular the votes cast by plaintiffs and those similarly situated. Plaintiffs also allege that the lack of standards to guide the canvassing boards in determining “the voter’s intent,” Fla. Stat. § 102.166(7)(b), in a manual recount unconstitutionally debases votes by permitting the canvassing boards to speculate as to a voter’s intent and thereby erroneously conclude that a voter cast a ballot in behalf of a particular candidate. Plaintiffs seek a judicial declaration that Fla. Stat. § 102.166(4) is unconstitutional (both on its face and as applied) because it debases their votes and the votes of those similarly situated and thereby denies them rights guaranteed by the Fourteenth Amendment.

Plaintiffs therefore asked the district court to enjoin the county defendants from “certifying any vote tallies that include the results of any manual recount” in Bro-ward, Miami-Dade, Palm Beach, and Volu-sia Counties; to enjoin the state defendants from “receiving” and thereafter “certifying the results of the election for electors” for the office of president and vice president based, in whole or in part, on the results of any manual recount; and to order the state defendants to certify the results of the election on November 17, 2000, based on county-certified results that did not include any manual recounts.

On appeal, this court ordered that the case be heard initially en banc, pursuant to Fed. R.App. Proc. 35. See Hunter v. United States, 101 F.3d 1565, 1568 (11th Cir.1996) (en banc); Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc). Plaintiffs asked this court for an injunction pending appeal, which, if granted, would have enjoined the county defendants from conducting manual recounts and/or enjoined the state defendants from certifying the results of the Presidential election that contained any manual recounts. We denied the motion without prejudice. Touchston v. McDermott, 234 F.3d 1161 (11th Cir.2000).

Plaintiffs appeal from the district court’s order denying a preliminary injunction. While this appeal has been pending, several things have transpired which have materially altered the status of the case.

First, the Florida Supreme Court, in consolidated cases in which the plaintiffs in the case before us were not parties, has interpreted Florida’s statutory election system to permit selective manual recounting in counties chosen by a candidate or his political party. Palm Beach County Canvassing Bd. v. Harris, 772 So.2d 1220 (Fla.), vacated by Bush v. Palm Beach County Canvassing Bd., — U.S. -, 121 S.Ct. 471, — L.Ed.2d - (2000). In effect, the Florida Supreme Court removed any doubt that may have existed as to whether Florida’s vote counting scheme operates as the plaintiffs allege in their verified complaint. Given the court’s ruling, plaintiffs’ constitutional claims now present pure questions of law.

Second, a series of events has highlighted the current and future constitutional injury to the plaintiffs and those similarly situated. Already, Volusia County and Broward County have included the results of manual recounts of ballots, based on requests by the Florida Democratic Party, in the November 26 official certification by the Elections Canvassing Commission. These manual recounts proceeded under the standardless vote counting scheme at issue and thus necessarily included some “votes” that were not detected by the vote tabulating machines but were counted because county elections officials determined the “intent” by examining the ballot. Plaintiffs languish under the very real possibility of further injury because of the “contest” suit brought by Vice President Gore in Leon County pursuant to Fla. Stat. § 102.168. Gore v. Harris, No. CV-00-2808 (Fla.Cir.Ct. Nov. 27, 2000). In that litigation, Gore claims that legal votes (which his complaint calls “indentations” in punch card ballots) have not been counted in Miami-Dade and Palm Beach Counties. The lawsuit seeks a judicially-mandated manual recount of ballots in these counties and asks that new totals, which would include indented ballots, be added to the certified total. Although the trial court ruled against the need for further recounts, an appeal has already been taken and the matter is pending with the Florida Supreme Court. Gore v. Harris, No. SC00-2431 (Fla.) (filed Dec. 5, 2000). Thus, the potential for further injury to the plaintiffs and those similarly situated is very real.

In light of these events and the fact that this appeal presents pure questions of law, plaintiffs have moved this court to consider the merits of their claims and to direct the entry of an injunction.

In the ensuing analysis, the question arises whether the Florida Supreme Court’s decision in Harris announced a new vote counting scheme for statewide elections in Florida or whether it merely interpreted the pre-existing vote counting model. Either answer to this question presents a pure question of constitutional law. In Part III, I address the question from the starting point that the Florida Supreme Court announced a new vote counting model for Florida. In Part IV, I address the question from the other starting point — that the Florida Supreme Court merely clarified the pre-existing vote counting model. Before I embark on the analysis, however, a discussion of the competing “models” that have been presented as properly implementing Florida’s statutory election system is appropriate and instructive. Part II undertakes this discussion.

II.

In Palm Beach County Canvassing Bd. v. Harris, 772 So.2d 1220 (Fla.), vacated by Bush v. Palm Beach County Canvassing Bd., — U.S. -, 121 S.Ct. 471, — L.Ed.2d - (2000), the Florida Supreme Court was faced with conflicting interpretations of the state’s election statutes. The Florida Secretary of State, as appellee before the supreme court, interpreted the statutes as having created one vote counting model, and the Florida Attorney General, as intervenor-appellant, interpreted the statutes as embodying a different model. In Harris, the court rejected the Secretary of State’s interpretation in favor of the interpretation advocated by the Attorney General.

In order to understand the court’s decision in Harris, one must consider two things. First, one has to understand how Florida voters cast their ballots in a general election, including the one held on November 7. Second, one must compare the model for counting votes advocated by the Secretary of State with the model that emerged from the Florida Supreme Court’s opinion.

In the November 7 election, voters in 65 Florida counties cast their votes on paper ballots read by vote tabulating machines. For ease of discussion, I describe the voting process as it occurs in counties that use punch card ballots. A voter can return a punch card ballot in one of three conditions: (1) the voter may take a ballot but choose not to vote in any election or referendum, so that the ballot contains no punched holes when returned; (2) the voter may vote in some but not all contests, so that the ballot contains punched holes in some races when returned; or (3) the voter may vote in all contests, so that the ballot is returned with a hole punched for every race. If a voter returns the ballot with holes punched in some contests but not others, the ballot is said to be “under-voted.”

To count the votes, the ballots are fed into a punch card reading machine (the “vote tabulating machine”) programmed to tabulate votes based on the location of holes punched. This machine count is conducted in every election, and, in most elections, is the only count. Recognizing that machines are not infallible, however, the Florida legislature created a failsafe manual recount provision that permits a candidate or political party to request a manual recount to verify the machine tabulation. While the process for counting votes is fixed by statute, there is room for interpretation in its implementation. Perhaps the most important part of the statutory system left open to interpretation is what constitutes a valid vote. The Florida Supreme Court noted in Harris that the ultimate goal in conducting an election is “to reach the result that reflects the will of the voters.” Harris, 772 So.2d at 1228. The election statutes, however, do not provide guidelines outlining how the will of individual voters should be determined from their ballots. It is this lack of guidance that gave rise to the differing interpretations propounded by the Secretary of State and the Attorney General. According to the Secretary, a voter’s will is only adequately expressed by properly casting a vote such that the machine can read it. Under the Attorney General’s interpretation, with which the supreme court agreed, a vote is valid if it demonstrates the voter’s intent in any ascertainable manner, whether read by the machine or not. To understand the model that emerged from Harris, one must first examine the model as understood by the Secretary of State.

The Secretary’s vote counting model, which was in place prior to the supreme court’s decision, applied a fixed, objective standard for determining voter intent— voters were required to indicate their voting intent unequivocally by marking their ballots in such a way that the vote tabulating machine, with its pre-programmed evaluation standard, could read it. I refer to this vote counting model as the “machine model,” because it counts as valid only those votes that the vote tabulating machine can read and record. The machine model thus relies on an objective tabulating machine that admits of no discretion to count votes — if a vote is properly cast according to the instructions given to the voter, the machine will count it.

Under the machine model, the purpose of the manual recount provision (the fail-safe in the statutory election system) is to allow a candidate or his party to request human verification that the vote tabulating machine functioned properly. This construction of the manual recount provision explains why a canvassing board is given three alternatives in section 102.166(5) in the event that it grants a manual recount request and the three-precinct sample manual recount reveals “an error in the vote tabulation.” The first two options permitted under section 102.166(5) do not require a complete manual recount of votes county-wide, but rather involve making repairs to the machine tabulating system so that it properly counts the votes. Only the third option available to the canvassing board permits a county-wide manual recount of ballots. The availability of these alternative solutions to correct an error in vote tabulation suggests that a full manual recount is appropriate only when the machine tabulating system has failed irreparably.

The Secretary of State, pursuant to her authority under section 97.012(1), interpreted the statutory system as the machine model. Nevertheless, the Florida Supreme Court, in its November 21 decision, rejected the machine model and, in effect, propounded a different model requiring a fluid, subjective test for ascertaining voter intent when counting votes.

The Florida Supreme Court ruled that a ballot marked improperly, so that a vote tabulating machine reads it as undervoted, must nevertheless be examined for any evidence of voter intent that might be construed as a vote. This conflicts with the Secretary of State’s position that voter intent is sufficiently discerned by properly functioning vote tabulating machines. According to the supreme court, ballots must be inspected by hand because vote tabulating machines do not sufficiently read voter intent. The vote counting model that emerged from the supreme court’s decision requires the counting of votes improperly cast (according to the Secretary’s model) as valid votes if, applying a subjective standard, voter intent can be ascertained by manual inspection of the ballot.

While the court endorsed counting votes by looking at each race on a ballot to determine whether the voter intended to cast a vote in that race, the court did not provide uniform standards for counties to follow in determining voter intent. The court left to each county canvassing board that conducts a manual recount the unfettered discretion to set its own standards. Under this standardless system, a mark on a punch card ballot that is deemed a sufficient showing of intent to be counted as a vote in one county might be deemed a non-vote by another county.

Furthermore, although the court held that vote tabulating machines do not necessarily discern valid expressions of voter intent, it did not order that all 65 counties that use such machines begin manually examining all undervoted ballots for any sign of voter intent. Rather, the court left the candidates or their parties with the option of requesting a count of undervoted ballots by invoking the manual recount statute in any one or more counties.

Accordingly, applying Harris to my punch card example, indentations on punch card ballots — which I call “dimple votes”— may be counted as valid votes in selected counties. The necessary implication of this model, given that the machines are not programmed to count dimples, is that a vote tabulating machine is merely a screening device — a method of determining the intent of voters who properly punched their ballots — that is inadequate as a tabulating device because- it fails to count all valid votes.

If the vote tabulating machines serve merely as screening devices in counting valid votes, then the legislature, in enacting sections 102.166(4)-(7), inaptly refers to the process of manually counting dimple votes as a “recount.” In fact, a county’s initial vote count (including the automatic recount) is not complete until all ballots containing non-votes in any race have been examined manually. Nevertheless, section 102.166(4) provides that such a manual examination of ballots will be conducted only at a candidate or political party’s request, and only in those specific counties chosen by the candidate or political party. In other words, while Hams presumes that vote tabulating machines will not count all valid votes, it precludes the counting of remaining votes except in those counties selected by a candidate or his party. Under this “selective dimple model,” dimple votes cast in a county where no “recount” is requested are simply not counted.

Under the selective dimple model, the standard of evaluating voter intent (i.e., what constitutes a valid vote) in a manual recount will differ from the standard applied by the machines in the initial count. The model, therefore, lends itself to several undesirable results.

Since the selective dimple model leaves to the candidates the decision of whether and where dimple votes should be included in the final vote tally, the system encourages candidates to cherry-pick — to carefully select the counties in which to request that ballots be manually examined for dimple votes. Under the selective dimple model, a candidate will choose the counties based on: (1) the percentage of the total machine-tabulated vote received; (2) the size of the county, measured by the total number of ballots cast in the election; and (3) the political makeup of the canvassing board in the county. A candidate will want dimple votes counted in counties where he captured a greater proportion of the machine tabulated vote than did his opponent, because the candidate can expect that he will likely take a similar proportion of the dimple votes. A candidate will favor counties where the most ballots were cast because those counties will have the most dimple votes. The political composition of the county canvassing board will be critical to a candidate in making selective manual count requests for two reasons. First, the election statutes give the canvassing board unfettered discretion to honor a candidate’s request to manually examine ballots. Second, if the canvassing board grants the request, the election system affords the canvassing board unfettered discretion to set the standards for determining which markings on a ballot demonstrate voter intent sufficient to constitute a vote. Thus, a candidate is more likely to have his request for a manual count granted, and to receive favorable interpretations of voter intent, in counties where the candidate shares a political party affiliation with the majority of the canvassing board.

As discussed above, section 102.166(5) allows the county canvassing board to conduct a recount only if the results of the recount “could affect the outcome of the election.” Seemingly, the candidate who received the most votes state-wide according to the machine tabulation could never demonstrate that a manual recount of any county could affect the outcome of the election, since adding dimple votes would only serve to increase that candidate’s margin of victory. Thus, it is doubtful that a county canvassing board would, in its discretion, grant such a candidate’s request for the sample manual recount. Arguably, however, granting the candidate’s request could affect the outcome of the election if his opponent is granted full recounts in other counties and thereby gains a significant number of votes. Given that canvassing board has limited time to certify the election results, and that one board may not know whether another county will manually recount its ballots, I question exactly what remains to guide a canvassing board in its decision to grant or deny a manual count.

The selective dimple model also encourages candidates to manipulate the timing of manual recount requests so as to use the statutory limitations period to foreclose his opponent from making his own requests for manual counts. Since the manual recount statute cuts off a candidate’s right to request a manual examination of ballots, a candidate who stays his request until the midnight hour may pin his opponent against the statutory deadline. Thus, by gaming the timing and location of recount requests under the selective dimple model, a candidate can maximize the count of dimple votes cast for him while minimizing the number of dimple votes counted for his opponent.

Prior to the supreme court’s decision in Harris, the Division of Elections interpreted the statutory election system as creating a machine model. The decision, however, indicated that the selective dimple model is the proper vote counting scheme under the statutory election system. In Part III, therefore, I discuss whether the supreme court’s decision constituted a post-election change in Florida’s vote counting model, in derogation of the principles set forth in Roe v. Alabama, 68 F.3d 404 (11th Cir.1995) (“Roe III”). In Part TV, I consider whether the selective dimple model that emerged from Harris infringes upon plaintiffs’ rights in violation of the Fourteenth Amendment.

III.

Plaintiffs contend that Harris materially altered Florida’s vote counting model after the November 7 election. They argue that retroactively validating defective votes by judicial decree violates the rule established in Roe.

While federal courts generally do not intervene in “garden variety election disputes,” our involvement is appropriate and necessary when “the election process itself reaches the point of patent and fundamental unfairness” indicating a violation of due process for which relief under 42 U.S.C. § 1983 is appropriate. Curry v. Baker, 802 F.2d 1302, 1315 (11th Cir.1986) (internal citations omitted). The Supreme Court has held that “the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” Reynolds v. Sims, 377 U.S. 533, 555, 84 S.Ct. 1362, 1378, 12 L.Ed.2d 506 (1964).

In the Roe, cases, we were presented with allegations that a post-election judicial interpretation of a state’s election laws required the inclusion of theretofore invalid votes, which amounted to stuffing the ballot box. See Roe v. Alabama, 43 F.3d 574, 581 (11th Cir.1995) (“Roe I”). An Alabama statute required a person voting by absentee ballot to execute an affidavit in the presence of a “notary public or other officer authorized to acknowledge oaths or two witnesses 18 years of age or older.” Id. at 577, (citing Ala.Code § 17-10-7 (1980)). During a general election held on November 8, 1994, “[bjetween 1000 and 2000 absentee voters failed to properly complete their affidavits, either by failing to have their signatures notarized or by failing to have them witnessed by two people.” Id. at 578. Pursuant to the applicable statute, those ballots were not counted — but were set aside as contested ballots. The election results in one race were particularly close — informal estimates placed the leading candidates “a mere 200 to 300 votes apart without counting the contested absentee ballots.” Id. Two absentee voters, on behalf of themselves and others similarly situated, filed suit in state court seeking an order that the contested absentee ballots be counted. The court ordered that certain of the absentee ballots be counted, stating that “[ajbsentee ballots may not be excluded from being counted because of a lack of notarization or a lack of witnesses.” Id. (emphasis in original). The court further ordered that the Secretary of State refrain from certifying the vote totals until the new count, including the contested absentee ballots, was forwarded to him. Id.

Larry Roe, on behalf of himself and other similarly situated Alabama voters, brought suit in the United States District Court for the Southern District of Alabama alleging that the counting of absentee ballots, in contravention of the state’s past practice, violated the Fourteenth Amendment. The district court agreed, finding that “the past practice of the Alabama election officials prior to [the] general election has been to refrain from counting any absentee ballot that did not include notarization or the signatures of two qualified witnesses,” that “the past practice of the Secretary of [the] State of Alabama has been to certify Alabama election results on the basis of vote counts that included absentee votes cast only by those voters who included affidavits with either notarization or the signatures of two qualified witnesses,” and that the circuit court’s order changed this past practice. Id. at 579. The district court ordered that the contested ballots be preserved and protected; that the Secretary refrain from certifying election results based on a vote count that included the contested absentee ballots; that Alabama’s sixty-seven county election officials forward vote totals to the Secretary without counting the contested absentee ballots; and that the Secretary, upon receipt of those vote totals, certify the election results. Id.

Defendants appealed, and we certified the question to the Alabama Supreme Court: “WHETHER ABSENTEE BALLOTS THAT, ON THE ACCOMPANYING AFFIDAVIT ENVELOPE, FAIL TO HAVE TWO WITNESSES AND LACK PROPER NOTARIZATION ... MEET THE REQUIREMENTS OF ALABAMA LAW ... TO BE COUNTED IN THE NOVEMBER 8, 1994 GENERAL ELECTION.” Roe I, 43 F.3d at 583. The Alabama Supreme Court answered in the affirmative, stating that the signature of the voter alone, if accompanied by the voter’s address and reason for voting absentee, satisfies the statute’s requirements. Roe v. Mobile County Appointment Bd., 676 So.2d 1206 (Ala.1995). After receiving the supreme court’s response, we remanded the case to the district court for a determination of whether, prior to and at the time of the November 8, 1994 general election, the practice in Alabama had been to reject or, conversely, to count absentee ballots whose envelope did not include the signature of either a notary public or two witnesses. Roe v. Alabama, 52 F.3d 300 (11th Cir.1995) (“Roe II”). The district court found, after trial of the case, that the practice in Alabama prior to the November 8, 1994 election had been uniformly to exclude ballots not in conformity with the literal requirements of the statute. Given this finding, the district court concluded that the plaintiffs were entitled to relief, for “to include the contested ballots in the vote totals would depreciate the votes of [the plaintiff class]” in violation of the Fourteenth Amendment. Roe III, 68 F.3d at 407. The district court entered a permanent injunction that, among other things, directed the Secretary of State to certify the results of the elections.

Defendants again appealed, arguing that the court should have given effect to the Supreme Court of Alabama’s answer to the certified question. We noted in response that “the Alabama Supreme Court, in answering our question, construed an Alabama statute; the court did not, and was not called upon to, decide whether the counting of the contested ballots cast in the ... election — in the face of Ala.Code § 17-10-4 and in the face of a uniform state-wide practice of excluding such ballots — infringed the [plaintiff] class’ constitutional rights.” Id. at 409. We affirmed the decision of the district court, confirming our conclusion in Roe I that such a post-election change in the applicable law “demonstrated fundamental unfairness.” Roe I, 43 F.3d at 580.

As in Roe, the appropriate analysis in this case begins with an examination of Florida’s past practice in tallying its election results. The past practice of Florida counties using machine-read ballots (whether they are optical scanning or punch card ballots) has been to certify the machine tabulation of votes as the county’s official vote count. In keeping with that practice, no counties in the November 7 election supplemented the machine counts with hand counts of undervoted ballots before submitting their results to the Secretary of State. If the machines were merely screeners on November 7 as the selective dimple model presumes, then the election officials in each county should have examined all undervoted ballots on the night of the election. That they did not do so is evidence that either the Florida Supreme Court changed the election law or that county election officials were shirking their duties.

The interpretations of the election statutes promulgated by Florida election offi-dáis before the state supreme court’s decision are also of paramount interest. The Secretary of State is the chief election officer of Florida, and it is her responsibility to “[o]btain and maintain uniformity in the application, operation, and interpretation of the election laws.” Fla. Stat. § 97.012(1).

Pursuant to section 106.23(2), the Division of Elections, a division within the Department of State, issued three advisory opinion letters on November 13, 2000, advocating the machine model for counting votes under the statutory system. The letters were written in response to requests asking the Division to define the meaning of “error in the vote tabulation” in the statutory manual recount provision. The Division stated that “ ‘[a]n error in the vote tabulation’ means a counting error in which the vote tabulation system fails to count ... properly marked mark-sense or properly punched punch card ballots.” Advisory Opinion Letter from L. Clayton Roberts, Director, Division of Elections, Nov. IS, 2000. Significantly, the Division opined that the “inability of a voting system! ] to read an ... improperly punched punch card ballot ... is not an ‘error in the vote tabulation.’ ” Id.

Apparently, however, state officials could not agree about the meaning of the phrase “error in the vote tabulation.” Attorney General Robert Butterworth, in a letter to the Palm Beach County Canvassing Commission, took issue with the November 13 opinion issued by the Division of Elections. He noted in his letter that “[t]he division’s opinion is wrong is several respects,” and stated that “[w]here a ballot is so marked as to plainly indicate the voter’s choice and intent, it should be counted as marked unless some positive provision of law would be violated.” Letter from Robert A. Butterworth to Hon. Charles Burton, November H, 2000. Insofar as Attorney General Butterworth’s statement can be read to suggest that all ballots should have been examined on November 7, it is noteworthy that no county canvassing board member has, to my knowledge, been charged with neglect of duty under Fla. Stat. § 104.051 for failure to take such action. Fla. Stat. § 104.051 (“Any official who willfully refuses or willfully neglects to perform his or her duties as prescribed by this election code is guilty of a misdemeanor of the first degree.”).

The legislative history of the manual recount provision also indicates that it was added to ensure an accurate count of properly cast (as opposed to dimpled or otherwise mismarked) votes. The manual recount provision was enacted as part of the Voter Protection Act of 1989 to provide a remedy to candidates who believed the vote tabulating equipment was not working properly in a given county. The Senate Staff Analysis and Economic Impact statement on the legislation indicated that it was enacted, in part, in response to a problem in a prior election in which “an apparent software ‘glitch’ or error was responsible for an incident in Ft. Pierce when a machine would count the Democratic votes, but would not accept Republican ones.” Bush v. Palm Beach County Canvassing Bd., Pet. For Cert. Resp. of Harris, p. 13 n. 10, cert. granted, — U.S. -, 121 S.Ct. 510, 148 L.Ed.2d 478.

As the evidence shows, then, Harris interpreted the state election'system in a way that was inconsistent with previous state practice. If this was a post-election changing of the rules, rather than merely an interpretation of an ambiguous vote counting model, such a change is fundamentally unfair in three ways. First, deciding after the election to count votes that do not satisfy requirements set forth before the election dilutes the votes of those who attended the polls and indicated their intent in accordance with the instructions. This is directly analogous to the violation in Roe. Cf. Roe I, 43 F.2d at 581.

Second, to the extent that Harris constitutes a change in election procedures, it creates a vote dilution problem more egregious than that in Roe. In addition to dilution caused by counting improperly executed ballots that nevertheless express a clear intent to cast a vote, Florida voters also suffer from dilution by the inevitable counting of markings on ballots that were not intended as votes. The wholly arbitrary standards for determining voter intent in various counties ensure the erroneous addition of countless non-votes to a candidate’s tally. This bolsters plaintiffs’ claim of a Roe-type violation, which dilutes the votes of bona fide voters in violation of the First and Fourteenth Amendments.

Third, if Harris changed the definition of a “valid vote” after the running of the statutory limitations period within which a candidate could ask for a manual recount, such a change would work fundamental unfairness. By the time the court’s decision was announced on November 21, the time limit in which the candidates or their parties could request manual counts had elapsed. Had the candidates known that Florida’s statutory election system allowed the selective mining of votes through its manual recount provision, they might have made use of the system to request that at least some of the 180,000 ballots containing non-votes in the presidential race be examined sometime before November 21. The court presumably recognized this problem when it offered to extend the time period for requesting manual counts. Harris, 772 So.2d at 1220.

I find plaintiffs’ argument that the court retroactively changed the state’s vote counting model extremely persuasive. Because of past practice, interpretations of state officials prior to Harris, and the legislative history, I believe that the Florida Supreme Court superimposed a new model onto the state’s statutory election scheme. Because of this circuit’s clear precedent in Roe, I would hold that the Florida Supreme Court unconstitutionally changed the election system after the election had taken place. This alone is reason to reverse.

Even if I am incorrect in assessing Harris as a post-election change in violation of Roe, plaintiffs’ allegations that the selective dimple model itself is constitutionally infirm warrant a full analysis.

IV.

Florida law gives every qualified voter one vote in its statewide election of presidential electors. In counting those votes under the selective dimple model, however, it employs a county unit system which works to disenfranchise voters based on where they reside. As noted in my description of the selective dimple model, voters who express their intent to vote for President in a manner undetectable by a vote tabulating machine will have their votes counted only at the behest of a candidate or political party. The statutes provide no way for a voter, himself, to demand that his “dimple” or other marking be counted before the vote total is certified; he must wait for a qualified partisan proxy to do it for him. If no qualified proxy requests a manual count, the untabulated votes simply remain uncounted.

The selective disenfranchisement caused by the selective dimple model implicates two similar but distinct fundamental rights: the right to vote and the right of freedom of association. These rights, embodied in the First Amendment, are enforced against the states by the Fourteenth Amendment. The Equal Protection Clause of the Fourteenth Amendment guarantees, as its name suggests, that no person shall be denied “equal protection of the laws.” U.S. Const, amend. XIV, § 1. Thus, I first examine in Part A, Sections 1 and 2, whether the selective dimple model impermissibly classifies and discriminates against certain voters or groups of voters. I then turn in Part B to an analysis of the vote counting scheme under the Due Process Clause of the Fourteenth Amendment, which guarantees that no State “shall deprive any person of life, liberty, or property, without due process of law.” Id. The concept of “liberty,” as interpreted by the United States Supreme Court, includes a right to freedom of association. See NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460, 78 S.Ct. 1163, 1171, 2 L.Ed.2d 1488 (1958) (“It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.”). My inquiry, therefore, focuses on whether the Florida vote counting scheme, as applied in this case, infringes upon plaintiffs’ right of association in violation of the Due Process Clause.

Under the selective dimple model, if a candidate in a Florida statewide race is trailing his opponent by a small number of votes following the machine counts, his only chance to win is to mine for additional votes via manual counts. The candidate will turn, naturally, to those counties in which he believes he can make up the difference. As discussed in Part II.B.2, supra, in considering whether to ask for a manual count in a particular county, a candidate will consider (1) the percentage of the vote he has carried in the county thus far, (2) the size of the county, and (3) the political makeup of the decision-making body in the county. Thus, a candidate would, under the current system, be likely to ask for manual counts in large counties in which his party predominates.

These observations underscore the adversarial structure of the Florida scheme which allows candidates to play games with individual rights. The selective dimple model puts voters in no better a position than children in a schoolyard game yelling, “Pick me, pick me!” The candidates, as team captains, will only choose those who are sure to help them win. Smaller, less populated counties — like frail schoolchildren — have almost no chance of being picked. At the end of choosing teams, those who aren’t chosen simply don’t get to play. This scheme clearly contravenes the long-settled principle that “[qualified citizens not only have a constitutionally protected right to vote, but also the right to have their votes counted.” Duncan v. Poythress, 657 F.2d 691, 700 (5th Cir. Unit B 1981) (citing Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274 (1884) and United States v. Mosley, 238 U.S. 383, 35 S.Ct. 904, 59 L.Ed. 1355 (1915)). As Justice Douglas wrote in Gray v. Sanders, 372 U.S. 368, 379-80, 83 S.Ct. 801, 808-09, 9 L.Ed.2d 821 (1963):

[o]nce the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote — whatever their race, whatever their sex, whatever their occupation, whatever their income, and wherever their home may be in that geographical unit. This is required by the Equal Protection Clause of the Fourteenth Amendment. The concept of “we the people” under the Constitution visualizes no preferred class of voters but equality among those who meet the basic qualifications. The idea that every voter is equal to every other voter in his State, when he casts his ballot in favor of one of several competing candidates, underlies many [United States Supreme Court] decisions.

The Florida vote counting model, as interpreted by the Florida Supreme Court, works to deprive voters of their right to vote based on their county of residence and thereby denies them equal protection of the laws.

In addition to facilitating discrimination against individuals on a geographical basis, the selective dimple model encourages wily candidates to fence out voters on the basis of their party affiliation. Plaintiffs claim that, as Bush voters, their vote has been diluted by the selective enfranchisement of dimple voters in heavily populated, predominately Democratic counties. Specifically, they allege that Vice President Gore and the Democratic Party requested and received manual counts in Volusia, Palm Beach, Broward, and Miami-Dade counties — all counties in which he received approximately six out of every ten machine-counted votes. His opponent, Governor Bush, did not request manual counts in any county. I agree that the selective dimple model, as applied, is tailor-made for unconstitutional party-based discrimination.

“The right to form a party for the advancement of political goals means little if a party can be ... denied an equal opportunity to win votes.” Williams v. Rhodes, 393 U.S. 23, 31, 89 S.Ct. 5, 10-11, 21 L.Ed.2d 24 (1968). Under the selective dimple model, the state encourages candidates to wield the manual count provision as a sword to cut down the strength of an opposing party’s support. The game is best played by the candidate who is able to enfranchise scores of his own supporters while validating as few extra votes as possible for his opponent. Plainly, then, the vote counting scheme encourages candidates to discriminate between groups of voters — organized in county units — based on the predominant party affiliation of each county’s voters.

The question is whether this gamesmanship works a constitutional injury not only to the individual voters who are not chosen for enfranchisement, but also to those groups of voters whose power is intentionally and systematically diluted by the selective validation of votes for an opposing party’s candidate. See Riddell v. National Democratic Party, 508 F.2d 770, 777 (5th Cir.1975) (“Any interference with the freedom of a party is simultaneously an interference with the freedom of its adherents.”). “The unlawful administration by state officers of a state statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination.” Snowden v. Hughes, 321 U.S. 1, 8, 64 S.Ct. 397, 401, 88 L.Ed. 497 (1944); see also Gamza v. Aguirre, 619 F.2d 449, 453 (5th Cir.1980). Such discrimination “may appear on the face of the action taken with respect to a particular class or person, or it may only be shown by extrinsic evidence showing a discriminatory design to favor one individual or class over another not to be inferred from the action itself.” Snowden, 821 U.S. at 8, 64 S.Ct. at 401. Additionally, “the determination that particular conduct constitutes a constitutional deprivation rather than a lesser legal wrong depends on the nature of the injury, whether it was inflicted intentionally or accidentally, whether it is part of a pattern that erodes the democratic process or whether it is more akin to a negligent failure properly to carry out the state ordained electoral process and whether state officials have succumbed to ‘temptations to control ... elections by violence and by corruption.’ ” Gamza, 619 F.2d at 453.

The action taken in the instant case by Vice President Gore and the Democratic Party, in selecting heavily populated, predominately Democratic counties in which to request manual counts, evinces purposeful discrimination against voters who reside in non-Democrat-dominated counties. The injury inflicted upon his opponent’s supporters is planned vote dilution — undoubtedly “a pattern that erodes the democratic process.” This injury is certainly actionable, for “the right to associate with the political party of one’s choice is an integral part of [First and Fourth Amendment] freedoms,” Communist Party v. Whitcomb, 414 U.S. 441, 449, 94 S.Ct. 656, 662, 38 L.Ed.2d 635 (1974), and purposeful, systematic disenfranchisement of a party’s members interferes with the ability of the group to express its ideas as a whole.

Given the Florida Supreme Court’s endorsement of what I have been calling the selective dimple model, I feel confident in saying that planned vote dilution by use of selective manual counts will not be an isolated event in Florida’s statewide elections. Furthermore, that such action is advocated by the State in its statutory election system and sanctioned when the vote totals are certified by the state Election Canvassing Commission is, I believe, sufficient to deem it state action for purposes of section 1983. Where there exists such a state sanctioned discriminatory scheme targeting a particular group of voters on the basis of their political association, relief under the equal protection clause is not only appropriate, but is required. See Snowden, 321 U.S. at 11, 64 S.Ct. at 402 (“Where discrimination is sufficiently shown, the right to relief under the equal protection clause is not diminished by the fact that the discrimination relates to political rights.”); see also Shakman v. Democratic Org., 435 F.2d 267, 270 (7th Cir.1970) (“The equal protection clause secures from invidious official discrimination the voter’s interest in a voice in government of equal effectiveness with other voters.”).

In addition to encouraging unlawful discrimination against voters based on their county of residence or political affiliation, it is clear that Florida’s vote counting scheme for statewide elections unconstitutionally burdens a fundamental right secured by the Constitution: the freedom of association. “[T]he right of individuals to associate for the advancement of political beliefs ... rank[s] among our most precious freedoms.” Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968). As explained above, the right to freedom of association is guaranteed by the First Amendment and protected against state impairment by the Due Process Clause of the Fourteenth Amendment. See id. at 30-31, 89 S.Ct. 5.

On November 7, plaintiffs expressed their beliefs about who should hold the office of President of the United States. Similarly, by voting in the national election, all Bush voters expressed the same sentiment. In other words, plaintiffs and Bush voters attempted to associate collectively for the advancement of the belief that George W. Bush should be President of the United States. The right of association protects this activity of “engaging] in association for the advancement of beliefs and ideas.” NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460, 78 S.Ct. 1163, 1171, 2 L.Ed.2d 1488 (1958).

By counting the dimpled votes in some but not all counties, the state of Florida infringes upon the plaintiffs’ right, and the right of all voters, to associate for the advancement of their favored political candidate. See Sowards v. Loudon County, Tenn., 203 F.3d 426, 432 (6th Cir.2000) (stating “[sjupport of a political candidate falls within the scope of the right of political association”); Mariani v. United States, 212 F.3d 761, 771 (3d Cir.2000) (stressing “the right to association through support of the candidate of one’s choice”). Consider, for example, a Bush voter in Brevard County whose vote was counted by the vote tabulating machine; his right to political association is diminished when other votes for Bush are not counted. Just as plaintiffs’ freedom of association “encompasses ‘the right to associate with the political party of one’s choice,”’ see Buckley v. Valeo, 424 U.S. 1, 15, 96 S.Ct. 612, 633, 46 L.Ed.2d 659 (1976), plaintiffs’ right also entails the freedom to associate with like-minded voters in support of a candidate of their choice.

By deciding that dimples were valid votes but that those votes would be counted only in counties selected by the candidates, the Florida Supreme Court’s decision disenfranchised dimple voters in the remaining counties and thereby trampled the right of association enjoyed by plaintiffs and all Florida voters. The selective dimple model inhibits voters from demonstrating their true electoral strength. By interfering with plaintiffs’ ability to associate with other Bush voters so as to “enhance their political effectiveness as a group,” see Patriot Party of Allegheny Cty. v. Allegheny County Dep’t of Elections, 95 F.3d 253, 262 (3d Cir.1996) (citing Anderson v. Celebrezze, 460 U.S. 780, 794, 103 S.Ct. 1564, 1572-73, 75 L.Ed.2d 547 (1983)), the selective dimple model denies plaintiffs’ and other Bush voters the fruits of their association, to wit: their political impact. See Republican Party of Conn. v. Tashjian, 770 F.2d 265, 278 (2d Cir.1985) (explaining that “the Williams Court intimated that a statutory regime denying a group the fruit of their association— political impact — runs afoul of the first amendment no less than one precluding association itself’) (citing L. Tribe, American Constitutional Law 779 (1978)).

“Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.” NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460, 78 S.Ct. 1163, 1171, 2 L.Ed.2d 1488 (1958). As such, this constitutional right may be limited only when “a compelling state interest in the regulation of a subject within the State’s constitutional power to regulate exists.” NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 341, 9 L.Ed.2d 405 (1963); see also Williams, 393 U.S. at 31, 89 S.Ct. at 11. I can find no compelling interest in Florida’s vote-counting scheme that counts some valid votes but not others. See Williams, 393 U.S. at 30-31, 89 S.Ct. at 10-11 (explaining that due process requires that the state accomplish its goal of administering elections fairly to avoid diluting fundamental liberties); see also Riddell v. National Democratic Party, 508 F.2d 770, 776-77 (5th Cir.1975) (citing Kusper v. Pontikes, 414 U.S. 51, 57, 94 S.Ct. 303, 307, 38 L.Ed.2d 260 (1973) (stating “ ‘[t]he states may not infringe upon basic constitutional protections’ and ‘unduly restrictive state election laws may so impinge upon freedom of association as to run afoul of the First and Fourteenth Amendments’ ”)). Accordingly, I would hold that the state of Florida’s current election scheme infringes upon plaintiffs’ right to association in violation of the First and Fourteenth Amendments.

The majority holds that plaintiffs have failed to demonstrate an irreparable injury, and thus we need not consider the likelihood of success on the merits. This holding can mean one of two things: either the majority is contending that plaintiffs have suffered no injury, or that the injury that has been suffered is reparable. We consider each of these possibilities in turn.

If the majority is resting its decision on the ground that plaintiffs have suffered no injury, then it has agreed with the argument of the appellees and the Attorney General that an injury does not exist in this case because plaintiffs voted for the putative winner, George W. Bush. In other words, unless a voter cast his vote for a losing candidate, the voter cannot be found to have suffered any cognizable constitutional injury — the existence of his constitutional right is dependent upon the outcome of the election. It defies common sense, however, to suggest that a voter has no cause of action for the debasement of his vote, and the consequent denial of the equal protection of the laws, unless his candidate has lost the election.

Once it is clear that plaintiffs’ constitutional rights are not dependent upon the outcome of the election, the question becomes whether and when plaintiffs suffered any redressable injury. I contend that the injury to the voters in the instant case occurred once the time limit for requesting manual recounts had expired and at least one but not all counties had certified results containing manual recounts conducted pursuant to section 102.166. It was at that moment we could be sure that some voters had been disenfranchised while others had suffered a debasement of their vote by the selective addition of dimpled votes to the total. Thus, it is clear under federal law and under the facts of this case that plaintiffs have suffered a constitutional injury.

Perhaps, then, the majority did not mean to say that plaintiffs suffered no injury, but that whatever injury they may have suffered was not irreparable. It was posited to the court during oral argument that even if plaintiffs had been injured, they still had adequate redress in the state courts. This is a wholly fallacious argument. A voter may bring a contest suit in state court on the ground that legal votes were excluded or illegal votes included, but must show that such action was sufficient to “change or place in doubt the result of the election.” Fla. Stat. § 102.168(3)(c). Clearly, then, a Bush voter could not maintain a contest suit — he could neither allege nor establish that the inclusion of other legal votes