HUNTER v. U.S

Certiorari denied by 117 S.Ct. 1695
Certiorari denied by 520 U.S. 1211
Petition for certiorari filed by 65 U.S.L.W. 3648

Jurisdiction: Eleventh Circuit
Decision date: Tuesday, 10 December 1996

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Certiorari denied by 118 S.Ct. 51
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Decision date: Tuesday, 11 February 1997

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THE KU KLUX CASES

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Decision date: Monday, 3 March 1884

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Decision date: Tuesday, 15 February 1994

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TEFEL v. RENO

Certiorari denied by 120 S.Ct. 2657
Certiorari denied by 530 U.S. 1228
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Jurisdiction: Eleventh Circuit
Decision date: Wednesday, 14 July 1999

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Certiorari denied by 531 U.S. 875

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Decision date: Tuesday, 8 February 2000

empty empty empty empty empty (38) visits
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Certiorari denied by 531 U.S. 1010

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Decision date: Wednesday, 16 February 2000

empty empty empty empty empty (11) visits
TOUCHSTON v. McDERMOTT

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Decision date: Saturday, 9 December 2000

empty empty empty empty empty (6) visits
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Decision date: Wednesday, 6 December 2000

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Jurisdiction: U.S. Supreme Court
Decision date: Monday, 21 June 1915

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Jurisdiction: U.S. Supreme Court
Decision date: Monday, 1 June 1925

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Jurisdiction: U.S. Supreme Court
Decision date: Monday, 17 January 1944

empty empty empty empty empty (72) visits
SHERRER V. SHERRER

Jurisdiction: U.S. Supreme Court
Decision date: no Date

empty empty empty empty empty (28) visits
N. A. A. C. P. v. ALABAMA

Remanded by 263 Ga. 602

Jurisdiction: U.S. Supreme Court
Decision date: Monday, 30 June 1958

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Modified by 380 U.S. 479

Jurisdiction: U.S. Supreme Court
Decision date: Monday, 14 January 1963

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GRAY v. SANDERS

Modified by 376 U.S. 1

Jurisdiction: U.S. Supreme Court
Decision date: Monday, 18 March 1963

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Jurisdiction: U.S. Supreme Court
Decision date: Monday, 15 June 1964

empty empty empty empty empty (379) visits
WILLIAMS v. RHODES

Affirming by 290 F. Supp. 983

Jurisdiction: U.S. Supreme Court
Decision date: Tuesday, 15 October 1968

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MOORE v. OGILVIE

Jurisdiction: U.S. Supreme Court
Decision date: Monday, 5 May 1969

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Jurisdiction: U.S. Supreme Court
Decision date: Wednesday, 9 January 1974

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Jurisdiction: U.S. Supreme Court
Decision date: Monday, 19 November 1973

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BUCKLEY v. VALEO

Jurisdiction: U.S. Supreme Court
Decision date: Friday, 30 January 1976

empty empty empty empty empty (2361) visits
SINGLETON v. WULFF

Argued by 818 F.2d 730

Jurisdiction: U.S. Supreme Court
Decision date: Thursday, 1 July 1976

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CRAIG v. BOREN

Jurisdiction: U.S. Supreme Court
Decision date: Monday, 20 December 1976

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Jurisdiction: Eleventh Circuit
Decision date: Wednesday, 4 January 1995

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CAREY v. POPULATION SERVICES INTERNATIONAL

Jurisdiction: U.S. Supreme Court
Decision date: Thursday, 9 June 1977

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SHAKMAN v. DEMOCRATIC ORGANIZATION OF COOK CUNTY

Certiorari denied by 402 U.S. 909

Jurisdiction: Seventh Circuit
Decision date: Friday, 23 October 1970

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ANDERSON v. CELEBREZZE

Jurisdiction: U.S. Supreme Court
Decision date: Tuesday, 19 April 1983

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Jurisdiction: U.S. Supreme Court
Decision date: Tuesday, 25 February 1986

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Jurisdiction: U.S. Supreme Court
Decision date: Wednesday, 11 June 1986

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Jurisdiction: U.S. Supreme Court
Decision date: Monday, 30 June 1986

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AMOCO PRODUCTION CO. v. GAMBELL

Jurisdiction: U.S. Supreme Court
Decision date: Tuesday, 24 March 1987

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PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA ET AL. v. CASEY, GOVERNOR OF PENNSYLVANIA, ET AL.

Jurisdiction: U.S. Supreme Court
Decision date: Monday, 29 June 1992

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RIDDELL v. NATIONAL DEMOCRATIC PARTY

Jurisdiction: Fifth Circuit
Decision date: Friday, 21 February 1975

empty empty empty empty empty (12) visits
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Certiorari denied by 116 S.Ct. 276

Jurisdiction: Eleventh Circuit
Decision date: Wednesday, 26 April 1995

empty empty empty empty empty (9) visits
RAINES, DIRECTOR, OFFICE OF MANAGEMENT AND BUDGET, ET AL. v. BYRD ET AL.

Jurisdiction: U.S. Supreme Court
Decision date: Thursday, 26 June 1997

empty empty empty empty empty (128) visits
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Jurisdiction: Fifth Circuit
Decision date: Thursday, 15 February 1979

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Jurisdiction: Fifth Circuit
Decision date: Thursday, 19 June 1980

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DUNCAN v. POYTHRESS

Certiorari granted by 102 S.Ct. 1426
Certiorari denied by 103 S.Ct. 252
Certiorari dismissed by 103 S.Ct. 368
Certiorari granted by 455 U.S. 937
Certiorari dismissed, Certiorari denied by 459 U.S. 1012

Jurisdiction: Fifth Circuit
Decision date: Monday, 28 September 1981

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BONNER v. CITY OF PRICHARD

Vacated by 121 S.Ct. 471
Certiorari denied by 402 U.S. 976
Certiorari denied by 423 U.S. 1087
Enforced by 430 U.S. 817
Certiorari denied by 451 U.S. 1019
Modified by 678 F.2d 547
Overruled by by 804 F.2d 1537
Overruled by by 938 F.2d 1255

Jurisdiction: Eleventh Circuit
Decision date: Tuesday, 3 November 1981

empty empty empty empty empty (104) visits
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Jurisdiction: Fifth Circuit
Decision date: Friday, 13 November 1981

empty empty empty empty empty (19) visits
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Jurisdiction: Eleventh Circuit
Decision date: Friday, 13 October 1995

empty empty empty empty empty (5) visits
DONOVAN v. BIERWIRTH

Certiorari denied by 103 S.Ct. 488
Enforced by 453 U.S. 322
Certiorari denied by 459 U.S. 1069

Jurisdiction: Second Circuit
Decision date: Monday, 10 May 1982

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CATE v. OLDHAM

Jurisdiction: Eleventh Circuit
Decision date: Thursday, 2 June 1983

empty empty empty empty empty (26) visits
REPUBLICAN PARTY OF STATE OF CONN. v. TASHJIAN

Probable jurisdiction noted by 106 S.Ct. 783
Affirmed by 479 U.S. 208

Jurisdiction: Second Circuit
Decision date: Thursday, 8 August 1985

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CURRY v. BAKER

Certiorari dismissed, Certiorari denied by 479 U.S. 1023

Jurisdiction: Eleventh Circuit
Decision date: Wednesday, 1 October 1986

empty empty empty empty empty (18) visits
CUNNINGHAM v. ADAMS

Jurisdiction: Temporary Emergency Court of Appeals
Decision date: Monday, 26 January 1987

empty empty empty empty empty (17) visits
BAKER v. BUCKEYE CELLULOSE CORP

Jurisdiction: Eleventh Circuit
Decision date: Friday, 30 September 1988

empty empty empty empty empty (17) visits
NORTHEASTERN FLORIDA CHAPTER v. JACKSONVILLE

Jurisdiction: Eleventh Circuit
Decision date: Friday, 2 March 1990

empty empty empty empty empty (18) visits
PATRIOT PARTY v. ALLEGHENY CTY. DEPT. OF ELECTIONS

Jurisdiction: Third Circuit
Decision date: Monday, 9 September 1996

empty empty empty empty empty (10) visits
ILLINOIS COUNCIL ON LONG TERM CARE v. BRADLEY

Certiorari denied by 113 S.Ct. 55

Jurisdiction: Seventh Circuit
Decision date: Tuesday, 18 February 1992

empty empty empty empty empty (9) visits
RICHARD FEINER AND CO. v. TURNER ENTERTAINMENT CO.

Jurisdiction: Second Circuit
Decision date: Monday, 21 October 1996

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234 F.3d 1133 TOUCHSTON v. McDERMOTT

Citation: 234 F.3d 1133 empty empty empty empty empty
Neutral citation: 2000 US App (11th) 496 0 votes
Legal status: Precedential 122 visits
Jurisdiction: Eleventh Circuit
Decision date: Wednesday, 6 December 2000
Tags related to the opinion: no Tags
Citation: list of in going and out going citations to the present case
Citator: list of judicial treatments of the present case

Page 1, 234 F.3d 1133, 1133
1133

Robert C. TOUCHSTON, Deborah Shepperd, et al., PlaintiffsAppellants, v.

Michael McDERMOTT, in his official capacity as a member of the County Canvassing Board of Volusia County, Ann McFall, in her official capacity as a member of the County Canvassing Board of Volusia County, et al., Defendants-Appellees.

No. 00-15985.

United States Court of Appeals, Eleventh Circuit.

Dec. 6, 2000.

James Bopp, Jr., Bopp, Coleson & Bostram, Terre Haute, IN, for Robert C. Touchston, Deborah Shepperd and Diana L. Touchston.

Theodore B. Olson, Gibson, Dunn & Crutcher, Washington, DC, for Ned L. Siegel.

Daniel D. Eckert, Volusia County Legal Dept., DeLand, FL, for Michael McDermott and Ann McFall.

Andrew James McMahon, West Palm Beach, FL, for Theresa Lepore and Charles E. Burton.

John W. Little, III, Steel Hector & Davis, West Palm Beach, FL, for Carol Roberts.

Lee Alan Kraftchick, Miami, FL, for David Leahy, Lawrence King, Jr. and Miriam Lehr.

John W. Little, III, Steel Hector & Davis, West Palm Beach, FL, for Katherine Harris and Bob Crawford.

John Brian Murray, Jr., Steel Hector & Davis, LLP, West Palm Beach, FL, for Clay Roberts.

Page 2, 234 F.3d 1133, 1134
L. Roland Blossom, Frank B. Gummey, III, Tura Schnebly, Volusia County Legal Dept., DeLand, FL, Leonard Berger, West Palm Beach, FL, Joseph P. Klock, Jr., Christopher Duke, John B.T. Murray, Jr., Steel Hector & Davis, LLP, West Palm Beach, FL, Bruce Rogow, Beverly A. Pohl, Bruce S. Rogow, P.A., Ft. Lauderdale, FL, John H. Fleming, James A. Orr, Allegra J. Lawrence, Carey P. DeDeyn, C. Francis Whitaker, III, Charles B. Jones, III, Sutherland, Asbill & Brennan, LLP, Atlanta, GA, for George W. Bush.

Teresa Wynn Roseborough, Sutherland, Asbill & Brennan, Atlanta, GA, for State Attorneys General, Amicus Curiae and Florida Democratic Party, Intervenor.

Charles Melvin Fahlbusch, Asst. Atty. Gen., Ft. Lauderdale, FL, for State of Florida Atty. Gen., Intervenor.

Appeal from the United States District Court for the Middle District of Florida (No. 00-01510-CV-ORL-28C); John Antoon, II, Judge.

Before ANDERSON, Chief Judge, and TJOFLAT, EDMONDSON, COX, BIRCH, DUBINA, BLACK, CARNES, BARRETT, HULL, MARCUS and WILSON, Circuit Judges.

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 ——–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 Brevard 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 Harris 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 fur, ther. (2000),

Page 3, 234 F.3d 1133, 1135
I.

A.

1.

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 Al Gore and his running-mate Senator Joseph Lieberman has enough electoral votes to win the election without the twenty-five electoral votes from Florida.Footnote 1 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.Footnote 2 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.Footnote 3 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. Footnote 4

Finally, following an order by the Florida Supreme Court on November 21, 6 all manual recounts that were completed and submitted to the Elections Canvassing

____________________

[Footnote 1]

1. A candidate must receive a majority of those electors entitled to vote. U.S. Const., Art. II, § 1 (“The Person having the greatest Number of Votes [of electors] shall be the President, if such Number be a Majority of the whole Number of Electors appointed.”). Assuming all of the electors vote in this presidential election, a candidate will need at least 270 electoral votes to win the election. Without Florida’s 25 electoral votes, the Democratic ticket has 255 electors pledged to vote for its ticket and the Republican ticket has 246 electors. Although the results are not final in New Mexico and Oregon, the number of electors in these two states is insufficient to give either candidate the election’even if one candidate wins both states. New Mexico has five electoral votes; Oregon has seven electoral votes.

[Footnote 2]

2. These numbers did not include vote totals received from overseas. Florida law permits its residents who are currently located overseas to have their ballots counted if the ballots arrive in Florida within ten days of the date of election provided the ballot is either “postmarked or signed and dated” no later than the date of election, FI. Admin. Code Ann. r. 1S-2.O13(2), (7).

[Footnote 3]

3. Volusia County finished a manual recount in time to submit its totals to the Secretary of State before the deadline on November 14. Thus, the November 14 vote totals included manually recounted ballots from Volusia County.

[Footnote 4]

4. The Republican ticket received 2,911,872 votes and the Democratic ticket received 2,910,942.

[Footnote 5]

5. I recognize that the United States Supreme Court has subsequently vacated the decision of the Florida Supreme Court and remanded the case for further proceedings. See Bush v. Palm Beach County Canvassing Bd., —-U.S. —6. 121 S.Ct. 471, —–L.Ed.2d ——-(2000). It is unclear what effect the decision of the United States Supreme Court has on the certification of votes. However, as discussed infra Part II, I believe that the Florida Supreme Court’s initial decision provides solid evidence of the manner in which Florida’s statutory election system operates.

Page 4, 234 F.3d 1133, 1136
Commission Footnote 6 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. Footnote 7

2.

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. Footnote 8

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. Footnote 9

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

____________________

[Footnote 6]

6. The Elections Canvassing Commission consists of the Governor, the Secretary of State, and the Director of the Division of Elections. Fla. Stat. § 102.111(1). In the current dispute over the presidential election, the Governor of Florida, Jeb Bush, has recused himself from the Elections Canvassing Commission because the Republican candidate for President, George W. Bush, is the brother of the Florida Governor. The Florida Governor has appointed the Agriculture Commissioner, Bob Crawford, as his replacement on the State Elections Canvassing Commission.

[Footnote 7]

7. Palm Beach County did not complete its recount by the 5:00 deadline, so the Secretary of State did not include in the final certification any of the votes gained in that county’s manual recount. Further, Miami-Dade County determined that it could not complete its manual recount by the 5:00 deadline, so the November 26 certified vote total does not include ballots added by a manual recount in that county. Broward County completed its manual recount by the deadline. Thus, the November 26 vote certification included manual recounts from Broward County and from Volusia County (as noted supra note 3). The November 26 certified vote total also included 288 overseas absentee votes that were not included in the November 18 certification. Of these 288 votes, 195 went to Governor Bush, 86 went to Vice President Gore, and 7 went to other candidates.

[Footnote 8]

8. The county supervisor of elections is an elected official with a four-year term, according to statute. Fla. Stat. § 98.015(1). Each county supervisor employs deputy supervisors. Fla. Stat. § 98.015(8). Additionally, each county has a canvassing board, which typically consists of the supervisor of elections, a county court judge, and the chair of Fla. the board of county commissioners. Stat. § 102.141(1).

[Footnote 9]

9. County canvassing boards are required to file a report on the “conduct of the election” with the Division of Elections at the same time that the results of an election are certified to the Department of State. The report shall contain information relating to any problems incurred as a result of equipment malfunctions either at the precinct level or at a counting location, any difficulties or unusual circumstances encountered by an election board or the canvassing board, and any other additional information which the canvassing board feels should be made a part of the official election record. Fla. Stat. § 102.141(6).

Page 5, 234 F.3d 1133, 1137
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 508, 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 (c) Manually recount all ballots. Fla. Stat. § 102.166(5).

3.

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.

B.

1.

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. Footnote 10

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. Footnote 11

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

____________________

[Footnote 10]

10. We note that plaintiffs “attempted” to cast their ballots because, as explained infra, it is impossible for a voter to know whether his or her vote was properly cast and duly tabulated. Plaintiffs allege that they voted for the Republican ticket, but it is conceivable that plaintiffs actually did no more than attempt to vote for the Republican ticket due to, among other possibilities, stray marks on the voting ballot.

[Footnote 11]

11. After the complaint was filed, Governor Bush moved the district court for leave to intervene as a defendant. The district court granted his motion on November 16. After this appeal was taken, the Florida Democratic Party moved this court to intervene on November 15. We granted the motion on November 29. The Attorney General of Florida moved this court to intervene on December 1. We granted the motion.

Page 6, 234 F.3d 1133, 1138
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 Broward, Miami-Dade, Palm Beach, and Volusia 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. Footnote 12

On appeal, this court ordered that the case be heard initially en bane, pursuant to Fed. R.App. Proc. 35. See Hunter v. United States, 101 F.3d 1565, 1568 (11th Cir.1996) (en bane); Banner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en bane). 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).

2.

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. Footnote 13

____________________

[Footnote 12]

12. On filing their verified complaint, plaintiffs moved the district court to enter a preliminary injunction granting the above relief. On November 14, after hearing argument from counsel, the district court denied plaintiffs’ motion. Touchston v. McDermott, 120 F.Supp.2d 1055 (M.D. Fla.2000). When the hearing began, the district court announced that it would rule on plaintiffs’ motion without entertaining any evidence. The district court also denied plaintiffs’ oral motion for an injunction pending appeal. After these denials, plaintiffs filed a notice of appeal with this court on November 14.

[Footnote 13]

13. The fact that the United States Supreme Court vacated and remanded the decision of the Florida Supreme Court is of no moment. The Florida Supreme Court’s interpretation of Florida’s statutory scheme was not questioned by the United States Supreme Court. Bush v. Palm Beach County Canvassing Bd., —-U.S. —–, 121 S.Ct. 471, ‘ L.Ed.2d———(2000). Instead, the United States Supreme Court vacated the Florida Supreme Court’s judgment because it was unsure whether the judgment was based solely on issues of state law. Because of this ambiguity, the United States Supreme Court simply requested the Florida Supreme Court to clarify the underlying rationale for their interpretation’not to clarify their interpretation itself. Id. That the judgment was vacated does not alter the fact that the election for president in Florida has been conducted pursuant to the Florida Supreme Court’s decision in Harris.

Page 7, 234 F.3d 1133, 1139
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. Footnote 14

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. CV00-2808 (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. Hams, 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 eve…