-Caveat Lector- This is the case I mentioned a couple of days ago. It is a precedent and was settled in Federal District Court. Concerns lower courts changing the rules and laws AFTER an election as has been done in Florida. AKE ----- Original Message ----- From: "Howard Rothenburg" <[EMAIL PROTECTED]> Newsgroups: alt.rush-limbaugh,alt.politics,talk.politics.misc,alt.politics.usa.republica n,alt.fan.rush-limbaugh,alt.fan.rush-lim Sent: Thursday, November 30, 2000 11:16 PM Subject: [piml] BREAKING -- READ ATTORNEY GENERAL BILL PRYOR's SUPREME COURT AMICUS BRIEF TO GET THE SCOOP!!! > http://www.freerepublic.com/forum/a3a2484aa227a.htm > > Disclaimer: Opinions posted on Free Republic are those of the individual > posters and do not necessarily represent the opinion of Free Republic or its > management. All materials posted herein are protected by copyright law and > the exemption for fair use of copyrighted works. BREAKING -- READ ATTORNEY > GENERAL BILL PRYOR's SUPREME COURT AMICUS BRIEF TO GET THE SCOOP!!! > > Politics/Elections Breaking News Announcement Keywords: SUPREME COURT; BILL > PRYOR; BUSH > Source: Alabama Attorney General Bill Pryor > Published: 11-28-00 Author: cww > Posted on 11/28/2000 20:23:06 PST by CWW > November 28, 2000 > > Pryor, Bennett File Friend of Court Brief in U.S. Supreme Court in > Presidential Election Dispute > > (MONTGOMERY)-Attorney General Bill Pryor and Secretary of State Jim Bennett > today filed a friend-of-the-court brief asking the U.S. Supreme Court to > reverse the Florida Supreme Court's ruling last week in the presidential > election dispute. Pryor said that Alabama has a profound interest in > preserving constitutional guidelines that require elections to be conducted > with "fundamental fairness," that election procedures may not be changed > after an election, and that the Florida court usurped the powers properly > reserved to the executive and legislative branches of government. Because of > the magnitude of wrongs that have occurred at the state court level, it is > not only right, but also essential that the federal courts step in to > protect this federal right to fundamental fairness in elections, he added. > > The case currently before the U.S. Supreme Court, George W. Bush v. Palm > Beach County Canvassing Board, poses questions of whether the Florida > Supreme Court acted improperly in changing deadlines that had been set by > the Legislature for votes to be certified and ordering the state Secretary > of State to accept the late counts from certain counties. The litigation > specifically involves the counting of ballots cast on November 7 in the > Florida presidential election. > > The State of Alabama's particular interest in the Bush v. Palm Beach case > stems from its striking similarity to an Alabama case decided by the U.S. > Court of Appeals for the 11th Circuit five years ago, Roe v. Alabama, > involving the counting of unwitnessed absentee ballots in the 1994 election > for Chief Justice of the Supreme Court of Alabama. The 11th Circuit > determined that such unwitnessed ballots had not been counted in the past, > and declared that changing the procedure for counting such ballots after the > election had been held was a violation of the U.S. Constitution's > requirement that election procedures be fundamentally fair. The State of > Alabama subsequently reformed its election laws to ensure adherence to this > constitutional mandate, and the Secretary of State and Attorney General have > relied on the Roe decision in enforcing election laws, advising state > officials, and ensuring that election procedures in Alabama are and remain > fundamentally fair. > > While the federal courts ordinarily do not involve themselves in "garden > variety election disputes," the 11th Circuit stated in Roe, if the election > process becomes fundamentally unfair, the resulting violation of due process > demands federal relief. "Like the case now before this Court, however, Roe > was no "garden variety" election dispute," Pryor states in his brief to the > U.S. Supreme Court. "Like this case, the post-election change in election > procedures by the state courts raised serious questions about the > fundamental fairness of the election process." > > The practice before the November 1994 election in Alabama was to disregard > absentee ballots that had not been properly notarized or witnessed. > Following an election so close that the outcome could be determined by > unwitnessed absentee ballots, were they counted, the Montgomery County > Circuit Court changed the normal election procedure and ordered them > counted. The U.S. District Court for the Southern District of Alabama > granted a preliminary injunction to stop the count, ruling it > unconstitutional to depart from Alabama's longstanding policy of not > counting unwitnessed ballots. > > In upholding the District Court, the 11th Circuit stated that counting > ballots that had not been previously counted would dilute the votes of those > who had cast legal ballots and would be a "change in the rules after the > election" that disenfranchised those who would have voted but for the old > rules. Furthermore, the 11th Circuit specifically rejected the option of > requiring the matter to be pursued in state court, calling it "highly > doubtful" that the state courts had jurisdiction to grant relief. > > Although the State ultimately prevailed in its effort to preserve the > fundamental fairness of its election procedures, Pryor notes in today's > brief to the Supreme Court, "as a result of the circuit court's attempt to > change the rules for counting ballots after the election, the people of > Alabama were deprived of their choice for Chief Justice for more than nine > months--one eighth of his total term in office." The case was handled > personally by Pryor, then a deputy attorney general. > > The Alabama Attorney General added, "The process now unfolding in Florida as > a result of the change in state law by the Supreme Court of Florida portends > different, but perhaps more frightening ills. The process now underway in > Florida is undermining public confidence in the presidency and the Republic > itself as voters across the country watch canvassing boards stare at tiny > pieces of cardboard to divine whether a voter's 'dimpled chad' means the > voter wanted to vote for a candidate or decided not to vote at the last > minute. If post-election changes to election procedures in Florida are > approved by this Court, other states will be flooded with similar > post-election litigation. Any disgruntled candidate who loses by a narrow > margin will have an incentive to file a protest, argue for a new set of > rules, and then keep counting until the votes are 'found.'" > > Reminding the Court of longstanding federal precedents, Pryor cited Brown v. > O'Brien, a 1972 case in which the District of Columbia Circuit stated "there > can be no dispute that the very integrity of the (election) process rests on > the assumption that clear rules will be established and that, once > established, they will be enforced fairly, consistently, and without > discrimination as long as they remain in force" and Duncan v. Poythress, a > 1981 ruling by the former Fifth Circuit that said the Court "could imagine > no claim more deserving of constitutional protection than the allegation > that state officials have purposely abrogated the right to vote, a vote that > is fundamental to our society and preservative of all individual rights." > > Pryor told the U.S. Supreme Court that "these cases underscore that the > right to vote, at bottom, is a federal right. . . if a state election > procedure is so flawed as to be fundamentally unfair, that process violates > due process. Where, as in Roe and in this case, a state supreme court > materially changes state election procedure after an election has occurred > and while votes are still being counted, that change is fundamentally unfair > and violates the due process rights of the voters and the candidates." > > In the Florida case, the state Supreme Court fundamentally altered the > election procedures by dramatically increasing the time period in which > election protests by candidates can be considered and by extending deadlines > the Legislature had set for certification of the vote. Pryor argues that > this unfairly penalized citizens and other candidates, who expected that > under the previous rules they would have adequate opportunity to pursue a > post-certification election contest. He states that it is unfair to citizens > that their votes will be counted by different standards. He also argues that > it is unfair for election officials to second-guess voters and attribute > political speech that was not intended by voters, who may have meant to send > a message of 'none of the above' by not voting. > > Another similarity between the Alabama and Florida cases, according to > Pryor, is "the special need for deferring to the exclusive, constitutional > authority of legislative bodies to establish rules for voting before an > election rather than allowing courts to create rules for voting to apply > retroactively in post-election disputes." Particularly regarding the > appointment of presidential electors, he told the Court, "the Constitution > does not refer this matter to the entire State government but to the State > Legislature alone," and that Congress directed if electors are not appointed > as prescribed, they will be appointed "in such a manner as the legislature > of such state may direct." > > The Alabama Attorney General concluded his argument to the U.S. Supreme > Court with a reminder from federalist and founding father James Madison that > "Without the intervention of the State legislatures, the President of the > United States cannot be elected at all. They must in all cases have a great > share in his appointment, and will perhaps, in most cases, of themselves > determine it." Therefore, Pryor said, "as in Roe, the judicial usurpation of > this state legislative authority by the Supreme Court of Florida violated > the Constitution, and its fundamental unfairness must be redressed by the > federal judiciary." > > GET THE FULL BRIEF AT www.ago.state.al.us > ===================================================== > ******* DISCLAIMER U.C.C.1-207 & COPYRIGHT NOTICE****** > In accordance with Title 17 U. S. C. Section 107, any copyrighted work in > this message is distributed under fair use without profit or payment to > those > who have expressed a prior interest in receiving the included information > for > nonprofit research and educational purposes only. * Disclaimer Notice: * The > Sender is Not Responsible For Content or Views of Authors. [Reference URL: > http://www.law.cornell.edu/uscode/17/107.shtml ] (C) Michael G. 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