Ned L. Siegel v. Theresa Lepore ( 2000 )


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  •                                                                       [PUBLISH]
    
                  IN THE UNITED STATES COURT OF APPEALS
                         FOR THE ELEVENTH CIRCUIT
                          ________________________
    
                                   No. 00-15981
                             ________________________
    
                               D. C. Docket No. 00-9009
    
    
    NED L. SIEGEL,
    GEORGETTE SOSA DOUGLAS, et al.,
    
                                                                 Plaintiffs-Appellants,
    
                                         versus
    
    THERESA LEPORE,
    CHARLES E. BURTON, et al.,
    
                                                                Defendants-Appellees.
    
                             ________________________
    
                      Appeal from the United States District Court
                          for the Southern District of Florida
                            _________________________
                                  (December 6, 2000)
    
    Before ANDERSON, Chief Judge, TJOFLAT, EDMONDSON, COX, BIRCH,
    DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS and WILSON,
    Circuit Judges.
    
    PER CURIAM:
    
         This is an appeal from the denial of a preliminary injunction.
          The Republican candidates for the offices of President and Vice President of
    
    the United States, along with several registered Florida voters, filed suit in federal
    
    court in Miami, seeking to enjoin four Florida counties from conducting manual
    
    recounts of ballots cast for President of the United States in the November 7, 2000,
    
    election. The district court denied Plaintiffs’ request for preliminary injunctive
    
    relief, and Plaintiffs appeal. For the reasons stated below, we affirm.
    
                                              I.
    
          On November 7, 2000, Florida voters cast ballots for several offices,
    
    including votes for the twenty-five electors for President and Vice-President of the
    
    United States. The following day, the Division of Elections for the State of Florida
    
    reported that the Republican Party presidential ticket received 2,909,135 votes, and
    
    the Democratic Party presidential ticket received 2,907,351 votes, for a margin of
    
    difference of 1,784, or 0.0299% of the total Florida vote.
    
          Under Florida law, county canvassing boards are responsible for
    
    determining the number of votes cast for each candidate. See Fla. Stat. § 102.141.
    
    If a candidate for office is defeated by one-half of one percent or less of the votes
    
    cast for such office, the canvassing board must order a recount. See id. §
    
    102.141(4). Pursuant to this statute, because the Presidential vote returns reflected
    
    that the Democratic ticket was defeated by less than one-half of one percent, the
    
    
                                               2
    canvassing boards conducted automatic recounts of the votes. After the automatic
    
    recounts, the Republican ticket retained the majority of votes, although by a
    
    slimmer margin.
    
          Under Florida law, a manual recount may be requested by any candidate
    
    whose name appeared on the ballot, a political committee that supports or opposes
    
    an issue that appeared on the ballot, or a political party whose candidates’ names
    
    appeared on the ballot. See Fla. Stat. § 102.166(4)(a). Such a request must be
    
    filed with the canvassing board within 72 hours after midnight of the date the
    
    election was held, or before the canvassing board has certified the challenged
    
    results, whichever is later. See id. § 102.166(4)(b). The canvassing board may,
    
    but is not required to, grant the request. See id. § 102.166(4)(c); Broward County
    
    Canvassing Bd. v. Hogan, 
    607 So. 2d 508
    , 510 (Fla. Dist. Ct. App. 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.”).
    
    The statutory manual recount provision applies to all Florida counties. Therefore,
    
    the procedure for requesting a manual recount is the same in all counties, although
    
    the decision of whether to conduct a manual recount would, of course, be made
    
    separately by each county’s canvassing board.
    
    
    
    
                                              3
          Once authorized by a county canvassing board, a manual recount must
    
    include “at least three precincts and at least 1 percent of the total votes cast for
    
    such candidate.” Id. § 102.166(4)(d). The person requesting the recount chooses
    
    three precincts to be recounted, and, if other precincts are recounted, the
    
    canvassing board chooses the additional precincts. See id. If the results of the
    
    manual recount indicate “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.” Id. § 102.166(5).
    
          Florida law specifies the procedures for a manual recount. Section
    
    102.166(7) of the Florida Statutes provides that:
    
          (a)    The county canvassing board shall appoint as many counting
                 teams of at least two electors as is necessary to manually
                 recount the ballots. A counting team must have, when possible,
                 members of at least two political parties. A candidate involved
                 in the race shall not be a member of the counting team.
    
          (b)    If a counting team is unable to determine a voter's intent in
                 casting a ballot, the ballot shall be presented to the county
                 canvassing board for it to determine the voter's intent.
    
          In this case, the Florida Democratic Party filed requests for manual recounts
    
    in Broward, Miami-Dade, Palm Beach, and Volusia Counties on November 9,
    
    
                                                4
    2000, within the 72-hour statutory deadline. The stated reasons for the requests
    
    included the closeness of the statewide race and a concern that the vote totals might
    
    not reflect the true will of Florida voters. The apparent practical effect of a manual
    
    recount is that some ballots which were unreadable by machine due, for example,
    
    to voters’ failure to mark or punch the ballots in a machine-legible fashion, might
    
    be read by human counters; and these votes could be added to the totals for each
    
    candidate.
    
                                              II.
    
          On November 11, 2000, registered voters Ned L. Siegel from Palm Beach
    
    County, Georgette Sosa Douglas from Broward County, Gonzalo Dorta from
    
    Miami-Dade County, Carretta King Butler from Volusia County, Dalton Bray from
    
    Clay County, James S. Higgins from Martin County, and Roger D. Coverly from
    
    Seminole County, along with the Republican candidates for President and Vice-
    
    President, George W. Bush and Richard Cheney (collectively “Plaintiffs”), filed a
    
    Complaint and a Motion for a Temporary Restraining Order and Preliminary
    
    Injunction in the district court for the Southern District of Florida. Plaintiffs sued
    
    members of the county canvassing boards of Volusia, Palm Beach, Broward, and
    
    
    
    
                                               5
    Miami-Dade Counties.1 Plaintiffs’ Complaint alleged that the manual recounts
    
    violate the Fourteenth Amendment’s guarantees of due process and equal
    
    protection, and deny and burden the First Amendment’s protection of votes and
    
    political speech.
    
           Plaintiffs’ prayer for relief in their Complaint included the following:
    
                (a) Declaring that Defendants may not subject any vote totals to
           manual recounts;
    
                (b) In the alternative, declaring that Florida Statute § 102.166(4) is
           unconstitutional to the extent it does not limit the discretion of Defendants to
           conduct manual recounts in this case;
    
                  (c) Declaring that Defendants should certify and release forthwith all
           vote totals that have been the subject of two vote counts since November 7,
           2000;
    
                    (d) Declaring that the form of ballot used in Palm Beach County was
           valid;
    
                 (e) Declaring that any ballot punched or marked for two Presidential
           candidates not previously counted cannot now be counted;
    
                  (f) Consolidating or removing to this Court any and all actions filed
           across the State of Florida purporting to challenge the results of the
           November 7 statewide election or otherwise delay the certification and
           release of those results; and
    
    
    
           1
                    There are no state defendants in this case. In addition to the parties mentioned
    above, the district court granted a motion by the Florida Democratic Party to intervene, and the
    Florida Democratic Party is an intervenor-appellee in this case on appeal. The Attorney General
    also appeared as an amicus at oral argument to defend the constitutionality of the statute.
    
                                                   6
                 (g) Granting such other and further relief as this Court shall deem just
           and proper.
    
    (Complaint at 16-17.)
    
           The Motion for a Temporary Restraining Order and Preliminary Injunction
    
    which Plaintiffs filed with their Complaint asked, inter alia, that the district court
    
    prohibit the county canvassing boards from proceeding with manual recounts of
    
    the November 7th election results. Like the Complaint, this motion contended that
    
    the manual recounts violate the First Amendment and the Due Process and Equal
    
    Protection Clauses of the Fourteenth Amendment.
    
           The district court heard oral argument on the motion on November 13, 2000,
    
    and Plaintiffs’ request for a preliminary injunction was denied. On November 14,
    
    2000, Plaintiffs filed a notice of appeal.2
    
           During the pendency of this appeal, several Florida cases were appealed to
    
    the Florida Supreme Court. In these cases, some plaintiffs challenged Florida
    
    Secretary of State Katherine Harris’s decision to refuse to accept the results of
    
    manual recounts submitted by county canvassing boards after the statutory
    
    deadline of 5:00 p.m. on November 14, 2000. On November 21, 2000, in the
    
    
           2
                    The documents in this case were lodged in this Court as they were filed in the
    district court. Pursuant to Federal Rule of Appellate Procedure 35, this Court ordered that this
    case be heard initially en banc. 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).
    
                                                    7
    consolidated cases of Palm Beach County Canvassing Bd. v. Harris, Volusia
    
    County Canvassing Bd. v. Harris, and Florida Democratic Party v. Harris, the
    
    Supreme Court of Florida decided that Florida Secretary of State Harris must
    
    accept the late-reported results of manual recounts from these counties submitted
    
    by the evening of November 26, 2000. The Florida Supreme Court expressly
    
    stated that neither party had raised as an issue on appeal the constitutionality of
    
    Florida’s election laws, and it did not address federal constitutional issues in its
    
    opinion.3
    
           On appeal, Plaintiffs filed an Emergency Motion for an Injunction Pending
    
    Appeal, asking this Court to prohibit the county canvassing board Defendants from
    
    proceeding with manual ballot recounts. This motion was denied without prejudice
    
    on November 17, 2000. Among other things, we then said:
    
                  Both the Constitution of the United States and 3 U.S.C. §
                  5 indicate that states have the primary authority to
                  determine the manner of appointing Presidential Electors
                  and to resolve most controversies concerning the
                  appointment of Electors. The case law is to the same
                  effect, although, of course, federal courts may act to
                  preserve and decide claims of violations of the
                  Constitution of the United States in certain
                  circumstances, especially where a state remedy is
                  inadequate. In this case, the State of Florida has enacted
    
    
           3
                  The United States Supreme Court recently vacated the Florida Supreme Court’s
    opinion. See Bush v. Palm Beach Canv. Bd., No. 00-836 (U.S. Dec. 4, 2000).
    
                                                 8
                   detailed election dispute procedures. These procedures
                   have been invoked, and are in the process of being
                   implemented, both in the form of administrative actions
                   by state officials and in the form of actions in state
                   courts, including the Supreme Court of Florida. It has
                   been represented to us that the state courts will address
                   and resolve any necessary federal constitutional issues
                   presented to them, including the issues raised by
                   Plaintiffs in this case. If so, then state procedures are not
                   in any way inadequate to preserve for ultimate review in
                   the United States Supreme Court any federal questions
                   arising out of such orders.
    
    Order Denying Plaintiffs’ Emergency Motion for Injunction Pending Appeal,
    
    Touchston v. McDermott, No. 00-15985 (Nov. 17, 2000) (citations omitted).
    
           Plaintiffs moved this Court to expedite the underlying appeal, which motion
    
    we granted. This case is now before us on the appeal of the district court’s denial
    
    of Plaintiffs’ motion for a preliminary injunction. Plaintiffs ask this Court either to
    
    reverse the district court’s decision, enjoin the canvassing board Defendants from
    
    conducting manual recounts or certifying election results that include manual
    
    recounts, or order the deletion and/or non-inclusion of final vote tabulations that
    
    reflect the results of manual recounts.4
    
    
           4
                     Plaintiffs’ request on appeal is thus broader than their request for an injunction
    pending appeal, which asked only that we halt manual recounts then underway. To the extent
    that Plaintiffs’ request on appeal represents a petition for permanent relief, we must decline to
    convert this appeal of a denial of a preliminary injunction into a final hearing on the merits of
    Plaintiffs’ claims. Our review of such a case is normally limited to whether the district court
    abused its discretion; however, we recognize that an appellate court under some circumstances
    may decide the merits of a case in connection with its review of a denial of a preliminary
    
                                                      9
           This Court has carefully considered Plaintiffs’ appeal, as well as the other
    
    documents filed, and has conferred en banc on numerous occasions. We heard oral
    
    
    
    
    injunction. See Thornburgh v. American College of Obstetricians & Gynecologists, 
    476 U.S. 747
    , 755-56, 
    106 S. Ct. 2169
    , 2176 (1986).
    
             In Thornburgh, the Supreme Court said that “if a district court’s ruling rests solely on a
    premise as to the applicable rule of law, and the facts are established or of no controlling
    relevance, that ruling may be reviewed even though the appeal is from the entry of a preliminary
    injunction.” Id. at 757, 106 S. Ct. at 2177. The Supreme Court affirmed the appellate court’s
    decision to review the merits, rather than merely determine whether the district court had abused
    its discretion by entering a preliminary injunction, where it had the benefit of “‘an unusually
    complete factual and legal presentation from which to address the important constitutional issues
    at stake.’” Id. (quoting Thornburgh v. American College of Obstetricians & Gynecologists, 
    737 F.2d 283
    , 290 (3d Cir. 1984)). Additionally, the Supreme Court observed that appellate review
    was aided by three recent decisions from the same circuit on the constitutional issues. See id. at
    753-54, 757, 106 S. Ct. at 2174-75, 2177. Thus, it stated that “when the unconstitutionality of
    the particular state action under challenge is clear,” an appellate court need not abstain from
    addressing the merits. Id. at 756, 106 S. Ct. at 2176. In so holding, however, the Supreme Court
    noted that “[a] different situation is presented, of course, when there is no disagreement as to the
    law, but the probability of success on the merits depends on facts that are likely to emerge at
    trial.” Id. at 757 n.8, 106 S. Ct. at 2177 n.8 (citations omitted).
    
            This case clearly falls within this latter category, and thus represents the very situation in
    which the Supreme Court held that appellate review was not appropriate. The answer to the
    constitutional questions is anything but clear. And, in stark contrast to Thornburgh, we have
    before us a factual record that is largely incomplete and vigorously disputed. The district court
    based its ruling on Plaintiffs’ motion for a preliminary injunction solely on limited affidavits and
    the submission of few documents, including news media reports. Moreover, there was no
    discovery in this case, much less a trial or a plenary hearing, and none of the scant evidence
    presented to the district court was tested by the adversarial process of cross-examination. The
    controlling relevant facts are fervently contested by the parties. These evidentiary infirmities are
    especially problematic given that Plaintiffs’ major claims are as-applied challenges to the Florida
    statutes, arguments the validity of which depends upon the development of a complete
    evidentiary record. Mere expediency does not warrant this Court reaching the merits of
    Plaintiffs’ claims in the absence of the necessary evidence by which to do so. Therefore,
    applying the reasoning of Thornburgh, the circumstances of this case as it currently stands
    require us to deny their request.
    
                                                     10
    argument on December 5, 2000. Recognizing the importance of a resolution to this
    
    case, a prompt decision on the appeal is required.
    
                                              III.
    
          We first consider whether Rooker-Feldman bars our exercise of subject
    
    matter jurisdiction over Plaintiffs’ claims.
    
          The Rooker-Feldman doctrine provides that federal courts, other than the
    
    United States Supreme Court, have no authority to review the final judgments of
    
    state courts. See District of Columbia Court of Appeals v. Feldman, 
    460 U.S. 462
    ,
    
    486, 
    103 S. Ct. 1303
    , 1317 (1983); Rooker v. Fidelity Trust Co., 
    263 U.S. 413
    ,
    
    415-16, 
    44 S. Ct. 149
    , 150 (1923). The doctrine extends not only to constitutional
    
    claims presented or adjudicated by a state court, but also to claims that are
    
    “inextricably intertwined” with a state court judgment. Feldman, 460 U.S. at 482
    
    n.16, 103 S. Ct. at 1315 n.16; Dale v. Moore, 
    121 F.3d 624
    , 626 (11th Cir. 1997).
    
    A federal claim is inextricably intertwined with a state court judgment “if the
    
    federal claim succeeds only to the extent that the state court wrongly decided the
    
    issues before it.” Pennzoil Co. v. Texaco, Inc., 
    481 U.S. 1
    , 25, 
    107 S. Ct. 1519
    ,
    
    1533 (1987) (Marshall, J., concurring).
    
           In light of the United States Supreme Court’s decision vacating the Florida
    
    Supreme Court’s November 21, 2000, decision, it is unclear at the moment that any
    
    
                                               11
    final judgments giving rise to Rooker-Feldman concerns now exist. See Bush v.
    
    Palm Beach County Canv. Bd., No. 00-836 (U.S. Dec. 4, 2000). No party has
    
    called to our attention any final judgments in the Florida state courts upon which a
    
    Rooker-Feldman bar reasonably could be based as to these Plaintiffs.5 Thus, we
    
    conclude that Rooker-Feldman does not bar Plaintiffs from bringing these
    
    particular constitutional challenges to the implementation of Florida’s manual
    
    recount provision.
    
           Defendants Broward, Palm Beach, and Volusia County Canvassing Boards
    
    also argue that this case is moot because the manual recounts have been completed
    
    and the boards have filed their certified vote tabulations with the Elections
    
    Canvassing Commission. However, we conclude that this case is not moot.
    
           5
                     For similar reasons, we conclude that neither res judicata nor collateral estoppel
    bars our consideration of the issue of the constitutionality of Florida’s statutory manual recount
    provision. We look to Florida law to determine the application of these preclusive doctrines.
    See Migra v. Warren City Sch. Dist. Bd. of Educ., 
    465 U.S. 75
    , 81, 
    104 S. Ct. 892
    , 896 (1984)
    (holding that under the Full Faith and Credit Act, a federal court must give the same preclusive
    effect to a state court judgment as another court of that state would give). Florida adheres to the
    traditional requirement of mutuality of parties in its application of res judicata. See Albrecht v.
    State of Florida, 
    444 So. 2d 8
    , 11 (Fla. 1984); State Street Bank & Trust Co. v. Badra, 
    765 So. 2d 251
    , 253 (Fla. Dist. Ct. App. 2000) (citing Youngblood v. Taylor, 
    89 So. 2d 503
    , 505 (Fla.
    1956)). The parties to this case are not the same parties that appeared before the Florida
    Supreme Court. Florida similarly requires mutuality of parties in the application of collateral
    estoppel. See Stogniew v. McQueen, 
    656 So. 2d 917
    , 919-20 (Fla. 1995). Further, the doctrine
    of collateral estoppel bars identical parties from relitigating only those issues that have
    previously been decided between them. See Mobil Oil Corp. v. Shevin, 
    354 So. 2d 372
    , 374 (Fla.
    1977). Where, as here, the issue in dispute has not been fully litigated, the doctrine is
    inapplicable. We therefore conclude that neither res judicata nor collateral estoppel bars our
    review of the constitutionality of Florida’s manual recount provision.
    
    
                                                    12
           Article III of the Constitution limits federal court jurisdiction to live cases or
    
    controversies, and the “case-or-controversy” requirement “subsists through all
    
    stages of federal judicial proceedings, trial and appellate.” Lewis v. Continental
    
    Bank Corp., 
    494 U.S. 472
    , 477, 
    110 S. Ct. 1249
    , 1253 (1990). This Court has held
    
    that “[a] claim for injunctive relief may become moot if: (1) it can be said with
    
    assurance that there is no reasonable expectation that the alleged violation will
    
    recur and (2) interim relief or events have completely and irrevocably eradicated
    
    the effects of the alleged violation.” Reich v. Occupational Safety & Health
    
    Review Comm’n, 
    102 F.3d 1200
    , 1201 (11th Cir. 1997).
    
           We conclude that neither of these elements is satisfied in this case. The
    
    Democratic candidate, Vice President Gore, and others are currently contesting the
    
    election results in various lawsuits in numerous Florida state courts. There are still
    
    manual recount votes from at least Volusia and Broward Counties in the November
    
    26th official election results of the Florida Secretary of State.6 In view of the
    
    complex and ever-shifting circumstances of the case, we cannot say with any
    
    confidence that no live controversy is before us.7
    
    
           6
                   There may also be some manual recount votes in those results from a number of
    other Florida counties, such as Seminole, Gadsden, and Polk.
           7
                   Read broadly, Plaintiffs’ request for injunctive relief can be interpreted as a
    request that Defendants be ordered to certify only those vote totals that resulted from machine
    recounts. Because Florida Secretary of State Harris has certified the election results and because
    
                                                   13
                                                   IV.
    
           Defendants argue that we should abstain from hearing this case under
    
    Burford v. Sun Oil Co., 
    319 U.S. 315
    , 
    63 S. Ct. 1098
     (1943), or under Railroad
    
    Comm’n of Tex. v. Pullman Co., 
    312 U.S. 496
    , 
    61 S. Ct. 643
     (1941). We conclude
    
    that abstention is not appropriate in this case.
    
           The Burford abstention doctrine allows a federal court to dismiss a case only
    
    if it presents difficult questions of state law bearing on policy problems of
    
    substantial public import whose importance transcends the result in the case then at
    
    bar, or if its adjudication in a federal forum would disrupt state efforts to establish
    
    a coherent policy with respect to a matter of substantial public concern. See Boyes
    
    v. Shell Oil Prods. Co., 
    199 F.3d 1260
    , 1265 (11th Cir. 2000) (citing New Orleans
    
    Pub. Serv., Inc. v. Council of the City of New Orleans, 
    491 U.S. 350
    , 361, 109 S.
    
    Ct. 2506, 2514 (1989)). A central purpose furthered by Burford abstention is to
    
    protect complex state administrative processes from undue federal interference.
    
    See New Orleans Pub. Serv., 491 U.S. at 362, 109 S. Ct. at 2515. The case before
    
    us does not threaten to undermine all or a substantial part of Florida’s process of
    
    
    
    she is not yet a party to this appeal, we note that there is some question whether this Court could
    order the requested relief once the Defendant canvassing boards have completed their manual
    recounts and have certified their vote totals to the state Elections Canvassing Commission.
    However, because we deny Plaintiffs’ motion for a preliminary injunction, we need not address
    this issue.
    
                                                    14
    conducting elections and resolving election disputes. Rather, Plaintiffs’ claims in
    
    this case target certain discrete practices set forth in a particular state statute.
    
    Further, Burford is implicated when federal interference would disrupt a state’s
    
    effort, through its administrative agencies, to achieve uniformity and consistency in
    
    addressing a problem. See, e.g., Quackenbush v. Allstate Ins. Co., 
    517 U.S. 706
    ,
    
    727-28, 
    116 S. Ct. 1712
    , 1727 (1996). This case does not threaten to undermine
    
    Florida’s uniform approach to manual recounts; indeed, the crux of Plaintiffs’
    
    complaint is the absence of strict and uniform standards for initiating or conducting
    
    such recounts. Finally, we note that Burford abstention represents an
    
    “extraordinary and narrow exception to the duty of a District Court to adjudicate a
    
    controversy properly before it.” County of Allegheny v. Frank Mashuda Co., 
    360 U.S. 185
    , 188, 
    79 S. Ct. 1060
    , 1063 (1959). We do not believe that the concerns
    
    raised by Defendants in this case justify our abstention under this narrow doctrine.
    
           Perhaps the most persuasive justification for abstention advanced by
    
    Defendants is based on Pullman, 
    312 U.S. 496
    , 
    61 S. Ct. 643
    ; however, we
    
    conclude that abstention under this doctrine would not be appropriate. Under the
    
    Pullman abstention doctrine, a federal court will defer to “state court resolution of
    
    underlying issues of state law.” Harman v. Forssenius, 
    380 U.S. 528
    , 534, 85 S.
    
    Ct. 1177, 1181 (1965). Two elements must be met for Pullman abstention to
    
    
                                                15
    apply: (1) the case must present an unsettled question of state law, and (2) the
    
    question of state law must be dispositive of the case or would materially alter the
    
    constitutional question presented. See id. at 534, 85 S. Ct. at 1182. The purpose of
    
    Pullman abstention is to “avoid unnecessary friction in federal-state functions,
    
    interference with important state functions, tentative decisions on questions of state
    
    law, and premature constitutional adjudication.” Id. Because abstention is
    
    discretionary, it is only appropriate when the question of state law can be fairly
    
    interpreted to avoid adjudication of the constitutional question. See id. at 535, 85
    
    S. Ct. at 1182.
    
          Plaintiffs claim that Florida’s manual recount provision is unconstitutional
    
    because the statute does not provide sufficient standards to guide the discretion of
    
    county canvassing boards in granting a request for a manual recount or in
    
    conducting such a recount. There has been no suggestion by Defendants that the
    
    statute is appropriately subject to a more limited construction than the statute itself
    
    indicates.
    
          Our conclusion that abstention is inappropriate is strengthened by the fact
    
    that Plaintiffs allege a constitutional violation of their voting rights. In considering
    
    abstention, we must take into account the nature of the controversy and the
    
    importance of the right allegedly impaired. See Edwards v. Sammons, 
    437 F.2d 16
    1240, 1243 (5th Cir. 1971) (citing, as examples of cases where the Supreme Court
    
    referred to the nature of the right involved in upholding a refusal to abstain,
    
    Harman, 380 U.S. at 537, 85 S. Ct. at 1183 (voting rights); Griffin v. County Sch.
    
    Bd. of Prince Edward County, 
    377 U.S. 218
    , 
    84 S. Ct. 1226
     (1964) (school
    
    desegregation); Baggett v. Bullitt, 
    377 U.S. 360
    , 
    84 S. Ct. 1316
     (1964) (First
    
    Amendment rights)). Our cases have held that voting rights cases are particularly
    
    inappropriate for abstention. See Duncan v. Poythress, 
    657 F.2d 691
    , 697 (5th Cir.
    
    Unit B 1981) (stating that while an alleged denial of voting rights does not
    
    preclude federal abstention, Supreme Court precedent indicates that a federal court
    
    should be reluctant to abstain when voting rights are at stake); Edwards, 437 F.2d
    
    at 1244 (stating the general rule that abstention is not appropriate “in cases
    
    involving such a strong national interest as the right to vote”). In light of this
    
    precedent, the importance of the rights asserted by Plaintiffs counsels against our
    
    abstention in this case; although, as discussed below, we are mindful of the limited
    
    role of the federal courts in assessing a state’s electoral process.
    
          We therefore conclude that abstention is not appropriate.
    
                                              V.
    
          This is an appeal from the denial of a preliminary injunction. Plaintiffs state
    
    two main claims. First, Plaintiffs argue that Florida’s manual recount scheme, and
    
    
                                               17
    particularly Fla. Stat. § 102.166(7), is unconstitutional because it contains no
    
    standards for when a ballot not read by the machine may be counted. They
    
    describe their claim as an “as-applied” challenge based on the allegedly
    
    standardless and partisan application of the (allegedly facially standardless) statute
    
    in Palm Beach, Broward, Dade, and Volusia Counties. Plaintiffs’ chief objection
    
    is that different criteria used by different counties, or by different election officials
    
    within a county, may mean that the same ballot rejected in one instance is accepted
    
    in another instance, or vice versa. They contend that such unequal treatment
    
    violates the Equal Protection Clause and that the lack of standards by itself violates
    
    the Due Process Clause. Plaintiffs also contend that the absence of statutory
    
    standards for when a manual recount occurs permits arbitrary and partisan
    
    decision-making, exacerbates the potential for unequal treatment of ballots, and
    
    thus warrants a federal court’s intervention.
    
          Second, Plaintiffs assert that they are denied due process and equal
    
    protection because, under Fla. Stat. § 102.166(4), ballots in one county may be
    
    manually recounted while ballots in another county are not. They contend that, as
    
    a result, similarly situated voters will not be treated similarly based purely on the
    
    fortuity of where they reside; a ballot that would be counted in one county pursuant
    
    
    
    
                                               18
    to a manual recount may not be counted elsewhere because that voter’s county did
    
    not conduct such a recount.
    
           Defendants, as well as the Intervenor-Appellee, dispute all of these
    
    contentions. They argue that Florida law does contain constitutionally adequate
    
    standards for evaluating when a manual recount should occur and for evaluating
    
    the ballots during such a recount, and that Plaintiffs’ as-applied claim fails because
    
    no record evidence shows that those standards have been employed in an arbitrary
    
    or partisan fashion. They also maintain that allowing decisions to be made on
    
    whether a manual recount occurs on a county-by-county basis is reasonable and
    
    consistent with the approach taken by other states, and that in any event no
    
    constitutional violation is present for many reasons, such as there is no record
    
    evidence indicating that a recount request was made and accepted in one Florida
    
    county while a request made in a different county was rejected. More generally,
    
    they raise a series of arguments for the proposition that Plaintiffs’ challenge to
    
    Florida’s election laws does not rise to a level that would warrant federal
    
    intervention.
    
          The district court, weighing the parties’ arguments, determined that
    
    Plaintiffs had failed to show a substantial likelihood of success on the merits. We
    
    have reviewed the competing arguments. To some extent, our consideration of
    
    
                                              19
    these arguments is shaped by the practical difficulties of marshaling an adequate
    
    record when ongoing and unexpected events continually alter the key facts. In this
    
    case, only limited affidavits and a few documents were introduced into the record
    
    before the district court. No formal discovery has been undertaken, and, as yet, no
    
    evidentiary hearing has been held in this case. Many highly material allegations of
    
    facts are vigorously contested. Preliminary injunction motions are often, by
    
    necessity, litigated on an undeveloped record. But an undeveloped record not only
    
    makes it harder for a plaintiff to meet his burden of proof, it also cautions against
    
    an appellate court setting aside the district court’s exercise of its discretion.
    
           However, we need not decide the merits of the case to resolve this appeal,
    
    and therefore, do not decide them at this time. The district court rejected Plaintiffs’
    
    preliminary injunction motion not only because it found no likelihood of success
    
    on the merits, but also on the separate and independent ground that Plaintiffs had
    
    failed to show that irreparable injury would result if no injunction were issued. We
    
    may reverse the district court’s order only if there was a clear abuse of discretion.
    
    See, e.g., Carillon Importers, Ltd. v. Frank Pesce Int’l Group Ltd., 
    112 F.3d 1125
    ,
    
    1126 (11th Cir. 1997) (per curiam); Revette v. International Ass’n of Bridge,
    
    Structural & Ornamental Iron Workers, 
    740 F.2d 892
    , 893 (11th Cir. 1984) (“The
    
    district court’s decision will not be reversed unless there is a clear abuse of
    
    
                                               20
    discretion.”); Harris Corp. v. National Iranian Radio & Television, 
    691 F.2d 1344
    ,
    
    1354 (11th Cir. 1982). Because Plaintiffs still have not shown irreparable injury,
    
    let alone that the district court clearly abused its discretion in finding no irreparable
    
    injury on the record then before it, the denial of the preliminary injunction must be
    
    affirmed on that basis alone.
    
          A district court may grant injunctive relief only if the moving party shows
    
    that: (1) it has a substantial likelihood of success on the merits; (2) irreparable
    
    injury will be suffered unless the injunction issues; (3) the threatened injury to the
    
    movant outweighs whatever damage the proposed injunction may cause the
    
    opposing party; and (4) if issued, the injunction would not be adverse to the public
    
    interest. See McDonald’s Corp. v. Robertson, 
    147 F.3d 1301
    , 1306 (11th Cir.
    
    1998) (citing All Care Nursing Serv., Inc. v. Bethesda Mem’l Hosp., Inc., 
    887 F.2d 1535
    , 1537 (11th Cir. 1989)). In this Circuit, “[a] preliminary injunction is an
    
    extraordinary and drastic remedy not to be granted unless the movant clearly
    
    established the ‘burden of persuasion’” as to each of the four prerequisites. Id.
    
    (internal citation omitted); see also Texas v. Seatrain Int’l, S.A., 
    518 F.2d 175
    , 179
    
    
    
    
                                               21
    (5th Cir. 1975) (grant of preliminary injunction “is the exception rather than the
    
    rule,” and plaintiff must clearly carry the burden of persuasion).8
    
           A showing of irreparable injury is “‘the sine qua non of injunctive relief.’”
    
    Northeastern Fla. Chapter of the Ass’n of Gen. Contractors v. City of Jacksonville,
    
    
    896 F.2d 1283
    , 1285 (11th Cir. 1990) (quoting Frejlach v. Butler, 
    573 F.2d 1026
    ,
    
    1027 (8th Cir. 1978)); see also Doran v. Salem Inn, Inc., 
    422 U.S. 922
    , 931, 95 S.
    
    Ct. 2561, 2568 (1975) (“The traditional standard for granting a preliminary
    
    injunction requires the plaintiff to show that in the absence of its issuance he will
    
    suffer irreparable injury.”); Robertson, 147 F.3d at 1306 (plaintiff must show
    
    “irreparable injury will be suffered”); Harris Corp., 691 F.2d at 1356-57
    
    (concluding that district court “did not abuse its discretion in finding a substantial
    
    likelihood of irreparable injury to [the plaintiff] absent an injunction”); Deerfield
    
    Med. Ctr. v. City of Deerfield Beach, 
    661 F.2d 328
    , 338 (5th Cir. 1981) (to be
    
    granted a preliminary injunction plaintiffs must show “a substantial likelihood that
    
    they would suffer irreparable injury”).9
    
           8
                   The Eleventh Circuit, in Bonner v. City of Prichard, 
    661 F.2d 1206
    , 1209 (11th
    Cir. 1981) (en banc), adopted as precedent decisions of the former Fifth Circuit rendered prior to
    October 1, 1981.
           9
                    We have occasionally spoken of requiring a substantial “threat” of irreparable
    harm. See Haitian Refugee Ctr., Inc. v. Baker, 
    949 F.2d 1109
    , 1110 (11th Cir. 1991) (per
    curiam). We do not read those opinions, however, as intending to relax the traditional standard -
    - stated by the Supreme Court -- that a plaintiff must show either that he will suffer, or faces a
    substantial likelihood that he will suffer, irreparable injury. See e.g., Doran, 422 U.S. at 931, 95
    
                                                     22
           Significantly, even if Plaintiffs establish a likelihood of success on the
    
    merits, the absence of a substantial likelihood of irreparable injury would, standing
    
    alone, make preliminary injunctive relief improper. See Snook v. Trust Co. of
    
    Georgia Bank of Savannah, N.A., 
    909 F.2d 480
    , 486 (11th Cir. 1990) (affirming
    
    denial of preliminary injunction even though plaintiff established likelihood of
    
    prevailing because plaintiff failed to meet burden of proving irreparable injury);
    
    City of Jacksonville, 896 F.2d at 1285 (reversing preliminary injunction based
    
    solely on plaintiff’s failure to show irreparable injury); Flowers Indus. v. FTC, 
    849 F.2d 551
    , 552 (11th Cir. 1988) (same); United States v. Lambert, 
    695 F.2d 536
    ,
    
    540 (11th Cir. 1983) (affirming denial of preliminary injunction and stating that a
    
    plaintiff’s “success in establishing a likelihood it will prevail on the merits does not
    
    obviate the necessity to show irreparable harm”). As we have emphasized on
    
    many occasions, the asserted irreparable injury “must be neither remote nor
    
    speculative, but actual and imminent.” City of Jacksonville, 896 F.2d at 1285
    
    (quoting Tucker Anthony Realty Corop. v. Schlesinger, 
    888 F.2d 969
    , 973 (2d Cir.
    
    1989)); accord, Chacon v. Granata, 
    515 F.2d 922
    , 925 (5th Cir. 1975) (“An
    
    
    
    
    S. Ct. at 2568. In any event, the outcome is the same even using substantial “threat” as the
    benchmark.
    
                                                    23
    injunction is appropriate only if the anticipated injury is imminent and
    
    irreparable.”).
    
           At this time, Plaintiffs cannot demonstrate a threat of continuing irreparable
    
    harm. At the moment, the candidate Plaintiffs (Governor Bush and Secretary
    
    Cheney) are suffering no serious harm, let alone irreparable harm, because they
    
    have been certified as the winners of Florida’s electoral votes notwithstanding the
    
    inclusion of manually recounted ballots. Moreover, even if manual recounts were
    
    to resume pursuant to a state court order,10 it is wholly speculative as to whether
    
    the results of those recounts may eventually place Vice President Gore ahead. See
    
    Church v. City of Huntsville, 
    30 F.3d 1332
    , 1337 (11th Cir. 1994) (“a party has
    
    standing to seek injunctive relief only if the party alleges, and ultimately proves, a
    
    real and immediate -- as opposed to a merely conjectural or hypothetical -- threat
    
    of future injury”). At the moment it also remains speculative whether such an
    
    order may be forthcoming. Indeed, the Florida Circuit Court in Leon County
    
    considering the Vice President’s contest to the final certification has now denied
    
    the Vice President’s request for resumption of manual recounts as part of its
    
    broader judgment in the entire contest action. This development reinforces that the
    
    
           10
                    This case involves discretionary recounts ordered by county canvassing boards.
    A recount ordered by a state court under state law in a contest proceeding might be a
    substantially different case, raising different legal issues.
    
                                                   24
    candidate Plaintiffs are suffering no serious harm. Moreover, as noted earlier, the
    
    United States Supreme Court has now vacated the Florida Supreme Court’s
    
    decision, raising still further doubt about the likelihood of any substantial injury.
    
          Nor are the voter Plaintiffs (all of whom allege that they voted for Governor
    
    Bush and Secretary Cheney) suffering serious harm or facing imminent injury. No
    
    voter Plaintiff claims that in this election he was prevented from registering to
    
    vote, prevented from voting or prevented from voting for the candidate of his
    
    choice. Nor does any voter claim that his vote was rejected or not counted. The
    
    cases called to our attention by the parties that have warranted immediate
    
    injunctive relief have involved these kind of circumstances. Even assuming
    
    Plaintiffs can assert some kind of injury, they have not shown the kind of serious
    
    and immediate injury that demands the extraordinary relief of a preliminary
    
    injunction. Additionally, any alleged voter injury, unrelated to the outcome of the
    
    election certified by the Florida Secretary of State, can be adequately remedied
    
    later. And although these Plaintiffs assert that Florida’s existing manual recount
    
    scheme must be invalidated for now and in the future, no one suggests that another
    
    election implicating those procedures is underway or imminent.
    
          Plaintiffs’ other allegations of irreparable injuries to justify a preliminary
    
    injunction are unconvincing. The candidate Plaintiffs contend that if the manual
    
    
                                              25
    recounts are allowed to proceed, simply rejecting the results of those recounts after
    
    the conclusion of this case will not repair the damage to the legitimacy of the Bush
    
    Presidency caused by “broadcasting” the flawed results of a recount that put Vice
    
    President Gore ahead. But the pertinent manual recounts have already been
    
    concluded, and the results from those recounts widely publicized. Moreover, we
    
    reject the contention that merely counting ballots gives rise to cognizable injury.
    
          Plaintiffs also contend that a violation of constitutional rights always
    
    constitutes irreparable harm. Our case law has not gone that far, however. See,
    
    e.g., City of Jacksonville, 896 F.2d at 1285 (“No authority from the Supreme Court
    
    or the Eleventh Circuit has been cited to us for the proposition that the irreparable
    
    injury needed for a preliminary injunction can properly be presumed from a
    
    substantially likely equal protection violation.”); Cunningham v. Adams, 
    808 F.2d 815
    , 821-22 (11th Cir. 1987) (affirming denial of preliminary injunction in action
    
    alleging Fourteenth Amendment violations, and finding no abuse of discretion in
    
    district court’s rejection of the plaintiff’s argument that “irreparable injury will be
    
    presumed where there has been a violation of substantive constitutional rights”);
    
    see also Hohe v. Casey, 868 F 2d 69, 73 (3d Cir. 1989) (“Constitutional harm is
    
    not necessarily synonymous with the irreparable harm necessary for issuance of a
    
    preliminary injunction.”). The only areas of constitutional jurisprudence where we
    
    
                                               26
    have said that an on-going violation may be presumed to cause irreparable injury
    
    involve the right of privacy and certain First Amendment claims establishing an
    
    imminent likelihood that pure speech will be chilled or prevented altogether. See
    
    City of Jacksonville, 896 F.2d at 1285 (citing Cate v. Oldham, 
    707 F.2d 1176
    ,
    
    1189 (11th Cir. 1983) and Deerfield Med. Ctr., 661 F.2d at 338); see also Hohe,
    
    868 F.2d at 72-73 (“[T]he assertion of First Amendment rights does not
    
    automatically require a finding of irreparable injury, thus entitling a plaintiff to a
    
    preliminary injunction if he shows a likelihood of success on the merits. Rather, . .
    
    . it is the ‘direct penalization, as opposed to incidental inhibition, of First
    
    Amendment rights [which] constitutes irreparable injury.’”) (quoting Cate, 707
    
    F.2d at 1188)). This is plainly not such a case. Cf. City of Mobile v. Bolden, 
    446 U.S. 55
    , 76, 
    100 S. Ct. 1490
    , 1505 (1980) (constitutional right to vote, and the
    
    principle of equality among voters, is conferred by the Equal Protection Clause of
    
    the Fourteenth Amendment) (citing Reynolds v. Sims, 
    377 U.S. 533
    , 
    84 S. Ct. 1362
     (1964)).
    
           Simply put, this principle is the law: we may reverse a district court’s
    
    denial of a preliminary injunction if and only if we find that the court clearly
    
    
    
    
                                                27
    abused its discretion.11 Our review, therefore, must be highly deferential. See,
    
    e.g., Carillon Importers, 112 F.3d at 1126 (“The review of a district court’s
    
    decision to grant or deny a preliminary injunction is extremely narrow in scope.”);
    
    Revette, 740 F.2d at 893 (“Appellate review of such a decision is very narrow.”).
    
    As we have explained:
    
           This limited review is necessitated because the grant or denial of a
           preliminary injunction is almost always based on an abbreviated set of
           facts, requiring a delicate balancing of the probabilities of ultimate
           success at final hearing with the consequences of immediate
           irreparable injury which could possibly flow from the denial of
           preliminary relief. Weighing these considerations is the responsibility
           of the district court.
    
    Id. (quoting Gray Line Motor Tours, Inc. v. City of New Orleans, 
    498 F.2d 293
    ,
    
    296 (5th Cir. 1974)) (internal quotation marks and additional citation omitted).
    
    The abuse-of-discretion standard, therefore, serves an important and vital purpose.
    
           In the case now before us, the district court expressly found that Plaintiffs
    
    did not meet their burden of showing that immediate irreparable harm would result
    
    if preliminary injunctive relief were not entered. It did so largely because the
    
    
    
           11
                    The district court did not peg its finding of no irreparable harm to any incorrect
    legal principle. On the contrary, the district court found that, on the record presented to it, no
    irreparable harm had been proved. See Siegel v. LePore, 
    2000 WL 1687185
     (S.D. Fla. Nov. 13,
    2000), at *8 (“In addition, we find Plaintiffs’ alleged injuries on an as-applied basis to be
    speculative, and far from irreparable, at this stage in the electoral recount process . . . . The
    inconclusive state of these recount processes coupled with their different factual postures
    counsels against preliminary uniform injunctive relief at this time.”).
    
                                                    28
    limited record before it did not support Plaintiffs’ claims of harm. That critical
    
    finding remains just as compelling, and the irreparability of the alleged injury is no
    
    more established, today.
    
           Accordingly, we cannot say that the district court abused its broad discretion
    
    in finding that Plaintiffs did not meet their burden of showing at least a substantial
    
    likelihood of irreparable injury. Because proof of irreparable injury is an
    
    indispensable prerequisite to a preliminary injunction, Plaintiffs are not entitled to
    
    a preliminary injunction at this time; and the district court’s order must be
    
    affirmed. See, e.g., Canal Authority v. Callaway, 
    489 F.2d 567
    , 574 (5th Cir.
    
    1974) (“[W]here no irreparable injury is alleged and proved, denial of a
    
    preliminary injunction is appropriate.”). The Court does not at this time decide the
    
    merits of Plaintiffs’ constitutional arguments.12
    
           AFFIRMED.
    
    
    
    
           12
                    A decision by the Court on the likelihood of success would require the Court to
    reach, in some sense, constitutional questions. Even for those of us who believe that the record
    will not support a substantial likelihood of success on the merits, it is a “fundamental and
    longstanding principle of judicial restraint . . . that courts avoid reaching constitutional questions
    in advance of the necessity of deciding them.” Lyng v. Northwest Indian Cemetary Protective
    Ass’n, 
    485 U.S. 439
    , 445, 
    108 S. Ct. 1319
    , 1323 (1988). Given our view on the issue of injury,
    no necessity is present here.
    
    
                                                      29
    ANDERSON, Chief Judge, concurring specially:
    
          I join in the opinion of the Court. I subscribe to the entire opinion including,
    
    inter alia, the holding and reasoning that Plaintiffs have failed to demonstrate
    
    irreparable injury. Although I agree that judicial restraint cautions against the
    
    court’s addressing constitutional issues unless necessary, it does not seem
    
    inappropriate for me in light of the extensive dissents, to discuss my own views
    
    about the likelihood of success on the merits of Plaintiffs’ constitutional issues.
    
    
    
                              I. LIKELIHOOD OF SUCCESS
    
            A. Standard of Review
    
          A party seeking a preliminary injunction must establish the following four
    
    elements: (1) a substantial likelihood of success on the merits; (2) a substantial
    
    threat of irreparable injury; (3) that its own injury outweighs the injury to the
    
    nonmovant; and (4) that the injunction would not disserve the public interest. See
    
    Haitian Refugee Center, Inc. v. Baker, 
    949 F.2d 1109
    , 1110 (11th Cir. 1991).
    
          I note at the outset that the scope of this review of the district court’s denial
    
    of injunctive relief is limited to whether the district court abused its discretion. See
    
    Sierra Club v. Georgia Power Co., 
    180 F.3d 1309
    , 1310 (11th Cir. 1999) (“The
    
    
    
    
                                              30
    grant or denial of a preliminary injunction is a decision within the sound discretion
    
    of the district court.”). The district court must exercise its discretion “in deciding
    
    upon and delicately balancing the equities of the parties involved.” United States
    
    v. Lambert, 
    695 F.2d 536
    , 539 (11th Cir. 1983) (quoting Tatum v. Blackstock, 
    319 F.2d 397
    , 401-02 (5th Cir. 1963)). In this review, I adopt the district court's
    
    findings of fact unless clearly erroneous, but I review de novo jurisdictional issues
    
    and issues of law. See SEC v. Unique Financial Concepts, Inc., 
    196 F.3d 1195
    ,
    
    1198 (11th Cir. 1999). “Because a preliminary injunction is ‘an extraordinary and
    
    drastic remedy,’ its grant is the exception rather than the rule, and plaintiff must
    
    clearly carry the burden of persuasion.” Lambert, 695 F.2d at 539 (quoting Texas
    
    v. Seatrain Int’l, S.A., 
    518 F.2d 175
    , 179 (5th Cir. 1975)).
    
    
    
          B. Constitutional Delegation of Authority to the States
    
          The Constitution delegates to the states the authority to establish and
    
    implement procedures for selecting Presidential electors. The Constitution
    
    provides that “[e]ach State shall appoint, in such Manner as the Legislature thereof
    
    may direct, a Number of Electors. . . .” U.S. Const. art. II, § 1, cl. 2.1 The United
    
          1
                 Article II, Section 1, Clause 2 of the Constitution provides:
    
                 Each State shall appoint, in such Manner as the Legislature thereof
                 may direct, a Number of Electors, equal to the whole Number of
    
                                                  31
    States Code provides that the timely appointment of Presidential electors pursuant
    
    to state law is conclusive. See 3 U.S.C. § 5.2 The Supreme Court has confirmed
    
    this broad delegation of power to the states, subject to the limitation that a state
    
    may not exercise this power in a manner that violates specific provisions of the
    
    Constitution of the United States. See McPherson v. Blacker, 
    146 U.S. 1
    , 
    13 S. Ct. 3
     (1892). See also Anderson v. Celebrezze, 
    460 U.S. 780
    , 796 n.18, 
    103 S. Ct. 1564
    , 1573 n.18 (1983) (stating that “[t]he Constitution expressly delegates
    
    authority to the States to regulate the election of Presidential electors,” but that this
    
    does not give states the power to impose unconstitutional burdens on the right to
    
    vote); Williams v. Rhodes, 
    393 U.S. 23
    , 29, 
    89 S. Ct. 5
    , 9 (1968) (stating that the
    
    
    
                 Senators and Representatives to which the State may be entitled in
                 the Congress: but no Senator or Representative, or Person holding
                 an Office of Trust or Profit under the United States, shall be
                 appointed an Elector.
          2
                 3 U.S.C. § 5 provides:
    
                 If any State shall have provided, by laws enacted prior to the day
                 fixed for the appointment of the electors, for its final determination
                 of any controversy or contest concerning the appointment of all or
                 any of the electors of such State, by judicial or other methods or
                 procedures, and such determination shall have been made at least
                 six days before the time fixed for the meeting of the electors, such
                 determination made pursuant to such law so existing on said day,
                 and made at least six days prior to said time of meeting of the
                 electors, shall be conclusive, and shall govern in the counting of
                 the electoral votes as provided in the Constitution, and as
                 hereinafter regulated, so far as the ascertainment of the electors
                 appointed by such State is concerned.
    
                                                  32
    extensive powers granted to the states to pass laws regulating the selection of
    
    electors is subject to the limitation that these powers “may not be exercised in a
    
    way that violates other specific provisions of the Constitution”); Duncan v.
    
    Poythress, 
    657 F.2d 691
    , 699 (5th Cir. Unit B 1981) (stating that while the
    
    Constitution provides no guarantee against innocent irregularities in the
    
    administration of state elections, in rare situations where state election procedures
    
    undermine the basic fairness and integrity of the democratic system, a
    
    constitutional violation exists).
    
          While the unconstitutional exercise of state power is prohibited, the Supreme
    
    Court has recognized that a state’s regulations governing the electoral process will
    
    inevitably impact, in a manner that may burden or restrict, its citizens’ exercise of
    
    their right to vote. See Burdick v. Takushi, 
    504 U.S. 428
    , 433, 
    112 S. Ct. 2059
    ,
    
    2063 (1992); Anderson, 460 U.S. at 788, 103 S. Ct. at 1570. The Supreme Court
    
    has acknowledged that such restrictions are necessary “if [elections] are to be fair
    
    and honest . . . .” Storer v. Brown, 
    415 U.S. 724
    , 730, 
    94 S. Ct. 1274
    , 1279 (1974).
    
    In the context of a Presidential election, the Supreme Court has confirmed that a
    
    state’s interest in conducting an orderly and fair election is “generally sufficient to
    
    justify reasonable, nondiscriminatory restrictions.” Anderson, 460 U.S. at 788,
    
    103 S. Ct. at 1570.
    
    
                                               33
           To preserve the essential balance between states’ power to govern elections
    
    and voters’ constitutional rights, the Supreme Court has developed a flexible
    
    standard to use in assessing constitutional challenges to a state’s regulation of
    
    elections. The Supreme Court described this standard succinctly in Burdick v.
    
    Takushi, 
    504 U.S. 428
    , 
    112 S. Ct. 2059
     (1992):
    
           [W]hen [First and Fourteenth Amendment] rights are subjected to
           severe restrictions, the regulation must be narrowly drawn to advance
           a state interest of compelling importance. But when a state election
           law provision imposes only reasonable, nondiscriminatory restrictions
           upon the First and Fourteenth Amendment rights of voters, the State's
           important regulatory interests are generally sufficient to justify the
           restrictions.
    
    
    Id. at 434, 112 S. Ct. at 2063 (internal quotation marks and citations omitted).
    
           Our Circuit’s precedent addressing constitutional challenges to state election
    
    processes has reflected comparable deference to state regulation of elections. We
    
    have held that the scope of voters’ exercise of their right to vote is restricted in the
    
    state election context by considerations of “[t]he functional structure embodied in
    
    the Constitution, the nature of the federal court system and the limitations inherent
    
    in the concepts both of limited federal jurisdiction and the remedy afforded by
    
    section 1983 . . . .” Gamza v. Aguirre, 
    619 F.2d 449
    , 452-53 (5th Cir. 1980);3 see
    
           3
                   The Eleventh Circuit, in the en banc decision Bonner v. City of Prichard, 
    661 F.2d 1206
    , 1209 (11th Cir. 1981), adopted as precedent decisions of the former Fifth Circuit
    rendered prior to October 1, 1981.
    
                                                   34
    also Curry v. Baker, 
    802 F.2d 1302
    , 1314 (11th Cir. 1986) (“Although federal
    
    courts closely scrutinize state laws whose very design infringes on the rights of
    
    voters, federal courts will not intervene to examine the validity of individual
    
    ballots or supervise the administrative details of a local election. Only in
    
    extraordinary circumstances will a challenge to a state election rise to the level of a
    
    constitutional deprivation.”) (internal citation omitted); Duncan, 657 F.2d at 701.
    
    We have emphasized that federal court intervention is not appropriate in “garden
    
    variety” disputes over election irregularities, but that redress of alleged
    
    constitutional injuries is appropriate if “the election process itself reaches the point
    
    of patent and fundamental unfairness . . . .” Roe v. Alabama, 
    43 F.3d 574
    , 580
    
    (11th Cir. 1995) (quoting Curry, 802 F.2d at 1315).
    
          These principles guide my analysis of the Plaintiffs’ likelihood of success in
    
    their constitutional challenges to Florida’s election laws. The Plaintiffs argue on
    
    appeal that the district court erred by refusing to enjoin the post-election manual
    
    recounting of ballots in four Florida counties, because they allege that these
    
    recounts violate the constitutional rights of the state’s voters. The Plaintiffs
    
    advance two arguments, an equal protection argument and a substantive due
    
    process argument. I discuss each in turn and cannot conclude based on the sparse
    
    record before this Court that the district court abused its discretion in denying the
    
    
                                               35
    Plaintiffs’ motion for preliminary injunctive relief. I believe that the Plaintiffs
    
    have failed to establish with sufficient clarity a severe burden or impact on the
    
    rights of Florida voters. See Northeastern Fla. Chapter of Ass’n of Gen.
    
    Contractors of Am. v. City of Jacksonville, Fla., 
    896 F.2d 1283
    , 1285
    
    (“Preliminary injunctions of legislative enactments – because they interfere with
    
    the democratic process and lack the safeguards against abuse or error that come
    
    with a full trial on the merits – must be granted reluctantly and only upon a clear
    
    showing that the injunction before trial is definitely demanded by the
    
    Constitution.”). Rather, the alleged impacts are reasonable and are justified by
    
    their furtherance of the state’s important regulatory interests in ensuring accurate
    
    and complete election results. Accordingly, the Plaintiffs fail to make the requisite
    
    showing of a substantial likelihood of success on the merits of their claims, and the
    
    district court thus did not abuse its discretion in refusing to grant a preliminary
    
    injunction.
    
    
    
          C. Equal Protection Claim
    
          The Plaintiffs claim that Florida’s statutory manual recount provision as
    
    applied in this case violates the rights of all voters to be treated equally because the
    
    manual recounts are limited to four heavily Democratic counties. The crux of the
    
    
                                               36
    Plaintiffs’ equal protection argument is that some ballots in counties not
    
    conducting manual recounts will not be counted despite the voters’ intent, because
    
    the ballots are not machine-legible, while identical ballots in counties conducting
    
    manual recounts will be counted.4 The argument boils down to this: there is
    
    greater certainty in some counties than in others that every voter’s intent is
    
    effectuated. I conclude that this argument fails to state a violation of the equal
    
    protection clause.
    
    Under the framework developed by the Supreme Court, when a state election law
    
    severely burdens voters’ constitutional rights, it must be narrowly tailored to serve
    
    a compelling interest; however, lesser burdens trigger less exacting review, and a
    
    state's important regulatory interests are typically enough to justify reasonable,
    
    nondiscriminatory restrictions. Timmons v. Twin Cities Area New Party, 
    520 U.S. 351
    , 358, 
    117 S. Ct. 1364
    , 1370 (1997) (citing Burdick, 504 U.S. at 434, 112 S. Ct.
    
    at 2063).
    
    
    
    
           4
                    For example, the Plaintiffs point to the fact that some ballots that are imperfectly
    punched will be counted in at least one manual-recount county, while an identical ballot would
    not be machine-counted, and thus would not be counted in a county not conducting manual
    recounts. In Florida Democratic Party v. Palm Beach County Canvassing Bd., No. 00-11078
    (Fla. Palm Beach Co. Cir. Ct., Nov. 22, 2000), Circuit Judge Jorge Labarga held that the Palm
    Beach County Canvassing Board could not follow a policy of per se exclusion of any ballot, but
    that each ballot must be considered in light of the totality of circumstances and that where the
    voter’s intent could be fairly and satisfactorily ascertained, that intent should be given effect.
    
                                                     37
          The first step in this analysis, then, is to determine whether Florida’s manual
    
    recount provision severely burdens the rights of those voters in counties not
    
    conducting manual recounts, because their ballots receive less scrutiny than those
    
    of voters in counties conducting manual recounts. I believe that it does not.
    
          In reaching this conclusion, I note first that the Plaintiffs could not credibly
    
    argue that the mere availability of manual recounts in some counties, but not in
    
    others, places an inequitable burden on their right to vote. Taking this argument to
    
    its logical conclusion would lead to the untenable position that the method of
    
    casting and counting votes would have to be identical in all states and in every
    
    county of each state. For example, if one state counted ballots by hand while
    
    another counted by machine, there inevitably would be some ballots in the manual-
    
    recount state that were counted notwithstanding the fact that the identical ballot in
    
    the machine-count state would not be counted. The only apparent way to avoid
    
    this disparity would be for every state to use an identical method of counting. No
    
    court has held that the mere use of different methods of counting ballots constitutes
    
    an equal protection violation. Such a position would be manifestly inconsistent
    
    with the command of Article II, Section 1, Clause 2, that Presidential electors are
    
    to be appointed in the manner directed by each state legislature. Accord Anderson,
    
    460 U.S. at 796 n.18, 103 S. Ct. at 1573 n.18; Williams, 
    393 U.S. 23
     at 29, 89 S.
    
    
                                              38
    Ct. at 9. Moreover, there is nothing uncommon or unusual in a state statute
    
    permitting and regulating recounts. The Supreme Court has acknowledged that
    
    recount procedures are a common and practical means of ensuring fair and accurate
    
    election results. See Roudebush v. Hartke, 
    405 U.S. 15
    , 25, 
    92 S. Ct. 804
    , 810-11
    
    (1972). In Roudebush, the Supreme Court noted with approval that Indiana, along
    
    with many other states, had made vote recounts available to guard against
    
    irregularity or error in the tabulation of votes, and the Court stated that such
    
    recount provisions are “within the ambit of the broad powers delegated to the
    
    States by Art. I, § 4.” Id.
    
          The Plaintiffs attempt to bolster their treat-every-ballot-alike argument by
    
    suggesting that partisan influences have tainted the operation of Florida’s manual
    
    recount procedures in this case. The Plaintiffs allege that partisan influences have
    
    intruded in two ways: (1) that the Florida Democratic Party selectively requested
    
    manual recounts in a few populous counties that indicated significantly more Gore
    
    votes than Bush votes in order to gain political advantage; and (2) that the lack of
    
    statutory standards guiding the canvassing boards’ decisions to grant manual
    
    recounts permitted partisan influences to influence those decisions.
    
          The statute itself provides several safeguards against the kind of abuses
    
    suggested by the Plaintiffs. Pursuant to the statute, a candidate or party can only
    
    
                                              39
    request, not mandate, a manual recount, and the decision is made by a county
    
    canvassing board composed of three statutorily designated officials, including a
    
    county court judge, none of whom are active participants in the candidacy of any
    
    candidate. See Fla. Stat. §102.141. The canvassing board’s discretion is not
    
    standardless, but rather is guided by a statutory purpose of determining the
    
    intention of voters and correcting “an error in the vote tabulation which could
    
    affect the outcome of the election.” Id. §102.166(5). Florida law further provides
    
    that canvassing board meetings must be open to the public. See id. §286.0105(1).
    
    Finally, a canvassing board’s decision to grant or deny a manual recount is subject
    
    to judicial review. See Broward County Canvassing Bd. v. Hogan, 
    607 So. 2d 508
    
    (Fla. 4th DCA 1992). Once a manual recount has been authorized, statutory
    
    safeguards are provided to ensure that the results are fair and accurate, and
    
    untainted by partisan manipulation.5 The combination of the composition of the
    
    canvassing boards, the statutory standards guiding their discretion, and the
    
    availability of judicial review provides meaningful checks on the exercise of
    
    discretion by canvassing boards, and reduces the risk of partisan influences tainting
    
    the process.
    
    
    
    
          5
                   These provisions are described infra at 27.
    
                                                   40
           Especially with respect to the Plaintiffs’ concern that political candidates can
    
    select particular counties, but also relevant to the Plaintiffs’ concern about the
    
    discretion of canvassing boards, any candidate has an equal right and an equal
    
    opportunity to request manual recounts in any county. See Fla. Stat.
    
    §102.166(4)(a). The Florida statute clearly placed the political parties in this case
    
    on notice of this right and opportunity.6 Other safeguards relevant to both of the
    
    Plaintiffs’ concerns include: the fact that both the request and decision must be
    
    guided by the statutory standards of determining voters’ intent and correcting error
    
    which could affect the outcome, see id. §102.166(5), (7)(b); the fact that the
    
    decision is made, not by an ad hoc board, but by an existing board composed of
    
    statutorily designated officials, including a county judge, who are not active
    
    participants in the candidacy of any candidate, see id. §102.141; the fact that
    
    canvassing board meetings and any manual recounts must be open to the public,
    
    see id. §§ 102.166(6), 286.0105(1); and the fact that a canvassing board’s decision
    
    
    
    
           6
                   The Plaintiffs do not claim to have lacked timely actual notice that manual
    recounts were requested by the Florida Democratic Party in the four counties at issue in this
    case. Indeed, the record reveals that the manual recounts were requested on Thursday,
    November 9, 2000, and that the Republican Party representatives in Miami-Dade County and
    Broward County filed responses opposing the manual recounts on the same day, well within the
    72-hour statutory deadline for making requests in other counties, i.e., midnight on Friday,
    November 10, 2000.
    
                                                  41
    is subject to judicial review. See Broward County Canvassing Bd., 607 So. 2d at
    
    508.
    
           In assessing the severity of the impact on the right to vote, the scarcity of
    
    evidence in the instant record is also significant. On the sparse record in this
    
    appeal, I cannot conclude that Plaintiffs have made the showing requisite for relief
    
    at this preliminary judgment stage. I cannot conclude that Plaintiffs have
    
    established actual partisan manipulation or fraud. The Plaintiffs do not claim that
    
    any canvassing board unfairly refused to conduct a manual recount. They argue
    
    on appeal that canvassing board officials may have a strong personal interest in the
    
    outcome of the election; however, such a vague allegation of a possible
    
    manipulative or discriminatory motive does not rise to the level of severity
    
    required to merit strict scrutiny of the Plaintiffs’ equal protection claims.
    
           Applying a reasonableness standard, therefore, to judge the constitutionality
    
    of Florida’s manual recount provision, see Burdick, 504 U.S. at 434, 112 S. Ct. at
    
    2063, I would conclude that the state has sufficiently strong interests to justify the
    
    manual recounting of votes within the established statutory framework. As
    
    provided by the plain language of the statute, the manual recount provisions are
    
    designed to remedy errors in the vote tabulation “which could affect the outcome
    
    of the election” and to arrive at the true “voters’ intent.” Fla. Stat. §§ 102.166(5),
    
    
                                               42
    (7)(b). Florida has a strong interest in ensuring that the results of an election
    
    accurately reflect the intent of its voters. A manual recount provision as a
    
    supplement to mechanical counting provides a valid method to discern the will of
    
    voters, where doubt is raised as to the validity of a machine count.
    
          With respect to the county-by-county differences which the Plaintiffs allege
    
    violate their equal protection rights, the state legislature expressly delegated to
    
    each county the decision-making authority regarding whether and how to conduct
    
    manual recounts, within the context of the statutory standard and procedures, and
    
    subject to the statutory restraints and safeguards, all as discussed above. There are
    
    strong and obvious state interests, both practical and administrative, supporting
    
    Florida’s decentralization of this function to the county level. I cannot conclude
    
    that the Constitution would require that any manual recount be conducted
    
    statewide.7 A statewide requirement would impose a very significant
    
    administrative burden, and an often unnecessary one, as there are innumerable
    
    circumstances in which a manual recount would be warranted only in a single
    
    county. The decision to decentralize is both reasonable and nondiscriminatory.
    
    Indeed, in doing so, Florida is merely exercising the power expressly delegated in
    
    Art. II, § 1, cl. 2, and it is exercising that power by following the same pattern of
    
    
          7
                 Many states decentralize this process without requiring statewide recounts.
    
                                                 43
    federalism reflected in the Constitution itself. Further, with respect to Florida’s
    
    designation of candidates and parties as the entities authorized to request a manual
    
    recount, this would seem to be a natural and reasonable choice. They are the ones
    
    most likely to be alert to problems with a machine tally.8 Permitting only
    
    candidates, political parties and committees, but not individual voters, to request
    
    recounts is a common practice among the states.9 I believe that Florida’s interest
    
    in the efficient administration of elections is sufficient to justify its decision to
    
    provide for the implementation of its manual recount provision on a decentralized,
    
    localized basis.
    
           My conclusion that the deprivation of rights alleged by the Plaintiffs does
    
    not merit strict scrutiny is supported by the contrast between this case and cases in
    
    
           8
                   There are obvious and powerful reasons not to permit individual voters to trigger
    a manual recount; their interests are adequately represented by the candidates and parties, and
    individual voter participation would likely lead to administrative nightmares.
           9
                    Many states permit a recount to be triggered only upon the request of a candidate,
    political party and/or a political committee, but not upon the appeal of an individual voter. See
    e.g., ARK. CODE ANN. § 7-5-319 (candidate); COLO. REV. STAT. § 1-10.5-106 (candidate);
    IDAHO CODE § 34-2301 (candidate); IND. CODE ANN. § 3-12-11-1 (candidate or political party’s
    county chairperson); IOWA CODE § 50.48 (candidate); LA. REV. STAT. § 1451 3-12-11-1
    (candidate or political party); ME. REV. STAT. ANN. tit. 21-A, § 737-A (losing candidate); MD.
    CODE. ANN., Elections § 12-101 (losing candidate); MO. REV. STAT. § 115.553 (candidate); N.J.
    STAT. ANN. § 19:28-1 (candidate); OKLA. STAT. ANN. tit. 26, § 8-111 (candidate); OR. REV.
    STAT. § 258.161 (candidate, political party or county clerk); TEX. ELEC. CODE ANN. § 212.023
    (candidate); VA. CODE ANN. § 24.2-800 (candidate); WASH. REV. CODE § 29.64.010 (candidate
    or political party); W. VA. CODE § 3-6-9 (candidate); WIS. STAT. ANN. § 9.01 (candidate); WYO.
    STAT. ANN. §§ 22-16-109 & 110 (losing candidate or county canvassing board).
    
    
                                                   44
    which the Supreme Court has applied strict scrutiny: those cases have involved a
    
    complete deprivation of the right to vote or a differential weighting of votes based
    
    on impermissible classifications. In O'Brien v. Skinner, 
    414 U.S. 524
    , 
    94 S. Ct. 740
     (1974), the Supreme Court applied strict scrutiny to invalidate a state electoral
    
    scheme that completely denied individuals the right to vote based on arbitrary
    
    distinctions. See id. at 533, 94 S. Ct. at 745 (invalidating a New York absentee
    
    ballot statute that operated to deny otherwise eligible prisoners the right to vote,
    
    based solely on the prisoner’s county of incarceration). The reasoning of O’Brien
    
    does not apply here, however, as the Plaintiffs do not assert that they have been
    
    denied the right to vote or to have their vote counted; rather, they assert that their
    
    votes have received unequal treatment in the post-election counting process.
    
          In the one-person, one-vote cases, the Supreme Court has held that states’
    
    weighted voting systems, which arbitrarily and systematically granted a lesser
    
    voice to some voters based on their geographic location, violated the voters’ right
    
    to equal protection. See Moore v. Ogilvie, 
    394 U.S. 814
    , 819, 
    89 S. Ct. 1493
    , 1496
    
    (1969); Reynolds v. Sims, 
    377 U.S. 533
    , 563, 
    84 S. Ct. 1362
    , 1382 (1964); Roman
    
    v. Sincock, 
    377 U.S. 695
    , 709-10, 
    84 S. Ct. 1449
    , 1458 (1964); Gray v. Sanders,
    
    
    372 U.S. 368
    , 379-80, 
    83 S. Ct. 801
    , 808 (1963). The facts presented by those
    
    cases are different from the facts here, however. The ballots of voters in Florida
    
    
                                               45
    counties conducting manual recounts are not receiving greater weight than are
    
    votes elsewhere in Florida. The additional scrutiny of ballots afforded under
    
    Florida’s manual recount procedures does not weigh the value of votes; it merely
    
    verifies the count. Unlike the foregoing cases which have held that the systematic
    
    unequal weighting of votes is unconstitutional, here there is no automatic,
    
    inevitable, or systematic granting of greater weight to the choices of any voter or
    
    class of voters.
    
          This conclusion is further supported by the fact that the Constitution itself,
    
    in Article II, § 1, cl. 2, contemplates that each state will direct its own (potentially
    
    different) method of appointing Presidential electors. Within each state, federal
    
    courts have acknowledged that diverse methods of voting may be employed. See
    
    Hendon v. North Carolina State Bd. of Elections, 
    710 F.2d 177
    , 181 (4th Cir.
    
    1983) (citing Carrington v. Rash, 
    380 U.S. 89
    , 91, 
    85 S. Ct. 775
    , 777 (1965)). The
    
    Supreme Court has confirmed that recounts are well within the ambit of a state’s
    
    authority, see Roudebush, 405 U.S. at 25, 92 S. Ct. at 810-11, and the manual
    
    counting of ballots has been commonplace historically. In the light of the
    
    constitutional delegation of authority to the states, confirmed by case law, I believe
    
    that manual recounts in some counties, while identical ballots in other counties are
    
    
    
    
                                               46
    counted and recounted only by machine, and the inevitable variances that this will
    
    produce, do not in themselves severely burden the right to vote.
    
          Florida’s statutory manual recount provision does not limit the Plaintiffs’
    
    ability to cast their votes, nor significantly undermine the certainty that their votes
    
    will be counted. While the statute permits enhanced scrutiny to be given to ballots
    
    in counties where the candidates or parties have requested and the canvassing
    
    boards have authorized a manual recount, the statute provides ample safeguards to
    
    ensure that the decision to conduct manual recounts, and the manner in which the
    
    recounts are conducted, is open, fair, and accurate. While there is some potential
    
    for the statute to be manipulated by those with partisan interests, the sparse record
    
    here does not in my opinion establish a clear showing of partisan fraud or
    
    misconduct that would be required in this preliminary injunction stage. Nor does
    
    the record reveal concrete evidence of substantial or uncorrected errors in manual
    
    counting that have generated erroneous vote tabulations. Therefore, I conclude
    
    that at this stage the Plaintiffs have failed to sufficiently demonstrate a severe
    
    impact on their equal protection rights, so that heightened scrutiny of Florida’s
    
    manual recounts is not merited. See Burdick, 504 U.S. at 434, 112 S. Ct. at 2063.
    
    I believe that Florida’s important regulatory interests are sufficient to justify the
    
    
    
    
                                               47
    reasonable, nondiscriminatory impact the Plaintiffs have shown to their voting
    
    rights. 10
    
    
    
    
           10
                    Much of Plaintiffs’ argument focuses on the assumption that a candidate’s self-
    interest in selecting counties likely to produce more undervotes for him introduces an invidious
    and unconstitutional discrimination. My discussion in text reveals the weaknesses which I see in
    this argument. In summary, a candidate can only request, not mandate, a recount. The decision
    is made by a county canvassing board with several built-in statutory safeguards – including the
    composition of the board (preordained county officials, including a county judge, none of whom
    can be active in any candidacy), statutory standards to guide the board’s discretion (relating to
    the intention of voters and an error in the mechanical tabulation), and the fact that the board’s
    meetings must be open and are subject to public scrutiny and court review. Strong state interests
    support county-level decentralization; mandating statewide recounts in every instance would
    impose severe administrative burdens. Rather than invidious discrimination, I suggest that the
    statute contemplates that candidates or parties are the appropriate entities to make such request
    because their self-interest prompts them to be alert to problems in a machine tally which might
    make a recount appropriate. Like the statutory contemplation, a requesting candidate would also
    contemplate that any opposing candidate would be alert to problems in counties favorable to
    him. There is an equal right and an equal opportunity in that respect, as stated clearly in the
    statute. Nothing in the statute suggests that only a candidate losing in a particular county can
    make a request in that county; the statutory standard is an error in the vote tabulation that could
    affect the outcome of the election. Nothing suggests that the statute means the “outcome” in that
    particular county; rather, the statute says “outcome of the election” itself. Nothing suggests that
    a canvassing board may not consider the potential effects of other recounts in its own decision to
    authorize a manual recount. Nothing prevents a candidate or a party requesting a manual recount
    from notifying a canvassing board of the fact that other counties may authorize or have
    authorized manual recounts which may change the vote totals. As applied here, the record
    before this Court does not reveal a motive by the Democratic Party to deprive the Republican
    Party of its opportunity to request manual recounts. The requests challenged here were not
    strategically delayed; rather, the requests were made on November 9, 2000, more than 24 hours
    before the 72-hour deadline, leaving ample time for the opposing candidate to make requests in
    response. Permitting candidates to request recounts is a reasonable way to promote the state’s
    legitimate and strong interest in ensuring a full and accurate count of ballots where the voters’
    intention can be fairly and satisfactorily ascertained, especially so when any request is
    circumscribed by the statutory safeguards provided here. Indeed, many states permit candidates
    or political parties to request such recounts; if Plaintiffs’ arguments prevail, the status of many
    state election laws, and many elections, would be constitutionally suspect.
    
                                                    48
          For the foregoing reasons, I would conclude that the Plaintiffs have failed to
    
    prove a likelihood of success on the merits of their equal protection claim.
    
    
    
          D. Substantive Due Process Claim
    
          The Plaintiffs argue that the counting procedures used by counties
    
    conducting manual recounts are arbitrary and rife with irregularities that constitute
    
    a denial of due process. Specifically, the Plaintiffs allege that the standards used to
    
    decide which marks or punches on a ballot are counted as votes differ from county
    
    to county and further that these standards have been changed mid-count in one
    
    county. I believe that the record evidence fails to establish that the alleged
    
    unreliability or inaccuracy of manual recounting rises to the level of a severe
    
    burden on the right to vote.
    
          In Curry v. Baker, 
    802 F.2d 1302
     (11th Cir.1986), we refused to find a
    
    constitutional violation in a state gubernatorial candidate’s argument that election
    
    officials had miscounted ballots. See id. at 1319. We stated that, in order for the
    
    election process to reach the point of “patent and fundamental unfairness,” the
    
    “situation must go well beyond the ordinary dispute over the counting and marking
    
    of ballots.” Id. at 1315 (quoting Duncan v. Poythress, 
    657 F.2d 691
    , 703 (5th Cir.
    
    1981)). In Curry, we emphasized that a federally protected right is implicated only
    
    
                                              49
    “where the entire election process – including as part thereof the state’s
    
    administrative and judicial corrective process – fails on its face to afford
    
    fundamental fairness.’” Id. at 1317 (quoting Griffin, 570 F.2d at 1078).
    
          These principles resonate in numerous federal cases holding that disputes
    
    over human or mechanical errors in ballot counting, absent a showing of
    
    intentional manipulation, do not rise to the level of a federal constitutional
    
    violation. See Gold v. Feinberg, 
    101 F.3d 796
    , 802 (2d Cir.1996) (holding that
    
    human errors resulting in the miscounting of votes, the presence of ineligible
    
    candidates on ballot, and the late delivery of voting machines to some polling
    
    places, did not rise to the level of a constitutional violation because adequate state
    
    remedies existed); Bodine v. Elkhart County Elec. Bd., 
    788 F.2d 1270
    , 1272 (7th
    
    Cir.1986) (concluding that voter-plaintiffs failed to state a constitutional claim
    
    where mechanical and human error resulted in errors in counting votes, but where
    
    there was no allegation that the defendants acted with intent to undermine the
    
    election); Gamza v. Aguirre, 
    619 F.2d 449
    , 454 (5th Cir.1980) (concluding that
    
    allegations of negligent vote counting did not state a constitutional claim);
    
    Hennings v. Grafton, 
    523 F.2d 861
    , 864-65 (7th Cir. 1975) (stating that while due
    
    process rights would be implicated on a showing of “willful conduct which
    
    undermines the organic processes by which candidates are elected,” no
    
    
                                              50
    constitutional guarantee protects against inadvertent errors or irregularities;
    
    instead, state law must provide the remedy); Pettengil v. Putnam County R-1 Sch.
    
    Dist., 
    472 F.2d 121
    , 123 (8th Cir. 1973) (refusing to intervene in a controversy
    
    over whether illegally cast ballots were mistakenly counted by local election
    
    officials); Powell v. Power, 
    436 F.2d 84
    , 88 (2d Cir.1970) (concluding that no
    
    federal remedy existed for human error resulting in non-party members mistakenly
    
    allowed to vote in congressional primary).
    
           Despite these precedents, in reliance on our opinion in Roe v. Alabama, 
    43 F.3d 574
     (11th Cir. 1995), the Plaintiffs argue that post-election changes in ballot-
    
    counting procedures are fundamentally unfair and thus rise above the level of
    
    “garden variety” election disputes to constitute a substantive due process violation.
    
    In Roe, a state court order would have forced Alabama election officials to count
    
    absentee ballots that had been rejected pursuant to a state statute and in accordance
    
    with previous state practice.11 See id. at 578. We concluded that such a post-
    
    election departure from the state’s statutory mandate and previous election practice
    
    would undermine the fundamental fairness of the election. See id. at 581. As we
    
    explained in Roe, our decision was based on the fact that such a change would
    
           11
                  The applicable Alabama statute required absentee voters to send their ballots
    accompanied by an affidavit which was either notarized or signed by two witnesses. It was
    undisputed in Roe that the previous practice in Alabama, as mandated by statute, had been to
    disregard absentee ballots that were mailed in without the required affidavit.
    
                                                  51
    disenfranchise those people who would have voted absentee, but were deterred
    
    from doing so by the burden of complying with the statutory requirements for
    
    completing absentee ballots. See id.; see also Griffin v. Burns, 
    570 F.2d 1065
    ,
    
    1078-79 (1st Cir.1978) (finding fundamental unfairness in a state’s unforeseeable
    
    invalidation of absentee ballots which resulted in the disqualification of ten percent
    
    of the total votes cast in a primary election). Cf. Bennett v. Yoshina, 
    140 F.3d 1218
    , 1227 (9th Cir. 1998) (rejecting a substantive due process challenge to
    
    Hawaii’s decision to count blank ballots as votes against convening a state
    
    constitutional convention, where there was no suggestion that voters in favor of the
    
    constitutional convention had relied on the state’s previous practice of disregarding
    
    blank ballots in a constitutional convention vote); Partido Nuevo Progresista v.
    
    Barreto Perez, 
    639 F.2d 825
    , 828 (1st Cir.1980) (holding that the Supreme Court of
    
    Puerto Rico’s decision to count mismarked ballots where the intent of the voter
    
    was clear did not violate due process, because here could have been no detrimental
    
    reliance by any voter on the assumed invalidity of mismarked ballots).
    
          Our decision in Roe is distinguishable from the instant case in at least two
    
    significant ways. First, at this stage of the litigation, the record does not establish
    
    the requisite showing of a significant post-election departure from Florida’s
    
    
    
    
                                               52
    manual recount practices before this election.12 Unlike the circumstance in Roe,
    
    where the post-election change of procedure violated a statutory mandate, in this
    
    case Florida’s statute expressly provides for manual recounts and establishes the
    
    voter-intent standard to be used in conducting the recounts. While the Plaintiffs
    
    have alleged that various canvassing boards have used different standards or have
    
    changed their standards with respect to the analysis of particular physical attributes
    
    of ballots, the Plaintiffs have not alleged that any board has departed from a good-
    
    faith attempt to determine the voters’ intent. Thus, the Plaintiffs have failed to
    
    show any departure from statutory mandate or from a pre-election procedure that
    
    rises to the level of fundamental unfairness.
    
    
    
    
           12
                   There remain in the present record sufficient disputed facts as to any significant
    change of practice that I cannot conclude with the necessary clarity that any significant number
    of votes was counted pursuant to a changed practice.
    
            My opinion would not change, even assuming that there may have been a change of
    practice -- i.e., from counting only partially detached chads to counting ballots that were not
    partially detached, but under the totality of the circumstances the intention of the voter could be
    fairly and satisfactorily ascertained. See Florida Democratic Party v. Palm Beach County
    Canvassing Board, No. 00-11078 (Fla. Palm Beach Co. Cir. Ct., Nov. 22, 2000). The statutory
    standard – i.e., the determination of the voter’s intent within the Canvassing Board’s discretion,
    subject to judicial review – has remained constant. Even assuming some change with respect to
    the discretionary interpretation of particular physical attributes of ballots, there is no evidence in
    this record that a practice has been implemented which is inconsistent with the plain statutory
    standard, as was the case in Roe.
    
    
    
                                                      53
          Second, Roe is distinguishable because this record does not show
    
    detrimental reliance by voters. In this case, there is no evidence to suggest that a
    
    voter in any county failed to adequately punch or mark a ballot in reliance on a
    
    belief that a vote in some other county would not be counted if a ballot were only
    
    partially punched, i.e., in reliance on an anticipated lack of a manual recount.
    
    Indeed, it would be manifestly unreasonable to suggest such reliance. Quite the
    
    contrary, the statute expressly puts voters on notice of the possibility of a manual
    
    recount. As a corollary to this obvious lack of reliance, this case involves no
    
    disenfranchisement of voters, unlike the disenfranchisement in Roe of people who
    
    failed to vote absentee because of the inconvenience imposed by the statutory
    
    notarization/witness requirement.
    
          In addition to the lack of detrimental reliance by voters on Florida’s
    
    previously established election procedures, the record before us is not sufficient to
    
    conclude that the district court was clearly erroneous in declining to find
    
    purposeful, systematic discrimination in the manual recounting procedures
    
    employed. In fact, the manual recount statute mandates procedures to ensure
    
    fairness and accuracy in the conduct of any manual recount. Any manual recount
    
    must include at least one percent of the total votes cast and at least three precincts.
    
    See Fla.Stat. §102.166(4)(d). A manual recount must be open to the public, and
    
    
                                               54
    counting teams must have at least two members who are, when possible, members
    
    of at least two political parties. See id. § 102.166(6), (7)(a). Determination of the
    
    voter’s intent is the statutory standard. See id. § 102.166(7)(b). Florida law
    
    provides that the decisions and actions of county canvassing boards are subject to
    
    judicial review, not only with respect to their decision on whether to conduct a
    
    manual recount, as discussed above, but also with respect to the general validity of
    
    their counting procedures. See Beckstrom v. Volusia County Canvassing Bd., 
    707 So. 2d 720
     (Fla. 1998); Boardman v. Esteva, 
    323 So. 2d 259
     (Fla. 1975). State
    
    courts have authority to review election challenges, whether brought by a candidate
    
    or party as a protest under Fla. Stat. § 102.166, or brought by a candidate, qualified
    
    voter, or taxpayer as a contest under Fla. Stat. § 102.168. A court may void a
    
    challenged election result based on a finding of substantial irregularities that raise a
    
    reasonable doubt as to whether the election results express the will of the voters.
    
    See Beckstrom, 707 So. 2d at 725. These statutory safeguards are calculated to
    
    protect against the risk of the abuses that the Plaintiffs fear. In this case, the
    
    Plaintiffs have failed to persuade me that these safeguards were ineffective. The
    
    district court found, based on the evidence stipulated at the hearing, that “no
    
    evidence has been demonstrated that these recounts have generated erroneous
    
    
    
    
                                               55
    tabulations.” Based on my review of the evidence, I cannot conclude that this
    
    finding was clearly erroneous.13
    
           Under these circumstances, I am not persuaded that Plaintiffs have made the
    
    requisite showing of a severe impact on their right to vote. On this record, they
    
    have failed to prove that this case rises above a “garden variety” dispute over the
    
    counting of ballots to reach the level of fundamental unfairness. Because Florida’s
    
    strong state interests, as discussed above, justify a decentralized vote-counting
    
    process, I conclude that the Plaintiffs fail to show a likelihood of success in
    
    proving their substantive due process claim. Because the Plaintiffs fail to show a
    
    substantial likelihood of success on the merits of their constitutional claims, they
    
    fail to demonstrate that the district court abused its discretion in denying the
    
    motion for preliminary injunctive relief.14
    
           13
                    While this record reveals isolated observations of acts from which a fact finder
    might infer an effort to dislodge a chad, I cannot conclude that the district court was clearly
    erroneous. I see little or no evidence of actual intent to dislodge a chad, or that ballots were
    counted when they were not already partially dislodged. I also note that the presence of
    Republican and Democratic observers, in addition to the intense public scrutiny, helps to ensure
    the integrity of the process.
           14
                     The Plaintiffs also allege a First Amendment violation, essentially arguing that
    Florida’s statute grants county canvassing board members unlimited discretion to impinge on
    voter’s rights through arbitrary decisions regarding whether to conduct manual recounts. In
    another articulation of their argument, the Plaintiffs argue that the canvassing board’s decisions
    are governed by no standards. The Plaintiffs argue that the right to vote is protected by the First
    Amendment. See Williams v. Rhodes, 
    393 U.S. 23
    , 30-31, 
    89 S. Ct. 5
    , 10 (1968) (stating that the
    right to vote is entitled to similar constitutional protections as the First Amendment right of
    association); Carrington v. Rash, 
    380 U.S. 89
    , 
    85 S. Ct. 775
     (1965) (holding that the right to vote
    is a fundamental right protected by the Equal Protection Clause). They argue that the
    
                                                    56
                                          II. CONCLUSION
    
           For the foregoing reasons, I would conclude that Plaintiffs have failed to
    
    establish a substantial likelihood of success warranting federal court intervention
    
    on either equal protection or due process grounds. The conclusion of a majority of
    
    this court that the district court did not abuse its discretion in concluding that
    
    Plaintiffs had failed to establish a substantial likelihood of irreparable harm, and
    
    my conclusion in this concurring opinion that Plaintiffs have failed to establish a
    
    
    
    Constitution prohibits the overbroad exercise of discretion by officials over First Amendment
    rights and, therefore, that Florida’s statute violates the Constitution. See Forsyth County v.
    Nationalist Movement, 
    505 U.S. 123
    , 129-30, 
    112 S. Ct. 2395
    , 2401 (1992) (stating that an
    “impermissible risk of suppression of ideas” exists where “an ordinance . . . delegates overly
    broad discretion to the decisionmaker”).
    
            Contrary to the Plaintiffs’ argument, cases implicating First Amendment standards have
    involved claims that pure speech might be chilled or prevented altogether. See Forsyth County,
    505 U.S. at 129-30, 112 S. Ct. at 2401; City of Jacksonville, 896 F.2d at 1285 (citing Cate v.
    Oldham, 
    707 F.2d 1176
    , 1189 (11th Cir. 1983) and Deerfield Med. Ctr., 661 F.2d at 338). This
    is not such a case. Instead, the constitutional right to vote, and the principle of equality among
    voters, is protected under the Equal Protection Clause of the Fourteenth Amendment. See City
    of Mobile v. Bolden, 
    446 U.S. 55
    , 76, 
    100 S. Ct. 1490
    , 1505 (1980)(citing Reynolds v. Sims, 
    377 U.S. 533
    , 
    84 S. Ct. 1362
     (1964)). I conclude that the Florida manual recount statute satisfies
    equal protection because it contains constitutionally sufficient standards to constrain the
    discretion of canvassing board officials. I describe the statutory and judicially imposed
    constraints on these officials’ discretion supra at 11-13. Based on these constraints, I conclude
    that the challenged provisions of Florida election law do not permit officials to exercise overly
    broad discretion over voters’ rights.
    
             I thus conclude that the Plaintiffs have failed to show a severe burden on their voting
    rights; instead, the statutory safeguards ensure only reasonable, nondiscriminatory burdens. I
    conclude that Florida’s important interests in ensuring accurate, complete election results, and
    the state’s strong interest in its established system of decentralized administration of elections,
    justify the reasonable, nondiscriminatory impact of Florida’s manual recount statute on voters’
    rights. The Plaintiffs thus fail to establish a First Amendment violation.
    
                                                     57
    substantial likelihood of success, are supported by the lack of evidentiary
    
    development in this case and by the preliminary injunction posture of the case.
    
    Especially significant in our consideration of this case is the sparse record on
    
    which Plaintiffs have chosen to proceed.15 The record before us is without the
    
    benefit of discovery or evidentiary hearing. Where, as here, a party has chosen to
    
    forego an evidentiary hearing, it is not entitled to have its disputed representations
    
    accepted as true. See Charette v. Town of Oyster Bay, 
    159 F.3d 749
    , 755 (2d Cir.
    
    1998). The scant evidence in this record has not been tested by the adversarial
    
    process, notwithstanding the fact that material and relevant facts are in dispute. In
    
    addition, the preliminary injunction posture of this case cautions against federal
    
    court intervention. See Northeastern Fla. Chapter of Ass’n of Gen. Contractors of
    
    Am. v. City of Jacksonville, Fla., 
    896 F.2d 1283
    , 1285 (“Preliminary injunctions of
    
    legislative enactments – because they interfere with the democratic process and
    
    lack the safeguards against abuse or error that come with a full trial on the merits –
    
    must be granted reluctantly and only upon a clear showing that the injunction
    
    before trial is definitely demanded by the Constitution.”). I cannot conclude that
    
    Plaintiffs on this sparse record have demonstrated a clear showing, either with
    
    
           15
                    We noted in our November 27, 2000, Order that Plaintiffs’ motion for permanent
    injunctive relief has remained pending in the district court, and that court has remained available
    for further factual development.
    
                                                    58
    respect to the likelihood of success or irreparable injury, and thus have not made a
    
    clear showing that an injunction before trial is definitely demanded by the
    
    Constitution.
    
          For the foregoing reasons, I thus specially concur, in addition to joining the
    
    opinion of the court.
    
    
    
    
                                             59
    TJOFLAT, Circuit Judge, dissenting, in which BIRCH and DUBINA, Circuit
    Judges, join and in which CARNES, Circuit Judge, joins as to Part V. of Judge
    Tjoflat’s dissent in Touchston v. McDermott:
    
    
          I dissent. The Florida election scheme at issue is unconstitutional for the
    
    reasons set forth in my dissenting opinion in Touchston v. McDermott, No. 00-
    
    15985 (11th Cir. Dec. 6, 2000) and by Judge Carnes in his dissenting opinion.
    
    
    
    
                                             60
    BIRCH, Circuit Judge, dissenting, in which TJOFLAT and DUBINA, Circuit
    
    Judges, join:
    
           While I concur in the dissenting opinions by my colleagues, Judges Tjoflat,
    
    Dubina and Carnes, my concern about the constitutional deprivations alleged in
    
    these cases is focused on the lack of standards or guiding principles in the Florida
    
    manual recount statute. Florida’s statutory election scheme envisions hand
    
    recounts to be an integral part of the process, providing a check when there are
    
    “error[s] in the vote tabulation which could affect the outcome of the election.”
    
    See Fla. Stat. Ann. § 102.166(5). The 1989 Florida legislature, however, abdicated
    
    its responsibility to prescribe meaningful guidelines for ensuring that any such
    
    manual recount would be conducted fairly, accurately, and uniformly. While
    
    Florida’s legislature was unquestionably vested with the power under Article II,
    
    Section One of the United States Constitution to devise its own procedures for
    
    selecting the state’s electors, it was also required to ensure that whatever process it
    
    established comported with the equal protection and due process requirements of
    
    the Fourteenth Amendment to that same Constitution.1 Other states, such as
    
    Indiana, have provided clear and definitive standards under which manual recounts
    
    
           1
            See Moore v. Ogilvie, 
    394 U.S. 814
    , 818-19, 
    80 S. Ct. 1493
    , 1496 (1969) (discussing the
    applicability of the Fourteenth Amendment to the nominating process for presidential
    candidates).
    
                                                  61
    are to be conducted. See Ind. Code § 3-12-1-9.5 (providing in part that chads that
    
    have been pierced count as valid votes, but those with indentations that are not
    
    separated from the ballot card do not). Absent similar clear and certain standards,
    
    Florida’s manual recount scheme cannot pass constitutional muster.
    
           Moreover, Congress, to which the electors from Florida will be ultimately
    
    certified, has established a safe harbor, 3 U.S.C. § 5, that requires that such rules
    
    and standards be established before the election. Because the 1989 Florida
    
    legislature has, in my view, abdicated its responsibility to formulate
    
    constitutionally clear and objective statutory rules and standards for the election
    
    process in Florida, it has disenfranchised voters throughout the state.2 The well-
    
    intended and responsible county canvassing boards across the state have been
    
    given, in legislative terms, an unfunded mandate --- discern the voter’s intent
    
    without any objective statutory instructions to accomplish that laudable goal. The
    
    effect of such an unguided, standardless, subjective evaluation of ballots to
    
    ascertain voter intent is to cause votes to be counted (or not to be counted) based
    
    only upon the disparate and unguided subjective opinion of a partisan (two
    
    
    
    
           2
             See Fl. Stat. Ann. § 102.166 (West 1989). See generally Roe v. Alabama, 
    43 F.3d 574
    ,
    581-82 (11th Cir. 1995) (per curiam) (finding that the alteration of objective standards after the
    election disenfranchised voters).
    
                                                    62
    members are elected in partisan voting) canvassing board.3 Since their opinions as
    
    to voter intent are standardless no meaningful judicial review is possible by a
    
    Florida court. Accordingly, by finding an abridgement to the voters’ constitutional
    
    right to vote, irreparable harm is presumed and no further showing of injury need
    
    be made.4
    
           It has been said that to err is human --- and humans vote. Thus, it should not
    
    be surprising that the voting process is subject to error. However, as demonstrated
    
    in the recent Presidential election, the frequency, magnitude and variety of error
    
    associated with the exercise of this sacred right of citizenship is at once astounding
    
    and deeply troubling. Morever, the media’s focus on the campaign preceding
    
    
           3
            See Fl. Stat. Ann. § 102.141 (providing that the County Canvassing Board shall be
    comprised of a county court judge, chairman of the board of county commissioners and
    supervisor of elections; Fl. Stat. Ann. § 124.01(2) (providing for popular election of county
    commissioners); Fl. Const. Art. 8, Sec. 1(d) (providing for popular election of the supervisor of
    elections).
           4
             We have indicated that the injury suffered by a plaintiff is “‘irreparable’ only if it cannot
    be undone through monetary remedies.” Cunningham v. Adams, 
    808 F.2d 815
    , 821 (11th Cir.
    1987). To that end, we have presumed irreparable harm to a plaintiff when certain core rights
    are violated. See Baker v. Buckeye Cellulose Corp., 
    856 F.2d 167
    , 169 (11th Cir. 1988)
    (irreparable harm presumed in Title VII cases); Cate v. Oldham, 
    707 F.2d 1176
    , 1188 (11th Cir.
    1983) (irreparable injury presumed from violation of First Amendment rights); Deerfield Med.
    Ctr. v. City of Deerfield Beach, 
    661 F.2d 328
    , 338 (5th Cir. Unit B 1981) (irreparable injury
    presumed from violation of right to privacy under the Fourteenth Amendment); Northeastern
    Florida Chapter of Ass’n of Gen. Contractors v. City of Jacksonville, Florida, 
    896 F.2d 1283
    ,
    1285-86 (11th Cir. 1990) (explaining that the basis for presuming irreparable injury in Cate and
    Deerfield was that given the “intangible nature” of the violations alleged, the plaintiffs could not
    effectively be compensated by an award of monetary damages). Cf. Richard Feiner & Co. v.
    Turner Entm’t Co., 
    98 F.3d 33
    , 34 (2d Cir. 1996) (irreparable harm presumed when plaintiff
    establishes a prima facie case of copyright infringement).
    
                                                     63
    November 7, having been eclipsed by its subsequent frenzy, has left the average
    
    citizen at the least skeptical, and at the worst cynical, about our democratic
    
    institutions. Morever, in its present incarnation, the post-election debacle that
    
    brings these cases to us for resolution may be cynically viewed by some as
    
    depicted by Congresswoman Shirley Chisholm:
    
          [P]olitics is a beautiful fraud that has been imposed on the people for
          years, whose practitioners exchange gilded promises for the most
          valuable thing their victims own: their votes. And who benefits the
          most? The lawyers.
    
    Shirley Anita Chisholm, Unbought and Unbossed, 1970. To respond in that way
    
    would be a mistake.
    
          While our nation’s citizens have every right to be concerned, exasperated,
    
    fatigued and even cynical, it is my fervent hope that from these events they will
    
    come to understand, if not appreciate, the role of government’s Third Branch in the
    
    life of our precious democracy. Our basic function in this society is to provide a
    
    forum in which disputes --- both great and small (although to those involved, a
    
    dispute is never “small”) --- can be decided in an orderly, peaceful manner; and
    
    with a high level of confidence in the outcome. Lawyers, as officers of the court,
    
    are integral to that process in our adversarial system.
    
          The right to vote --- particularly for the office of President of the United
    
    States, our Commander-In-Chief, --- is one of the most central of our fundamental
    
                                              64
    rights in a democracy.5 Accordingly, any dispute that has at its core the legitimacy
    
    of a presidential election and impacts upon every citizen’s right to vote, deserves
    
    the most careful study, thought and wisdom that we can humanly bring to bear on
    
    the issues entrusted to us. Thus, I feel compelled to attest to the fact that my
    
    brother and sister judges have embraced this case with a sense of duty, concern,
    
    and conscientious hard work that is worthy of the issues before us.
    
           Aware of the importance of these cases6 and the urgency attendant to the
    
    issues presented, we decided to take these disputes en banc --- that is, before the
    
    
    
           5
             An executive like the President has broad discretion; he has the power to affect every
    voter, and thus every voter must be permitted to vote and to have his ballot both counted and
    equally weighed. As the Supreme Court observed in Anderson v. Celebrezze, 
    460 U.S. 780
    , 794-
    95, 
    103 S. Ct. 1564
    , 1573 (1983) (citations omitted):
    
           [I]n the context of a Presidential election, state-imposed restrictions implicate a
           uniquely important national interest. For the President and the Vice President of
           the United States are the only elected officials who represent all the voters in the
           Nation. Moreover, the impact of the votes cast in each State is affected by the
           votes cast for the various candidates in other States. Thus in a Presidential
           election a State's enforcement of more stringent ballot access requirements,
           including filing deadlines, has an impact beyond its own borders. Similarly, the
           State has a less important interest in regulating Presidential elections than
           statewide or local elections, because the outcome of the former will be largely
           determined by voters beyond the State's boundaries.
           6
             These cases have arrived at the appropriate juncture and present circumstances are of
    such an extraordinary scope that the “challenge to a state election rise[s] to the level of a
    constitutional deprivation.” Curry v. Baker, 
    802 F.2d 1302
    , 1314 (11th Cir. 1986). See Roe, 43
    F.3d at 580, 585. The dissent in Roe opined that federal courts should not interject themselves
    into “state election disputes unless extraordinary circumstances affecting the integrity of the
    state’s election process are clearly present in a high degree.” Id. at 585. I am convinced, and
    surmise that the Supreme Court has concluded, that such a situation confronts us now.
    
                                                    65
    entire court of twelve judges.7 Moreover, utilizing a procedure that we normally
    
    employ in death penalty cases, we arranged through the clerks of the district courts
    
    involved to have copies of all filings there “lodged” (i.e., copies provided) with us
    
    contemporaneously.8 Hence, we have been able to review and study the progress
    
    of the factual and legal matters presented in these cases from their inception.
    
    Accordingly, long before the anticipated notices of appeal were filed, formally
    
    bringing them to us, we were about the study and review of the legal issues to be
    
    resolved. Thus, the reader of our opinions9 in this case should understand that our
    
    time for consideration has been considerably longer than it might appear at first
    
    blush.
    
             Just as the electorate was divided in their good faith effort to cast their votes
    
    for our nation’s chief executive, the members of this court have discharged their
    
    duty to interpret the law in the context of this case in an unbiased and sincere
    
    effort. Inevitably the pundits will opine that a judge’s decision is somehow linked
    
    to the political affiliation of the President that appointed the judge. While we at all
    
    levels of the judiciary have come to expect this observation we continue to regret
    
    
             7
              Fed.R.App.P. 35(a)(2).
             8
              11th Cir. R. 22-3.
             9
           All of our opinions are available to the public on the Internet at www.ca11.uscourts.gov
    upon publication.
    
                                                  66
    that some “think” that is so. It may be true that a judge’s judicial philosophy may
    
    reflect, to some degree, the philosophy of the appointing President --- not a
    
    surprising circumstance --- but to assume some sort of blind, mindless, knee-jerk
    
    response based on the politics of a judge’s appointer does us and the rule of law a
    
    grave injustice. More importantly it is just wrong.
    
           I would hope that a careful and thoughtful review of the opinions of my
    
    brothers and sisters would dispel any suggestion that their views on the important
    
    issues before us are anything but the result of days of careful study and thoughtful
    
    analysis --- because these opinions are nothing less. We have done our duty. I am
    
    proud to be associated with my judicial colleagues that have been called upon to
    
    discharge their respective constitutional obligations, albeit reluctantly --- both on
    
    this court and the many other state and federal courts involved. Indeed these recent
    
    events have been a civics lesson for some --- particularly the young; but they have
    
    also been a reminder that our nation’s system of governance has weathered the test
    
    of time and tumult; the old three-legged stool10 still stands erect and with sufficient
    
    strength to support the hopes and dreams of our nation’s citizens.
    
    
    
    
           10
            The three branches of our government, the Legislative, the Executive, and the Judicial
    (“The Third Branch”), have often been compared to the familiar early American three-legged
    stool.
    
                                                  67
           The revered and quotable jurist, Learned Hand, once observed: “The spirit of
    
    liberty is the spirit which is not too sure that it is right . . .”11 While not “right”
    
    about many things, I am confident that we have given these matters the attention
    
    they justly deserve and trust that, at least, we have laid the groundwork for an
    
    informed decision by the justices of the United States Supreme Court should they
    
    exercise their judgment to hear this case. It is my hope that they do. We have
    
    done our best so that they can do their best.
    
    
    
    
           11
            The corollary to that thought was expressed by the elder statesman from Florida,
    Congressman Claude Pepper: “One has the right to be wrong in a democracy.” Cong. Rec. May
    27, 1946.
    
                                                68
    DUBINA, Circuit Judge, dissenting, in which TJOFLAT and BIRCH, Circuit
    
    Judges, join:
    
           I agree with the majority’s disposition of the issues of abstention, res
    
    judicata, collateral estoppel, and mootness. I also join and concur fully in the
    
    dissenting opinions filed by Judges Tjoflat, Birch, and Carnes. I dissent from the
    
    disposition of the remaining issues discussed in the majority’s opinion.
    
    Specifically, I disagree with the notion that we cannot convert the preliminary
    
    injunction and reach the merits of this case. See Thornburgh v. American College
    
    of Obstetricians & Gynecologists, 
    467 U.S. 747
     (1986).
    
           As to the merits of this case, the legal principles set forth in the cases of
    
    Moore v. Ogilvie, 
    394 U.S. 814
     (1969), and Roe v. Alabama, 
    43 F.3d 574
     (11th
    
    Cir. 1995), govern. Based on these principles, I would reverse the judgment of the
    
    district court in this case.
    
    
    
    
                                               69
    CARNES, Circuit Judge, dissenting, in which TJOFLAT, BIRCH and DUBINA,
    
    Circuit Judges, join:
    
           I agree with the Court that the lawsuits in this case and in Touchston v.
    
    McDermott, No. 00-15985, are not barred by the Rooker-Feldman doctrine or by
    
    the doctrines of res judicata, collateral estoppel, or mootness, and that there is no
    
    basis for this Court to abstain.1 I disagree, however, with the Court’s conclusion
    
    that irreparable injury has not been shown in these two cases. My disagreement
    
    with that conclusion stems from my belief that the selective manual recounts in
    
    some of the Florida counties that use the punch card system of voting violate the
    
    equal protection rights of the voters in the other punch card system counties. The
    
    harm from that violation exists and will continue so long as the results of any of
    
    those selective manual recounts are included in Florida’s certified election results.
    
    Because the existence and nature of the constitutional violation is inextricably
    
    linked to the question of irreparable injury, I turn first to a discussion of the
    
    selective manual recounts in this case, and how those recounts violated the
    
    
    
           1
              I address the two cases jointly in this opinion, which is appropriate in view of the
    similarity of issues, substantial overlap of parties, cross reference in the briefs and oral argument
    in each case to the other, and the district court in Touchston’s incorporation by reference of the
    reasoning of the district court’s opinion in Siegel.
    
           In order to avoid duplication, I will adopt in my dissenting opinion in Touchston what I
    have said here.
    
                                                     70
    constitutional rights of the similarly situated voters who did not receive the benefit
    
    of them.
    
          Of course, not every election dispute implicates the Constitution and justifies
    
    federal court intervention, and “[g]enerally, federal courts do not involve
    
    themselves in ‘garden variety’ election disputes.” Roe v. Alabama, 
    43 F.3d 574
    ,
    
    580 (11th Cir. 1995) (Roe I) (quoting Curry v. Baker, 
    802 F.2d 1302
    , 1315 (11th
    
    Cir. 1986)). But this case is more than a garden variety election dispute. It
    
    concerns more than the validity of individual ballots or the administrative details of
    
    an election. This case involves part of a state’s election law designed in a way that
    
    permits or even encourages infringement of the federal constitutional rights of a
    
    large category of voters, and a claim that the law was actually applied in a way that
    
    violated those rights. Federal courts have the authority and duty to address and
    
    decide such claims. That is what the Supreme Court did in Moore v. Ogilvie, 
    394 U.S. 814
    , 
    89 S. Ct. 1493
     (1969) (striking down as unconstitutional part of Illinois’
    
    method for selecting Presidential electors). That is what we did in the Roe cases.
    
    See Roe I, 43 F.3d at 580 (affirming preliminary injunction against counting votes
    
    that state trial court had ordered to be counted); Roe v. Alabama, 
    52 F.3d 300
     (11th
    
    Cir. 1995) (Roe II) (same); Roe v. Alabama, 
    68 F.3d 404
     (11th Cir. 1995) (Roe
    
    III) (same as to permanent injunction). That is what we should do in this case.
    
    
                                              71
           The record in this case is not replete with factual detail, but there are
    
    sufficient undisputed facts to establish a constitutional violation based upon the
    
    selective manual recounts that were undertaken in only a few punch card counties
    
    and the resulting discriminatory treatment or weighting of the votes of similarly
    
    situated voters.2 For present purposes, I accept as fact everything represented as
    
    fact in the affidavits filed by the Democratic Party, which is the party that
    
    requested the selective manual recounts at issue in this case, and the chief party in
    
    interest on the defendants’ side, and will add to them only those facts which neither
    
    party disputes. Proceeding in that manner makes it appropriate to decide the merits
    
    and whether permanent relief should be granted in these two appeals from the
    
    denials of preliminary injunctions. See Thornburgh v. Am. Coll. of Obstetricians
    
    & Gynecologists, 
    476 U.S. 747
    , 755 - 57, 
    106 S. Ct. 2169
    , 2176 (1986), overruled
    
    on unrelated grounds, Planned Parenthood v. Casey, 
    505 U.S. 833
    , 
    112 S. Ct. 2791
    
    (1992). The Thornburgh decision establishes that a court of appeals may decide
    
    
           2
               The plaintiffs also complain about the manual recount that took place in one county,
    Volusia, which uses the optical scan or marksense system of voting. However, the evidence
    makes it abundantly clear that Volusia County was plagued with a host of problems in tabulating
    its vote, including outright equipment and software failures. There is no evidence that the manual
    recount conducted in Volusia County was done for any reason except to correct those failures
    and ensure that they did not taint the reported results. Nor is there any evidence in the record
    that any other county had an optical scan system that suffered from similar problems but for
    which no manual recount was ordered. The situation involving Volusia County is materially
    different from that involving the punch card system counties of Broward, Palm Beach, and
    Miami-Dade. Accordingly, I will not discuss Volusia County any further in this opinion.
    
                                                   72
    the final merits of a case in an appeal from the grant or denial of a preliminary
    
    injunction if “the facts are established or of no controlling relevance,” and it is not
    
    a situation “when there is no disagreement as to the law, but the probability of
    
    success on the merits depends on facts that are likely to be developed at trial.” Id.
    
    at 757 & n. 8, 106 S.Ct. at 2177 & n. 8. The facts that are established or
    
    undisputed in these two cases entitle the plaintiffs to relief for reasons I will
    
    explain, and thus all disputed or undeveloped facts are of “no controlling
    
    relevance.” 3
    
           Proceeding in this manner, the Florida Democratic Party’s factual position
    
    plus the undisputed facts are these. Twenty-four of Florida’s 67 counties use a
    
    vote system in which the voter’s preference is expressed by punching a stylus
    
    through a card that is later passed through a tabulating machine. See Siegel, Aff.
    
    of William F. Galvin, Appendix to Brief of Florida Democratic Party (“Fla. Dem.
    
    App.”) at tab 10; Chart A.4 There are different models of punch card tabulating
    
    
           3
              When a court of appeals decides the final legal merits of a case on an appeal from the
    denial of a preliminary injunction, it does not review merely for an abuse of discretion. Instead,
    its scope of review is plenary. See Thornburgh, at 757, 106 S.Ct. at 2176 (“The customary
    discretion accorded to a District Court’s ruling on a preliminary injunction yields to our plenary
    scope of review as to the applicable law.”).
           4
              One of the affidavits submitted to the district court by the Florida Democratic Party
    states that 26 Florida counties use punch card voting systems. See Siegel, Aff. of Jon M.
    Ausman, Appendix to Brief of Florida Democratic Party at tab 13. According to the affidavit,
    that information was obtained from the Florida Secretary of State’s Web Site. Id. We know
    now, however, based on official records provided by the Secretary of State, that only 
    24 Fla. 73
    machines, but all of them work by directing light at the punch card being fed
    
    through the machine and reading the beam that results from the light passing
    
    through the hole that has been punched in the card by the voter. See Siegel, Aff. of
    
    William F. Galvin, Fla. Dem. App. at tab 10. If the hole punched in the card is not
    
    clear of any chad, there is a possibility, perhaps a likelihood, that the tabulating
    
    machine will not count the vote. Id.
    
           The failure of the punch card system to count all of the intended votes is a
    
    problem inherent in that voting system. See, e.g., Siegel, Aff. of Ion V. Sancho,
    
    Fla. Dem. App. at tab 9; Siegel, Aff. of William F. Galvin, Fla. Dem. App. at tab
    
    10; Siegel, Aff. of Rebecca T. Mercuri, Fla. Dem. App. at tab 16. It is a serious
    
    problem that results in a significant number of intended votes not being counted;
    
    and those intended votes will remain uncounted unless there is a manual recount
    
    involving visual inspection of the punch cards by human beings. See Siegel, Aff.
    
    of Jackie Winchester, Fla. Dem. App. at tab 8; Siegel, Aff. of Ion V. Sancho, Fla.
    
    Dem. App. at tab 9; Siegel, Aff. of William F. Galvin, Fla. Dem. App. at tab 10;
    
    Siegel, Aff. of Jon Ausman, Fla. Dem. App. at tab 13; Siegel, Aff. of Rebecca T.
    
    Mercuri, Fla. Dem. App. at tab 16. While plaintiffs question whether human
    
    beings can accurately ascertain the intent of a voter by inspecting a punch card
    
    counties use punch card voting systems. See Chart A. Although the difference is not material to
    resolution of the legal issues, I will use the correct number, which is 24.
    
                                                  74
    with an indented, pregnant, swinging, or otherwise not fully removed chad, the
    
    theory of the selected manual recounts undertaken in this case is that it can be
    
    done, and that as a result intended votes which would otherwise have been
    
    disregarded can and will be counted in a manual recount.
    
          Indeed, the unwavering refrain of the Florida Democratic Party underlying
    
    its requests for manual recounts in 3 punch card counties, and throughout all of the
    
    state and federal litigation related to this case, has been that punch card systems
    
    necessarily and invariably undercount votes which can only be recaptured and
    
    considered by manual recounts. In justifying its request for manual recounts in the
    
    3 counties, the Party told the Florida Supreme Court in a related state court case
    
    that, “It is well established that machine tabulation of votes fail (sic) to capture
    
    votes cast by a large number of voters, particularly when the number of votes cast
    
    is substantial – almost six million in the case of Florida’s Presidential election.
    
    Machine tabulation of these votes, without some additional process for counting
    
    votes that the machines fail to tabulate, results in the disenfranchisement of
    
    countless voters.” Answer Brief of Petitioners/Appellants Al Gore, Jr. and Florida
    
    Democratic Party at 20, Palm Beach County Canvassing Bd. v. Harris, ___ So.2d
    
    ____ (filed in the Fla. Supreme Court Nov. 19, 2000) (Nos. SC00-2346, SC00-
    
    2348 & SC00-2349); see also id. at 15 (“Underlying the addition of a provision for
    
    
                                               75
    a manual recount is an understanding that the process is more accurate than
    
    machine counts, not less.”) (emphasis in original); id. at 16 (“[M]any studies
    
    indicate that machine counts of punch card ballots produce significant
    
    inaccuracies.”).
    
           In the briefs the Democratic Party filed in our court in these two cases, it has
    
    told us that:
    
                    The optical scanner voting system used by most Florida
                    counties provides good results, including a “non-vote”
                    percentage for the Presidency (where one would expect
                    “non-votes” to be very low) of only 0.40%. Punch card
                    voting, by contrast, which is in effect in the three larger
                    counties that have undertaken considerable manual recounts
                    ... is much less reliable, yielding an improbable “non-vote”
                    percentage for the Presidency of over 3%.
    
    Brief of Intervenor/Appellee Florida Democratic Party at 23-24, Touchston v.
    
    McDermott, No. 00-15985 (filed in the 11th Cir. Nov. 28, 2000); see also id. at 10
    
    (“Punch card ballots generate a consistently greater level of undervotes –
    
    approximately 3.2% – due to imperfect perforations and still-appended chads.”).5
    
           5
              The figures I have quoted from the Florida Democratic Party’s brief were drawn by the
    Party from the affidavit of Jon Ausman, which the Party filed in the district court in the Siegel
    case. See Siegel, Aff. of Jon Ausman, Fla. Dem. App. at tab 13. In that affidavit, which is dated
    November 12, 2000, Mr. Ausman states that those figures are based upon the best data he could
    obtain at that time. The data was from only 18 of Florida’s 67 counties – 11 punch card counties
    and 7 optical scan (or marksense) counties. Id. at paragraphs 6 - 7.
    
            We now have complete figures from all 67 Florida counties, because the Secretary of
    State as part of her official duties keeps election reports that counties are required by law to
    submit to her. The Florida Supreme Court takes judicial notice of the contents of records kept by
    
                                                   76
            The Democratic Party told the United States Supreme Court essentially the
    
    same thing: “Because of the high percentage of undervotes created by punch card
    
    voting systems, the vast majority of counties in Florida do not use them.” Brief of
    
    Respondents Al Gore, Jr., and Florida Democratic Party at 4 n.2, Bush v. Palm
    
    Beach County Canvassing Bd., No. 00-836 (filed in the United States Supreme
    
    Court Nov. 28, 2000).
    
           Summarizing its theory of the case, the Democratic Party has said: “the
    
    evidence in this case suggests that some Florida voters could potentially be
    
    disenfranchised because the automated systems utilized in some Florida counties
    
    
    
    
    the Secretary of State, see State ex rel. Glynn v McNayr, 
    133 So. 2d 312
    , 315 (Fla. 1961), and so
    may we, see generally Fed. R. Evid. 201; cf. Cash Inn of Dade, Inc. v. Metropolitan Dade
    County, 
    938 F.2d 1239
    , 1243 (11th Cir. 1991) (minutes of a county commission meeting) (“A
    district court may take judicial notice of public records within its files relating to the particular
    case before it or other related cases.”).
    
           The complete figures for all 24 punch card counties, which are contained in Chart C in
    the appendix to this opinion, show a combined 3.92 % “non-vote” or “no vote” rate in those
    counties. The complete figures for all 41 marksense or optical scan counties, which are
    contained in Chart F in the appendix to this opinion, show a combined 1.43% no vote rate in
    those counties. (The number of punch card counties added to the number of optical scan counties
    equals 65 instead of 67, because one county uses a lever machine system of voting and another
    uses paper ballots counted by hand.).
    
             The complete figures show us that the true difference between the no vote rates of the
    punch card and optical scan counties is 3.92 % minus 1.43%, or 2.49 %, and not the difference
    that Ausman’s incomplete figures show (3.2 % minus .40 %, or 2.8%). The complete figures
    still show a significant difference between optical scan and punch card counties considered as a
    whole, but the complete figures also show that in the optical scan counties the no vote rate is not
    .40 %, which the Florida Democratic Party’s brief tells us “is to be expected,” but instead is
    1.43%, or three times the Party’s “expected” rate.
    
                                                     77
    caused thousands of votes to go uncounted. The only means whereby those
    
    uncounted votes can be examined is to discern the intent Florida’s voters is (sic)
    
    through a manual recount auditing process.” Response of Intervenor/Appellee the
    
    Florida Democratic Party In Opposition to Appellants’ Emergency Motion for
    
    Injunction Pending Appeal at 7, Touchston, No. 00-15985 (filed in the 11th Cir.
    
    Nov. 16, 2000). In any punch card county where manual recounts are not
    
    undertaken, the Party says, “outright disenfranchisement” occurs. See id. at 40
    
    (“Each of the county standards employed [in the Palm Beach and Broward County
    
    manual recounts] was, thus, a vast improvement over the outright
    
    disenfranchisement that results from machine undercounts caused by hanging and
    
    dimpled chads.”).
    
          If the Florida Democratic Party’s theory is not valid, then the manual
    
    recounts it requested and any change in votes resulting from those manual recounts
    
    would amount to stuffing the ballot boxes in the selected counties with illegal or
    
    non-existent votes, and counting those bogus votes would be unconstitutional for
    
    that reason. See Baker v. Carr, 
    369 U.S. 186
    , 208, 
    82 S. Ct. 691
    , 705 (1962)
    
    (recognizing that the right to vote is infringed by false tally or by stuffing the ballot
    
    box); Roe I, 43 F.3d at 581. But, as I have explained, the Democratic Party insists
    
    that a manual recount actually results in the counting of intended votes that would
    
    
                                               78
    not be detected by machine, and it has put in the record numerous affidavits
    
    supporting that view. The Florida Supreme Court seems to have embraced the
    
    theory as well by interpreting “error in the vote tabulation” in Fla. Stat. §
    
    102.166(5) to include a discrepancy between a machine count and a sample manual
    
    recount in a punch card county. See generally Palm Beach County Canvassing Bd.
    
    v. Harris, ___ So.2d ___, 
    2000 WL 1725434
    , at *5-6 (Fla. Nov. 21, 2000),
    
    vacated, Bush v. Palm Beach County Canvassing Bd., 
    531 U.S.
    ___, ___ S. Ct.
    
    ___, No. 00-836 (Dec. 4, 2000) (per curiam). Because the state high court did so,
    
    and because the theory is a necessary premise of the manual recounts the Party
    
    requested in the selected counties, I accept as a fact for present purposes the
    
    proposition that manual recounts of punch card ballots will result in intended votes
    
    being counted that otherwise would not have been if the process had stopped with
    
    machine tabulation.
    
          If manual recounting had been conducted in all the counties using the punch
    
    card voting system so that all voters who were at risk of having their intended
    
    votes disregarded were protected to generally the same extent by the corrective
    
    process, there would be no federal constitutional violation, at least if we assume (as
    
    I will for purposes of this analysis) that the standards applied in the recount were
    
    accurate, consistent, and fair enough to satisfy due process. But manual recounts
    
    
                                              79
    did not occur in all of the punch card counties. Not by a long shot. Instead, the
    
    Florida Democratic Party requested and, in conjunction with state officials and
    
    using administrative processes sanctioned by state law, brought about a selective
    
    manual recount. The process which the Party insists corrects machine errors and
    
    ensures that the will of voters is ascertained, that voters are not disenfranchised by
    
    defective technology, was requested in only 3 of Florida’s 24 counties that suffer
    
    from the punch card malady, the 3 being Broward, Palm Beach, and Miami-Dade.
    
    No recount was requested or undertaken in the remaining 21 Florida punch card
    
    counties: Collier, Desoto, Dixie, Duval, Gilchrist, Glades, Hardee, Highlands,
    
    Hillsborough, Indian River, Jefferson, Lee, Madison, Marion, Nassau, Osceola,
    
    Pasco, Pinellas, Sarasota, Sumter, and Wakulla.
    
          The manual recounts have been completed in Broward and Palm Beach
    
    counties, and the resulting additional votes from Broward County have been added
    
    to the statewide totals. Whether part or all of any corrections brought about by the
    
    manual recounts in Palm Beach and Miami-Dade Counties will be added to the
    
    statewide totals as a result of other ongoing litigation in state court remains to be
    
    seen. Given the fluidity of events, I will assume for the remainder of this opinion
    
    that the manual recount results from all 3 of the selected counties will be added to
    
    the statewide totals. However, irrespective of what is decided in the state litigation
    
    
                                              80
    involving Palm Beach and Miami-Dade Counties, my conclusion remains the same
    
    because any difference in degree of selectivity between one, two, or three counties
    
    being manually recounted and the remainder of the 24 punch card counties not
    
    being recounted is immaterial under the applicable constitutional principles. The
    
    difference between one, two, or three manual recounts being conducted may affect
    
    the result of the election, but the Constitution forbids violations of voters’ equal
    
    protection rights even when those violations do not change the outcome of the
    
    election. See infra at 112-113.
    
          The voters who for whatever reason did not succeed in dislodging the chad
    
    next to their choice for President had their votes counted in Broward County and
    
    may eventually have their votes counted in the 2 other selected counties, but the
    
    voters in all of the other 21 punch card counties who applied the same pressure on
    
    the stylus and brought about the same effect, or lack of intended effect, on the chad
    
    connected with their choice for President did not have their votes counted. Under
    
    the Florida Democratic Party’s theory of punch card undercounting, thousands of
    
    similarly situated Florida citizens who intended to vote for President were thwarted
    
    in their efforts by defective technology, perhaps combined with a bit of personal
    
    carelessness, and whether their intended votes count has been made to depend
    
    solely upon the county in which they live. If they live in Broward County (or
    
    
                                              81
    maybe in Palm Beach or Miami-Dade Counties, too), their votes count; but if they
    
    live in any of the other punch card counties, they do not. The one and only
    
    difference is in which of the 24 punch card counties they live.
    
          “A citizen’s right to a vote free of arbitrary impairment by state action has
    
    been judicially recognized as a right secured by the Constitution, when such
    
    impairment resulted from dilution from a false tally, or by a refusal to count votes
    
    from arbitrarily selected precincts, or by a stuffing of the ballot box.” Baker v.
    
    Carr, 
    369 U.S. 186
    , 208, 
    82 S. Ct. 691
    , 705 (1962) (internal citations omitted);
    
    accord Reynolds v. Sims, 
    377 U.S. 533
    , 555, 
    84 S. Ct. 1362
    , 1378 (1964) (“And
    
    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.”) (footnote omitted).
    
          For at least a quarter of a century, it has been established that “[d]iluting the
    
    weight of votes because of place of residence impairs basic constitutional rights
    
    under the Fourteenth Amendment just as much as invidious discriminations based
    
    upon factors such as race, or economic status.” Reynolds, 377 at 566, 84 S.Ct. at
    
    1384 (internal citations omitted). As the Supreme Court explained in Reynolds,
    
    “Overweighting and overvaluation of the votes of those living here has the certain
    
    effect of dilution and undervaluation of the votes of those living there.” Id. at 563,
    
    
                                              82
    84 S.Ct. at 1382. The Constitution prohibits states from weighting votes
    
    differently based on the voters’ place of residence. The Supreme Court enforced
    
    this prohibition in Gray v. Sanders, 
    372 U.S. 368
    , 
    83 S. Ct. 801
     (1963), when it
    
    struck down the county unit system the Georgia Democratic Party used in it
    
    primary elections. Under that complicated system every citizen got one vote, but in
    
    the final analysis some votes mattered more than others – they counted more –
    
    and the difference was based upon the counties in which the voter lived. Id. at
    
    370-72, 83 S.Ct. at 803-04. The Court held that the Constitution prohibits such
    
    selectivity. Id. at 380-82, 835 S.Ct. at 808-09.
    
          Another variation on selective weighting of franchise by county of residence
    
    was presented to the Court in Moore v. Ogilvie, 
    394 U.S. 814
    , 
    89 S. Ct. 1493
    
    (1969). That case involved an Illinois law that required a candidate seeking a place
    
    on the statewide ballot to present a nominating petition containing the signatures of
    
    at least 25,000 voters. That basic requirement was not a constitutional problem,
    
    but a proviso that also required the nominating petition to include the signatures of
    
    200 or more voters from each of at least 50 counties was a problem. Id. at 815, 84
    
    S.Ct. at 1494. Illinois adopted that proviso in order to ensure that any candidate
    
    who got on its statewide ballot had at least minimal state-wide support, because
    
    “[a]n elected official on the state level represents all the people in the state,” and
    
    
                                               83
    “[s]uch representatives should be aware of and concerned with the problems of the
    
    whole state and not just certain portions thereof.” Moore v. Shapiro, 
    293 F. Supp. 411
    , 414 (N.D. Ill. 1968) (three-judge court), rev’d sub nom. Moore v. Ogilvie,
    
    
    394 U.S. 814
    , 
    893 S. Ct. 1493
     (1969). The geographic-spread proviso in Illinois’
    
    nominating petition requirement was unquestionably “an expression of rational
    
    state policy,” Moore v. Shapiro, 293 F. Supp. at 414, but that did not save it from
    
    being struck down.
    
          The problem with the Illinois proviso, the Supreme Court explained in
    
    Moore, was that it discriminated against voters residing in the more populous
    
    counties of the state in favor of those residing in the less populous counties. The
    
    constitutional math went like this:
    
                 Under this Illinois law the electorate in 49 of the counties
                 which contain 93.4 % of the registered voters may not form
                 a new political party and place its candidates on the ballot.
                 Yet 25,000 of the remaining 6.6 % of registered voters
                 properly distributed among the 53 remaining counties may
                 form a new party to elect candidates to office. ... It,
                 therefore, lacks the equality to which the exercise of
                 political rights is entitled under the Fourteenth Amendment.
    
    Id. at 819, 89 S.Ct. at 1496. Although the selective weighting of the franchise
    
    accomplished by the proviso involved in Moore was more sophisticated and less
    
    direct, and as a result less obvious, than the laws struck down in Reynolds v. Sims,
    
    
    
                                              84
    it still failed to “pass muster against the charges of discrimination or of
    
    abridgement of the right to vote.” Moore, 394 U.S. at 818, 89 S.Ct. at 1496.
    
           Given the fertility of the human mind when focused upon political
    
    objectives, denial or debasement of the franchise can be accomplished in myriad
    
    ways. But whatever the method or means used to count, weigh, or value some
    
    votes differently from others, however sophisticated or indirect the device, the
    
    Constitution is up to the task. See Reynolds, 377 U.S. at 563, 84 S.Ct. at 1382
    
    (“One must be ever aware that the Constitution forbids ‘sophisticated as well as
    
    simpleminded modes of discrimination.’”) (citation omitted). Because of the
    
    central importance of the right to vote in our system of representative democracy,
    
    “any alleged infringement of the right of citizens to vote must be carefully and
    
    meticulously scrutinized,” id. at 562, 84 S.Ct. at 1381, and that is the duty of the
    
    courts.6
    
    
           6
               The Attorney General of Florida argues to us that in judging the selective manual
    recounts at issue in this case under the Equal Protection Clause we ought not apply strict scrutiny
    but, instead, should apply a lesser standard, and he cites Burdick v. Takushi, 
    504 U.S. 428
    , 
    112 S. Ct. 2059
     (1992), and Fulani v. Krivanek, 
    973 F.2d 1539
     (11th Cir. 1992), for that proposition.
    See Supplemental Brief of Appellee Attorney General of Florida at 4-7, Siegel, No. 00-15981
    (filed in the 11th Cir. Nov. 28, 2000). However, his argument, and those citations, miss the
    point. Burdick and Fulani are ballot-access cases, not cases involving different treatment or
    weight given to votes cast. In Reynolds, which did involve different treatment of votes cast, the
    Supreme Court said that the proper standard was careful and meticulous scrutiny. 377 U.S. at
    561-62, 84 S.Ct. at 1381.
    
           The question is actually less one of the degree of scrutiny than it is a straightforward
    inquiry into whether the votes of otherwise similarly situated voters are being treated or
    
                                                    85
            Of course, many cases dealing with sophisticated debasements of the right
    
    to vote have political overtones, and that is no less true here than usual. The
    
    Supreme Court was presented in Reynolds with the argument that it ought to stay
    
    its hand and keep out of the political thickets involved in that case. To that
    
    suggestion the Court responded: “Our answer is this: a denial of constitutionally
    
    protected rights demands judicial protection; our oath and our office require no less
    
    of us.” Id. at 566, 84 S.Ct. at 1384. That is a good answer.
    
           In order to apply the principles of these decisions to the facts of the cases
    
    before us, I turn now to a closer examination of the selection of the 3 counties in
    
    which a manual recount was requested.7 Acting pursuant to Fla. Stat. §
    
    weighted differently because of where they live in the state. If that occurs, then there is a
    violation of the equal protection rights of the voter even if there is a rational purpose for the
    discrimination, as there was in Moore v. Ogilvie.
           7
              There has been some discussion by the parties about full or partial manual recounts that
    were undertaken in at least 2 (Gadsden and Seminole) and possibly 3 (Polk) counties that use the
    marksense or optical scan voting system. The parties agree that those manual recounts were not
    requested by any candidate or political party, but were instead initiated by local canvassing
    boards during the period for the statewide automatic machine recount undertaken pursuant to
    Florida law. The circumstances relating to those recounts and any problem that may have led to
    them are unknown in large part because neither of these two cases contains a claim or
    counterclaim concerning those recounts, and the canvassing boards involved are not parties to
    either lawsuit.
    
            Those recounts do not affect my analysis because they occurred in optical scan counties,
    were not conducted at the request of a political party or candidate, and may have been
    undertaken as a result of local problems, as was the case with Volusia County, which also uses
    the optical scan system. See supra n.2. In any event, even if there were unconstitutional
    selectivity in the choice of those 3 optical scan counties, that would not lessen the violation of
    the Equal Protection Clause that occurred when the Florida Democratic Party selected 3 of the
    24 punch card counties for manual recounts.
    
                                                      86
    102.166(4), the Democratic Party filed written requests for manual recounts in
    
    Broward, Palm Beach, and Miami-Dade Counties, and no other punch card
    
    counties. Siegel, Fla. Dem. App. at tabs 1, 3 & 5. There were two common
    
    grounds stated in each of those 3 written requests. One ground given in all 3
    
    requests was that the punch card system with its chads created a risk that intended
    
    votes had not been counted (“undervotes”) or actually did result in undervotes, a
    
    problem the requests said could be corrected by a manual recount with its attendant
    
    visual inspection of the cards. The other stated ground in all 3 requests was that
    
    the election results in Florida showed that the race for President was very close. No
    
    other grounds were given in the manual recount requests.8 See id.
    
    
           8
              There is one exception to that statement. The request for a manual recount in Palm
    Beach County contained another ground. It was stated in the Palm Beach recount request that
    the particular configuration of the ballot in that county (the so-called “butterfly ballot”) had
    confused Palm Beach’s voters, producing two bad results: a substantial number of votes were
    disregarded because more than one choice was punched in the presidential race; and some
    voters may have inadvertently voted for someone other than their true choice. See Siegel, Fla.
    Dem. App. at tab 1.
    
            That problem cannot explain or justify why the Democratic Party selected the 3 punch
    card counties that it did. First, neither Broward or Miami-Dade Counties used a butterfly ballot,
    and there was no voter confusion reported in the request for manual recounts filed in either of
    those counties. Second, the purpose of a manual recount in a punch card county is to find
    intended votes that the tabulating machine did not pick up because a chad was not sufficiently
    punched out. Any ballot in which the tabulating machine picked up two votes cast for the same
    office would be one in which the voter had cleanly punched out not one but two chads, or the
    machine would not have read it as two votes. Instead of helping cure that “overvote” problem, a
    manual recount searching for additional votes in the form of dimpled, pregnant, or swinging
    chads not picked up by the tabulating machine could only aggravate the problem. That is
    precisely the concern that the Horowitz intervenors, a group of Palm Beach voters who
    supported the Democratic Party’s nominee in the election, expressed in the district court. See
    
                                                    87
           The problem with machine tabulating of punch card ballots is common to
    
    counties that use the punch card system. The Democratic Party has never
    
    contended to the contrary, but instead has insisted that the problem is inherent in
    
    punch card technology. For that reason, the existence of a punch card voting
    
    system cannot be a basis for differentiating the 3 counties that were selected from
    
    the 21 that were not. And, of course, the fact that the statewide totals in the race
    
    for President were extremely close was a common fact, and therefore could have
    
    served as grounds for a recount in any of the other 21 punch card counties. There is
    
    nothing in the reasons that the Party gave for requesting a manual recount in the 3
    
    selected counties that explains, let alone justifies, the discrimination in favor of
    
    those 3 punch card counties and against the other 21. In order to give the Party the
    
    benefit of the doubt and to consider all the possibilities, I will now look elsewhere
    
    for an explanation.
    
           Charts A - F, which are attached as appendices to this opinion, contain
    
    population and other demographic data, as well as relevant vote data on a county-
    
    
    
    Siegel, Hearing Trans. at 108.
    
           As to the Palm Beach voters who allegedly inadvertently voted for the wrong candidate
    because they were confused, a visual inspection of a punch card ballot showing a hole clear
    enough for the tabulating machine to have picked it up could not reveal whether at the time the
    hole was punched the person doing the punching thought it would count as a vote for another
    candidate.
    
                                                   88
    by-county basis.9 That vote data represents things as they stood on November 9,
    
    2000, after the automatic machine recount required under Fla. Stat. § 102.141(4)
    
    had been conducted. That is the relevant vote data for our purposes, because it
    
    reflects the facts as of the time the Florida Democratic Party filed its manual
    
    recount requests in Broward, Miami-Dade, and Palm Beach Counties on November
    
    9, 2000.
    
            Chart A shows that the 3 counties selected by the Democratic Party for a
    
    manual recount share these characteristics: 1) they are the 3 most populous
    
    counties in the State of Florida; 2) they are the 3 counties in which the Party’s
    
    nominee, Vice-President Al Gore, received the largest number of votes; and 3) in
    
    each of them he received substantially more votes than his opponent, Governor
    
    Bush.
    
            The theory underlying the manual recount, as I have already explained, has
    
    always been that the punch card system of voting necessarily and inevitably results
    
    in some intended votes not being picked up by the tabulating machine. The Florida
    
    Democratic Party has never suggested that its selection of counties for manual
    
    recounts was based upon any county-by-county variation in either the way the
    
    punch card system operates or in its rate of accuracy. Instead, the consistent
    
            9
             We can take judicial notice of that vote data, which is from the records the Florida
    Secretary of State keeps as required by law and pursuant to her official duties. See supra n.5.
    
                                                    89
    position of the Party, which is generally supported by the affidavits it submitted in
    
    the district court, is that every time the punch card system is used there will be
    
    intended votes that are not counted by the tabulating machine. See supra at 72-77.
    
    Given the stated justification that the manual recounts were necessary in Broward,
    
    Miami-Dade, and Palm Beach Counties because those counties used the punch
    
    card system, the more relevant focus is on the population and voting data from all
    
    of Florida’s 24 punch card counties. Chart B shows that data. Of course, because
    
    the 24 punch card counties are a subset of all of Florida’s 67 counties, the
    
    characteristics that distinguish the 3 counties chosen by the Party on a statewide
    
    basis also distinguish them in relation to the other 21 punch card counties: those 3
    
    are the most populous and vote-rich of all the punch-card counties, and in each of
    
    them the Party’s nominee received substantially more votes than his principal
    
    opponent.
    
           Not only that, but we also see from the data contained in Chart B another
    
    conspicuous fact. The 3 counties the Florida Democratic Party selected for manual
    
    recounts are 3 of the 4 punch-card counties that gave its nominee the highest
    
    percentage of the vote cast among the two opposing Presidential candidates. Those
    
    percentages are as follows: Broward (68.55%); Palm Beach (63.81%); and Miami-
    
    Dade (53.18%). No other punch card county gave the Party’s nominee a greater
    
    
                                              90
    percentage of its vote than Broward and Palm Beach Counties, and only one punch
    
    card county gave the Party’s nominee a greater percentage of its vote than Miami-
    
    Dade County did. That lone exception is sparsely populated Jefferson County
    
    which, although favoring the Party’s nominee with 55.10 % of its vote, cast a total
    
    of only 5,519 votes for the nominees of both major parties (compared, for example,
    
    to the 618,335 votes cast for them in Miami-Dade County). Because so few votes
    
    were cast in Jefferson County, that county offered little prospect for finding
    
    enough uncounted votes to make a difference. In effect, the voters of Jefferson
    
    County were too few in number to matter in view of the Party’s objective, which
    
    was to change the election result that had been reported to that date.
    
          Given the theory of the recount – finding intended votes that were not
    
    counted by the punch card system – the most relevant data of all would be the
    
    percentage of votes that were intended but not counted. We do not have that, but
    
    neither did the Florida Democratic Party when it selected the punch card counties
    
    in which to request recounts. We do have the “no vote” data, which shows the
    
    difference between the total number of voters who cast a ballot and the total votes
    
    cast for any Presidential candidate. In other words, the no vote data shows the
    
    number of ballots in which no vote for President was counted either because the
    
    tabulating machine did not pick up from the punch card any vote for President, or
    
    
                                              91
    because it picked up two or more votes for President on the same card resulting in
    
    no vote for President being counted.
    
          Chart C ranks the punch card counties by percentage of no votes in the
    
    Presidential race. If Palm Beach, Miami-Dade, and Broward Counties had been
    
    selected for manual recounts because of problems resulting in no vote for
    
    President being picked up by the tabulating machines, those 3 counties would have
    
    the highest no vote rates. They do not. Chart C shows that there are 7 punch card
    
    counties with a higher percentage of no votes in the Presidential race than Palm
    
    Beach County, yet none of them was selected for manual recounts. The chart also
    
    shows that 10 punch card counties have a higher percentage of no votes than
    
    Miami-Dade County, but none of them was selected for a manual recount. And as
    
    for Broward County, there were 17 punch card counties with a higher no vote rate
    
    that were not selected for manual recounts. In fact, Broward is tied for the fourth
    
    smallest percentage of no votes for President among all of the 24 punch card
    
    counties, yet the Florida Democratic Party still selected it for a manual recount.
    
          One of the many affidavits the Florida Democratic Party submitted in the
    
    district court stated that “two groups of citizens, the elderly and minorities, are
    
    more prone to have problems on this system than the rest of the population.”
    
    Siegel, Aff. of Ion V. Sancho, Fla. Dem. App. at tab 9. Perhaps that opinion rests
    
    
                                               92
    upon derogatory stereotypes that federal courts should not countenance. Even
    
    assuming, however, that there is some factual basis for that opinion and that we
    
    should consider the possibility, the problems that any group, including the elderly
    
    and minorities, have with punch card voting should be captured to some extent in
    
    the no vote data contained in Chart C. But as we have seen, the Party’s selection of
    
    the 3 counties cannot be justified on the basis of that data.
    
          Moreover, Chart D, which ranks the punch card counties by percentage of
    
    population over the age of 65, shows that 7 of those counties that were not selected
    
    for manual recounts have a greater percentage of their population in that age
    
    category than Palm Beach County does; 11 not selected for manual recounts have a
    
    greater percentage in that age category than Broward County does; and 13 of them
    
    have a greater percentage in that age category than Miami-Dade County does. The
    
    Florida Democratic Party’s selection of punch card counties for manual recounts
    
    could not have been based upon the percentage of elderly in each county’s
    
    population.
    
          As for “minorities” having more problems with punch card voting, it is
    
    unclear exactly what the Florida Democratic Party’s affiant meant by “minorities.”
    
    Chart E shows that if he meant to include both blacks and Hispanics in that
    
    grouping, Miami-Dade County’s population does have a higher percentage of
    
    
                                              93
    minorities than any other punch card county. But the chart also shows that 6 punch
    
    card counties that were not selected for manual recounts have a higher percentage
    
    of minorities in their populations than Broward County, which was selected. And it
    
    shows that 8 punch card counties that were not selected for manual recounts have a
    
    higher percentage of minorities in their population than Palm Beach County which
    
    was also selected.
    
          So, the facts we have about the Florida Democratic Party’s selection of the
    
    counties in which a manual recount would be undertaken in order to ensure that
    
    voters were not disenfranchised by systemic problems with punch card technology
    
    or by carelessness, are these. The selection was not based upon the rate of punch
    
    card error – the no vote rate – nor was it based upon the relative percentage of
    
    senior citizens or minorities in each county’s population. Instead, the defining
    
    characteristic of the 3 punch card counties chosen to undertake a manual recount is
    
    that they are the 3 most populous counties in the state, all of which gave the Party’s
    
    Presidential nominee a higher percentage of the vote than his opponent.
    
          Of course, none of this is surprising. We expect political parties to act in
    
    their own best political interest, and the 3 most populous counties that had voted
    
    for its nominee presented the Florida Democratic Party with its best prospects for
    
    turning the election around. It would not have served the Party’s goal of electing
    
    
                                             94
    its nominee for President for it to have sought the intended but unsuccessful votes
    
    in those punch card counties that went for the other party’s nominee, Governor
    
    George W. Bush. The voters in 17 of the 24 punch card counties favored Governor
    
    Bush. See Chart B. Examples include Hillsborough County (51.6 % of its 350,317
    
    Bush/Gore votes went for Bush) and Collier County (66.89 % of its 90,351
    
    Bush/Gore votes went for Bush). Id. Making sure that every intended vote was
    
    counted in those 17 counties that favored Bush over Gore, over two-thirds of the
    
    total number of punch card counties, was not the way for the Florida Democratic
    
    Party to get its candidate elected.
    
          Nor would it have been efficient for the Florida Democratic Party to expend
    
    its manual recount efforts in vote-poor counties like Jefferson, whose voters did
    
    express a pronounced preference for the Party’s nominee. Loyal Democrats though
    
    they may be, the citizens of Jefferson County suffered from the misfortune of
    
    living in a county whose population was so small that the total votes it cast for the
    
    two principal candidates for President were only 1.31 % of those cast in Palm
    
    Beach County, only .98 % of those cast in Broward County, and only .89 % of
    
    those cast in Miami-Dade County. That is too few to have mattered when it came
    
    to the Party’s goal of changing the results of the statewide election.
    
    
    
    
                                              95
          There may have been another factor at work in the Florida Democratic
    
    Party’s selection of the 3 most populous counties as the ones in which to request a
    
    manual recount. State law encourages, if not requires, manual recount choices to
    
    favor counties with greater vote totals over those with lesser vote totals. Under the
    
    statute, once a sample recount of at least 3 precincts and 1 percent of the votes cast
    
    in the county has been conducted, the county canvassing board can manually
    
    recount all the ballots only “[i]f the manual recount [sample] indicates an error in
    
    the vote tabulation which could affect the outcome of the election.” Fla. Stat. §
    
    102.166(5). Of course, the larger the number of votes in a county the greater the
    
    likelihood that a complete manual recount in that county alone will affect the
    
    election, and under § 102.166(5) that appears to be the measuring rod for
    
    undertaking a complete manual recount. Because the number of votes obviously
    
    varies in relation to a county’s population, there is a greater likelihood that a
    
    complete manual recount in a more populous county will change the election
    
    result. Since the possibility of a different statewide result appears to be a
    
    prerequisite for a complete manual recount in a county, the statute encourages and,
    
    in some cases – where the pre-manual recount statewide difference in votes is
    
    larger than the votes that could be picked up by a full manual recount in a less
    
    populated county – may require discrimination against less-populous counties.
    
    
                                               96
           Consider the present case. After the statewide machine recount mandated by
    
    Florida law, the statewide difference between the two Presidential candidates was
    
    300 votes. It would be far easier for the Florida Democratic Party to show that that
    
    margin could be erased by a manual recount in heavily populated Miami-Dade
    
    County, which had reported a total of 618,335 votes for the two candidates, than
    
    it would be for the Party to show the same thing in sparsely populated Jefferson
    
    County, where only 5,519 votes were cast for the two candidates. In fact,
    
    depending upon the initial margin of victory, it could well be impossible to get a
    
    complete manual recount in many of the punch card counties, regardless of which
    
    candidate the voters in that county favored.10
    
           It may be that the Florida Democratic Party would have chosen the 3 punch
    
    card counties it did even without the requirement in Fla. Stat. § 102.166(5) that the
    
    sample recount conducted in each county show that the outcome of the election
    
    
    
           10
               The discrimination that results from making a manual recount dependent upon whether
    the recount difference in the county could change the statewide result can also be illustrated by a
    fairly simple hypothetical. Suppose the statewide difference was Bush over Gore by 300 votes,
    and a sample manual recount showed that a full recount in Miami-Dade would probably result in
    a net gain for Gore of 400 votes. Suppose further that in each of the 17 punch card counties that
    voted for Bush over Gore a sample manual recount showed that conducting a full manual recount
    would result in net gains for Bush of 25 to 100 votes in each of those 17 counties for a combined
    total net gain of 900 votes for Bush. As Fla. Stat. § 102.166(5) is written, it appears that
    complete manual recounts could not occur in those 17 less-populated counties, because the
    projected change in none of them, standing alone, would be enough to alter the statewide result,
    even though the combined total of their projected changes would have swung the election result
    back to Bush.
    
                                                    97
    could be changed by continuing the recount in that county. Somewhat to its credit,
    
    the Party has never denied (at least not in federal court during litigation of these
    
    two cases) that it chose for manual recounts the 3 counties that it did, and not
    
    others, because those counties are populous, i.e., vote rich, and their voters had
    
    expressed a preference for its Presidential nominee. In our Court alone, the Party
    
    filed over 180 pages of briefs and used more than 40 minutes of oral argument time
    
    to explain its position. Never once in its briefs or in its oral arguments did the
    
    Party suggest that its selection of the 3 punch card counties out of 24 for a manual
    
    recount was based on anything other than partisan self-interest. That the
    
    Democratic Party predictably acted in its own best interests in using the state law
    
    recount machinery to ensure that intended votes which would otherwise be
    
    disregarded would only be counted in counties favoring its candidate does not end
    
    the inquiry. There is the matter of the Constitution.
    
          When a political party uses state machinery and exercises prerogatives it is
    
    given under state law to influence the counting or alter the effect of votes, it is a
    
    state actor subject to the same constitutional constraints that protect citizens from
    
    the state and its officials. See Terry v. Adams, 
    345 U.S. 461
    , 481, 
    73 S. Ct. 809
    ,
    
    819 (1953) (white primary case) (“[A]ny part of the machinery for choosing
    
    officials becomes subject to the Constitution’s restraints.”) (citations and
    
    
                                               98
    quotations omitted). The manual recount provision contained in Fla. Stat. §
    
    102.166(4), and the selectivity it encourages or permits political parties to exercise
    
    in bringing about recounts, is an integral part of the election process in Florida, as
    
    we have seen in recent days, and the Supreme Court has held that “[a]ll procedures
    
    used by a State as an integral part of the election process must pass muster against
    
    the charges of discrimination or of abridgement of the right to vote.” Moore v.
    
    Ogilvie, 
    394 U.S. 814
    , 818, 
    89 S. Ct. 1493
    , 1495 - 96 (1969).
    
          The Florida manual recount statute gives government officials some
    
    discretion over whether to conduct a manual recount, see Fla. Stat. § 102.166(4)(c)
    
    (“The county canvassing board may authorize a manual recount”), and government
    
    officials are intimately involved in the actual recount procedure itself. Those two
    
    facts reinforce the conclusion that the Florida Democratic Party’s selection of the
    
    counties in which manual recounts could occur is state action subject to
    
    constitutional scrutiny. See Dennis v. Sparks, 
    449 U.S. 24
    , 27 - 28, 
    101 S. Ct. 183
    ,
    
    186 (1980) (“[T]o act ‘under color of state law’ for § 1983 purposes does not
    
    require that the defendant be an officer of the State. It is enough that he is a willful
    
    participant in joint action with the State or its agents. Private persons, jointly
    
    engaged with state officials in the challenged action are acting . . . ‘under color’ of
    
    law for purposes of § 1983 actions.”) (citation omitted); Gray v. Sanders, 
    372 U.S. 99
    368, 374 - 75, 
    83 S. Ct. 801
    , 805 (1963) (“We agree with that result and conclude
    
    that state regulation of this preliminary phase of the election process makes it state
    
    action.”) (citation omitted). What the State of Florida and its officials cannot
    
    constitutionally do alone, the State and the Florida Democratic Party acting jointly
    
    cannot do either.
    
           If Florida enacted a statute that provided a manual recount procedure for
    
    correcting the undervote caused by the use of the punch card voting system, but
    
    provided that the corrective procedure could be invoked only in the 3 most
    
    populous counties of the state, no one would question that such a provision would
    
    be unconstitutional.11 And it would be unconstitutional no matter how rational the
    
    purpose of the statute. Suppose, for example, that the state thought it was more
    
    efficient to conduct manual recounts in the really big punch card counties, and not
    
    worth the effort to do it in any little, sparsely populated, or vote-poor punch card
    
    counties. I hope that no judge on this Court would suggest such a law would be
    
    constitutionally permissible.
    
    
           11
               The hypothetical statute is not far removed from the statute that Florida does have. As
    I have previously pointed out, the statute appears to permit a full manual recount only if the
    sample recount indicates that a full recount in that county could affect the election result. Fla.
    Stat. § 102.166(5) (the county canvassing board can manually recount all the ballots only “[i]f
    the manual recount [sample] indicates an error in the vote tabulation which could affect the
    outcome of the election”). Because of that apparent requirement, the statute encourages in every
    case, and may require in some cases, that the manual recounts be requested in more populous,
    vote-rich counties.
    
                                                   100
          The reason we would or should be unanimous in holding such a law
    
    unconstitutional is that states cannot treat votes differently depending upon the
    
    counties in which the voters live. The constitutional wrong in that hypothetical
    
    case and in the present case is the mirror image of the one in Moore v. Ogilvie,
    
    
    394 U.S. 814
    , 
    89 S. Ct. 1493
     (1969). Just as the Constitution forbids a state from
    
    counting or weighting votes less because they come from more populated
    
    counties, it also forbids a state from counting or weighting votes less because they
    
    come from more sparsely populated counties. Yet that is precisely what the
    
    manual recounts in the 3 selected Florida counties does.
    
          Recall that the central fact underlying the theory behind the manual recounts
    
    in Broward, Palm Beach, and Miami-Dade Counties is that the punch card system
    
    of voting necessarily and inevitably results in some intended votes not being
    
    counted unless there is a manual recount. See supra at 72-77. With the selective
    
    manual recounts that the Florida Democratic Party and government officials have
    
    jointly brought about, voters are treated differently depending upon where they
    
    live. There are two sets of punch card voters whose efforts to vote are not picked
    
    up by the tabulating machines. One set, the favored one, lives in Broward, Palm
    
    Beach, and Miami-Dade Counties. The second set has the misfortune to live in the
    
    other 21 punch card counties. The votes of the first set count; the votes of the
    
    
                                             101
    second set do not. Two voters using the same effort to press an identical stylus
    
    against a punch card and bringing about the identical effect on a chad next to a
    
    Presidential candidate are treated differently. See O’Brien v. Skinner, 
    414 U.S. 524
    , 529, 
    94 S. Ct. 740
    , 743 (1974) (holding unconstitutional a statute under which
    
    two citizens “sitting side by side in the same cell may receive different treatment as
    
    to voting rights”). One vote is counted, the other not. The sole reason is that the
    
    Florida Democratic Party, acting with the authority given to it by the state, and
    
    pursuing its own political interests, chose to have one vote counted and the other
    
    not.
    
           The matter was aptly put in a letter Florida Attorney General Robert
    
    Butterworth wrote to the Chair of the Palm Beach County Canvassing Board on
    
    November 14, 2000. The letter referred to the “extremely serious” legal issues that
    
    would arise if manual recounts were conducted in some counties but not others.
    
    He said that “a two-tier system for reporting votes would result,” and:
    
                 A two-tier system would have the effect of treating voters
                 differently, depending upon what county they voted in.
                 A voter in a county where a manual count was conducted
                 would benefit from having a better chance of having his
                 or her vote actually counted than a voter in a county
                 where a hand count was halted.
    
    Touchston, Hearing, Ex., Trans. at 9-16, 44-45 & 48. That is exactly the situation
    
    resulting from the Florida Democratic Party and Florida’s state or local officials
    
                                             102
    acting jointly to manually recount votes in only 3 of the 24 punch card counties. In
    
    that letter, Attorney General Butterworth went on to say that he felt “a duty to warn
    
    that if the final certified total for balloting in the State of Florida includes figures
    
    generated from this two-tier system of differing behavior by official canvassing
    
    boards, the State will incur a legal jeopardy, under both the U.S. and state
    
    constitutions.” That “legal jeopardy” under the United States Constitution is what
    
    this litigation is about.12
    
    
    
    
           12
               Butterworth, who is the co-chair of the Florida campaign for the Democratic nominee
    for President, see Touchston, Hearing Trans. at 10, wrote the letter and an attached advisory
    opinion in order to persuade Palm Beach County to manually recount its punch card ballots. The
    letter referred to the possibility that Seminole County, which did not use the punch card system,
    had manually recounted its ballots. The Florida Democratic Party represented to us, however,
    that the optical scan or marksense system of voting, which is what Seminole County uses, see
    Chart A, “provides good results” and a no-vote percentage that one would expect to occur
    naturally, see Brief of Intervenor/Appellee Florida Democratic Party at 23-24, Touchston v.
    McDermott, No. 00-15985 (filed in the 11th Cir. Nov. 28, 2000). The Party says that system is
    not plagued by the same problems as the punch card system used in Palm Beach and the 23 other
    counties.
    
             If manually recounting in one county that does not have a punch card system results in
    “legal jeopardy” because voters are being treated differently in that county from voters in punch
    card counties, then conducting manual recounts in only a few of the punch card counties also
    treats similarly situated voters in the punch card counties differently, and results in “legal
    jeopardy.”
    
           The Butterworth letter does speak of the different treatment being a result of “differing
    behavior of official canvassing boards,” but it was the Florida Democratic Party that chose
    which county canvassing boards could undertake a manual recount pursuant to Fla. Stat. §
    102.166(4). And, as I have already explained, Supreme Court precedent establishes that in
    choosing those counties, the Party was engaged in state action, and could not do what the
    Constitution forbids government officials from doing.
    
                                                   103
          If we accept what the Florida Democratic Party has told us, we can even put
    
    an estimate on the number of affected voters who are being discriminated against
    
    in the manual recount: the number who tried to vote for a Presidential candidate
    
    but were prevented from doing so by the punch card system and for whom no
    
    effort is being made to ascertain their true intent. The Party says that the optical
    
    scanner system used in most Florida counties provides good results and the
    
    undervote in counties using that system is only .40 %, which the Party says is
    
    about what we should expect to occur naturally, i.e., by virtue of voter intent, in a
    
    Presidential election in Florida. Brief of Intervenor/Appellee Florida Democratic
    
    Party at 23-24, Touchston v. McDermott, No. 00-15985 (filed in the 11th Cir. Nov.
    
    28, 2000). Yet the undervote in punch card counties, the Party says, is
    
    approximately 3.2%. Id. at 10. Thus, the difference in the undervote rate caused
    
    by the punch card system, if we accept the Party’s figures, is approximately 2.8% .
    
    The total number of ballots cast in the 21 punch card counties in which no manual
    
    recount is being conducted is 2,013,666. See Chart C.
    
          Applying the Party-supplied machine-caused-undervote rate of 2.8% to that
    
    figure gives us an estimated 56,382 voters in the non-selected punch card counties
    
    who tried to cast their votes but were thwarted by chad problems of one kind or
    
    
    
    
                                              104
    another.13 It is those more than 56,000 voters whom the Florida Democratic Party,
    
    in conjunction with the state, is discriminating against in its selective manual
    
    recount. Unlike their similarly situated fellow citizens in the 3 most populous
    
    counties, no effort is being made to ascertain their true intent – thereby re-
    
    enfranchising those whose attempts to vote were thwarted by defects in the
    
    technology – by manually inspecting their punch card ballots. As the Supreme
    
    Court held in Reynolds v. Sims, “[w]eighting the votes of citizens differently, by
    
    any method or means, merely because of where they happen to reside, hardly
    
    seems justifiable. One must be ever aware that the Constitution forbids
    
    ‘sophisticated as well as simpleminded modes of discrimination.’ ” 377 U.S. at
    
    563, 84 S.Ct. at 1382 (citations omitted).
    
           The same analysis applies and the same conclusion is reached , of course, if
    
    one views the selection factor as being not the population of the counties but
    
    instead the number or percentage of votes cast for the Florida Democratic Party’s
    
           13
               As I have already pointed out, the Florida Democratic Party’s estimated 2.8 %
    undervote difference between the optical scan and punch card counties was based upon
    incomplete data, and we now know from complete data that the difference in “no vote” rates is
    actually 2.49 %. See supra n.5. However, if the results from Broward, Miami-Dade, and Palm
    Beach Counties are excluded, then the rate of no vote in the remaining 21 punch card counties
    drops from 3.92% to 3.62%. See supra n.5 & Chart C. When the marksense or optical scan no
    vote rate of 1.43% is subtracted, see Chart F, the resulting difference in no vote rates between the
    remaining punch card counties and the optical scan counties is 2.19%. Applying that rate to the
    number of ballots cast in the remaining 21 punch card counties indicates that if the Party’s
    central theory is correct, there are 44,099 voters in those 21 counties whose intended vote for
    President was not counted.
    
                                                    105
    nominee in the counties (both factors coincided here). Just as a state, and a
    
    political party acting in conjunction with the state, cannot discriminate among
    
    voters based upon the population of their counties, so also they may not
    
    discriminate among voters based upon political opinions and beliefs as expressed
    
    by the candidates for whom those voters cast their ballots. Shifting the focus of the
    
    selection from population to political preference simply adds the weight of the First
    
    Amendment to that of the Equal Protection Clause in prohibiting the selectivity.
    
    Either way there is unconstitutional discrimination against the voters in the punch
    
    card counties not selected for manual recounts. “Their right to vote is simply not
    
    the same right to vote as that of those living in a favored part of the State.”
    
    Reynolds, 377 U.S. at 563, 84 S.Ct. at 1382.
    
          In the face of the constitutional command that votes be treated and weighted
    
    the same regardless of where the voter lives within a state, various of the
    
    defendants respond with several arguments. One thing they argue is that states are
    
    due deference in the way they run elections and, in light of Article II, § 1, cl. 2 of
    
    the Constitution, and 3 U.S.C. § 5, states are due special deference when it comes
    
    to the selection of electors. But states are due no deference if they go about
    
    selecting electors in a way that violates specific provisions of the Constitution,
    
    including the Equal Protection Clause. The Supreme Court has expressly held that
    
    
                                              106
    the power that Article II gives the states to select electors cannot be exercised in a
    
    way that violates the Equal Protection Clause. See Williams v. Rhodes, 
    393 U.S. 23
    , 29, 
    89 S. Ct. 5
    , 9 - 10 (1968) (“Nor can it be thought that the power to select
    
    electors could be exercised in such a way as to violate express constitutional
    
    commands that specifically bar States from passing certain kinds of laws. ... We
    
    therefore hold that no State can pass a law regulating elections that violates the
    
    Fourteenth Amendment’s command that ‘No State shall ... deny to any person ...
    
    the equal protection of the laws.’”); accord, Anderson v. Celebreezze, 
    460 U.S. 780
    , 795 n.18, 
    103 S. Ct. 1564
    , 1573 n.18 (1983). After all, Moore v. Ogilvie,
    
    
    394 U.S. 814
    , 
    89 S. Ct. 1493
     (1969), applied the one person, one vote doctrine to
    
    strike down an Illinois statute in a case involving the selection of electors. The
    
    issue is not about Article II or 3 U.S.C. § 5; it is about whether the selective
    
    manual recounts in question violate the Constitution. Because they do, nothing in
    
    Article II and certainly nothing in any federal statute insulate that unconstitutional
    
    action from remedy.14
    
           14
               Some of the defendants seek cover from Roudebush v. Hartke, 
    405 U.S. 15
    , 
    92 S. Ct. 804
     (1972), but it does not provide any for them. That decision did not address the equal
    protection rights of voters, nor did it involve the discriminatory application of election laws in
    general or of recount laws in particular. It decided only the narrow issue of whether a recount of
    the ballots cast in an election for the United States Senate was a valid exercise of a state’s power
    to prescribe the times, places, and manner of holding elections pursuant to Article I, § 4, or was
    instead a forbidden infringement on the power that Article I, § 5 gives the Senate to judge the
    qualifications of its members.
    
    
                                                    107
           Getting closer to the merits issue, the defendants also argue that Florida law
    
    permits any political party with a candidate on the ballot, or any candidate whose
    
    name appears on the ballot, to file a written request with the county canvassing
    
    board for a manual recount. See Fla. Stat. § 102.166(4)(a). There is no equal
    
    protection problem, they say, because the Republican Party or its candidate could
    
    have requested that manual recounts be conducted in each of the punch card
    
    counties. This argument is not at all persuasive.
    
           As I have already explained, although the Republican Party or its candidate
    
    could have requested a manual recount in any of Florida’s counties, the statute
    
    permits full manual recounts in only those counties in which a sample manual
    
    recount indicates “an error in the vote tabulation which could affect the outcome of
    
    the election.” Fla. Stat. § 102.166(5). Some of the punch card counties are so
    
    sparsely populated, so vote poor, that even if a manual recount had been requested
    
    and a sample recount conducted as provided in Fla. Stat. § 102.166(4)(d), the result
    
    of that sample recount would not have indicated that a full manual recount in the
    
            The opinion in Roudebush does observe that Indiana, along with many other states, had
    found that the availability of a recount was necessary to guard against irregularity and errors in
    vote tabulation, and says that “[a] recount is an integral part of the Indiana electoral process and
    is within the ambit of the broad powers delegated to the States by Art. I, § 4.” Id. at 25, 92 S.Ct.
    at 810 - 11. True enough, but a recount is not any more integral to the electoral process than the
    actual election itself, and as we have already seen, Article II, § 4 does not permit states to
    conduct elections in a way that violates a specific constitutional provision such as the Equal
    Protection Clause. It follows that states cannot conduct recounts in a way that violates that
    clause, either.
    
                                                    108
    county could affect the outcome of the election. So, even if the Republican Party or
    
    its candidate had requested manual recounts in every punch card county, the
    
    process would still have ended up treating some punch card voters differently
    
    based upon the counties in which they lived. The Constitution forbids that.
    
          There is a another, more fundamental flaw in the argument that treating
    
    punch card voters differently depending upon the county of their residence is
    
    permissible because the Republican Party or its candidate could have, but did not,
    
    prevent that difference in treatment. The constitutional rights involved are those of
    
    the voters in the other punch card counties. It is their votes and their constitutional
    
    rights at stake. The voters whose constitutional rights are being violated are not
    
    permitted to request a manual recount. See Fla. Stat. § 102.166(4)(a). There is no
    
    loophole in the Constitution that permits what would otherwise be an
    
    unconstitutional action to occur simply because a third party could have, but did
    
    not, prevent it from occurring. Therefore, the fact that both parties were permitted
    
    to request manual recounts does not shield the selective recounts from
    
    constitutional attack.
    
          Another argument the defendants put forward responds to the criticism of
    
    the previous one. Florida Attorney General Butterworth, who was so concerned in
    
    his November 14, 2000 letter about the “legal jeopardy” that his state would be in
    
    
                                              109
    if there was a “two-tier” system in which manual recounts occurred in some
    
    counties but not others, a fortnight later filed a brief in this Court telling us there is
    
    nothing to worry about after all. According to Attorney General Butterworth’s
    
    latest position on the subject, manual recounts can be requested or granted under
    
    Fla. Stat. 102.166(4)(a) - (c) in as selective or discriminatory a way as the human
    
    mind can imagine without running afoul of the Constitution. The reason, he says,
    
    is that although a voter cannot request a manual recount at that stage of the election
    
    process, a voter can later file an election contest and try to get the court to conduct
    
    a manual recount as part of that contest.
    
          That argument is unpersuasive. Even assuming that Florida law provides a
    
    mechanism for individual voters to request manual recounts as part of an election
    
    contest, the practical and legal burdens imposed upon an individual who seeks to
    
    contest an election are entirely different, and far more burdensome, than those that
    
    a party or candidate must meet in order to institute an election contest. A request
    
    filed by a political party or candidate before the results are certified merely has to
    
    set out grounds for a manual recount, and the county canvassing board can grant it.
    
    Fla. Stat. § 102.166(4). An election contest, on the other hand, cannot be filed
    
    until after the last county canvassing board certifies results, see Fla. Stat. §
    
    102.168(2), and once it does, a presumption kicks in and weighs against granting
    
    
                                                110
    any relief in the contest. Under Florida law, “elected officials are presumed to
    
    perform their duties in a proper and lawful manner in the absence of a sufficient
    
    showing to the contrary,” and “there is a presumption that returns certified by
    
    election officials are presumed to be correct.” Boardman v. Esteva, 
    323 So. 2d 259
    ,
    
    268 (Fla. 1976) (citation omitted).
    
            Besides, there is the problem of time. Election contests cannot be instituted
    
    until “after midnight of the date the last county canvassing board empowered to
    
    canvass the returns certifies the results of the election being contested.” Fla. Stat. §
    
    102.168 (2). That might be enough time in ordinary circumstances to file a contest,
    
    have it litigated through the trial and appellate stages of the state court system, win
    
    the right to a manual recount, have any issues arising in that manual recount be
    
    litigated to conclusion, and have the new result accepted. Maybe, but the
    
    circumstances giving rise to these cases are not ordinary. To begin with, the
    
    effective deadline in this case is not some time next year as it might be with most
    
    elections, but instead is December 12, and the drop-dead deadline is December 18,
    
    2000. Not only that, but the Florida Supreme Court extended the time for the last
    
    county canvassing board to certify its results to the Secretary of State from 7 days
    
    after the election, the time specified in Fla. Stat. §§ 102.111 and 102.112, until
    
    November 26, 2000, which is 19 days after the election. See Harris, ___ So.2d at
    
    
                                              111
    ___, 
    2000 WL 1725434
    , at *16, vacated, Bush v. Palm Beach County Canvassing
    
    Bd., 
    531 U.S.
    ___, ___ S. Ct. ___, 
    2000 WL 1769093
     (Dec. 4, 2000) (per curiam).
    
    That cut 12 days out of the period that would otherwise have been provided for
    
    conducting an election contest through to conclusion.
    
          We know from the inability of Miami-Dade and Palm Beach Counties to
    
    finish the actual manual recounts in even the extended time the Florida Supreme
    
    Court allotted them, that it would have been impossible as a practical matter for a
    
    voter in, for example, Hillsborough County, a punch card county in which 369,467
    
    ballots were cast in the Presidential election, see Chart C, to file an election
    
    contest demanding a manual recount in that county, try the case before the trial
    
    court, succeed on appeal in time for the canvassing board to conduct and complete
    
    a full manual recount, and then have any issues arising in that recount decided. An
    
    election contest under Florida law is not a practical remedy for voters who have
    
    been discriminated against in the Florida Democratic Party’s selection of punch
    
    card counties in which to request a manual recount.
    
          Even if there were enough time for such manual recounts after the extended
    
    period for the county canvassing boards to report, there is another serious obstacle
    
    to a voter using the Florida election contest procedures to secure a manual recount
    
    in that voter’s county. Except in cases of outright fraud, bribery, or other
    
    
                                              112
    corruption, or the ineligibility for office of the successful candidate, Florida law
    
    requires that anyone filing an election contest show that correction of the problem
    
    complained about would change the results of the election. See Fla. Stat. §
    
    102.168(3)(c) (“Receipt of a number of illegal votes or rejection of a number of
    
    legal votes sufficient to change or place in doubt the result of the election.”) &
    
    (3)(e) (“Any other cause or allegation which, if sustained, would show that a
    
    person other than the successful candidate was the person duly nominated or
    
    elected to the office.”). If the voter cannot show that the constitutional violation he
    
    suffered changed the result of the election, he has no grounds for contesting the
    
    election under the Florida election statute.
    
          While Florida’s interest in bottom line election results is certainly expedient,
    
    the Constitution demands more than expediency. It is concerned with values other
    
    than the outcome of elections. To say that it is sufficient to remedy only those
    
    constitutional violations that matter to the political parties and their candidates is to
    
    say the rights of voters themselves do not matter. Can anyone seriously suggest
    
    that the Reynolds v. Sims, Gray v. Sanders, and Moore v. Ogilvie doctrines apply
    
    only when election results would be changed? When the Supreme Court in
    
    Reynolds said, “[t]o the extent that a citizen’s right to vote is debased, he is that
    
    much less a citizen,” 377 U.S. at 567, 84 S.Ct at 1384, the Court did not add
    
    
                                              113
    “unless it makes no difference in the election results.” When the Court said that
    
    “the basic principle of representative government remains, and must remain,
    
    unchanged – the weight of a citizen’s vote cannot be made to depend on where he
    
    lives,” id., surely the Court did not mean for that basic principle to be inapplicable
    
    except where it was outcome determinative for a candidate.
    
          In Moore there was “absolutely no indication in the record that the
    
    appellants could not, if they had made the effort, have easily satisfied Illinois’ 50-
    
    county, 200-signature requirement,” see 394 U.S. at 820 - 21, 89 S. Ct. at
    
    1497(Stewart, J., dissenting). In other words, there was absolutely no indication
    
    that the differential treatment of citizens based upon the counties in which they
    
    lived affected whether any would-be candidate could get on the ballot.
    
    Nonetheless, the Supreme Court did not hesitate to strike down the discrimination
    
    among voters, explaining that “[t]he idea that one group can be granted greater
    
    voting strength than another is hostile to the one man, one vote basis of our
    
    representative government.” Id. at 819, 89 S.Ct. at 1496. The one person, one vote
    
    principle is not so fickle as to depend upon the closeness of an election.
    
          One last argument relating to the merits which is put forward by several of
    
    the defendants is that there is no constitutional violation in selective manual
    
    recounts based upon county of residence, because there are variations among the
    
    
                                              114
    counties in election systems and different systems give rise to different error rates.
    
    In other words, unless the Constitution mandates that every county use the same
    
    voting system, it logically cannot prohibit selective correction of error rates in
    
    counties that use the same system. But why not? Why are differences in the
    
    number of vote errors that occur as a result of local variations in choice of vote
    
    systems before an election the constitutional equivalent of selective correction of
    
    errors based upon county of residence after the election?
    
          There is no reason to believe that any county would attempt to choose for
    
    itself a voting system with a high error rate in order to disadvantage its citizens
    
    compared to those of other counties. There is every reason to believe that political
    
    parties or candidates will selectively choose the counties in which to initiate the
    
    process of manual recounts based upon how those counties voted and their
    
    population. The intent behind the two actions is different. To understand the
    
    importance of that difference, consider this hypothetical. Suppose a state
    
    legislature mandated the type of voting systems to be used in each county, and
    
    deliberately favored urban counties with low-error systems that would keep down
    
    the undervote, while sticking rural counties with high-error systems that would
    
    increase the undervote in those counties thereby reducing their influence in
    
    statewide elections. Maybe the legislature, dominated by members from the more
    
    
                                              115
    populous counties, just wanted to keep the country folks in their place. Is there
    
    any doubt that such legislation would be unconstitutional under Reynolds and
    
    related cases? It would be unconstitutional even though the discriminatory choice
    
    occurred on the front end, before the election, and even though it involved
    
    variations in the vote systems used in different counties.
    
          How then can it be constitutionally permissible to make a materially similar,
    
    discriminatory choice on the back end after the election: to favor the voters of
    
    more populous counties who went for one candidate with a process that
    
    ameliorates their undervote, while not applying that process to ameliorate the same
    
    or worse undervote problems in less populous counties that went for the other
    
    candidate? The answer is that it is not constitutionally permissible to discriminate
    
    in favor of the voters of Broward, Palm Beach, and Miami-Dade, or any
    
    combination of those counties, and against the voters in the other 21 punch card
    
    counties when it comes to a post-election remedy of the undervote problem caused
    
    by the voting system technology.
    
          The Florida Supreme Court reminded us that: “Courts must not lose sight of
    
    the fundamental purpose of election laws: The laws are intended to facilitate and
    
    safeguard the right of each voter to express his or her will in the context of our
    
    representative democracy.” Harris, ___ So.2d at ____, 
    2000 WL 1725434
    , at *13
    
    
                                             116
    (footnote omitted). But we also must not lose sight of the constitutional guarantee
    
    of equal protection, which prohibits states from selectively facilitating and
    
    safeguarding the rights of voters based upon where they live in the state. Florida’s
    
    election laws, as applied in this case, run afoul of that prohibition.
    
          Finally, the defendants contend that we need not even decide the merits of
    
    the constitutional claims in this case because the plaintiffs have not suffered an
    
    irreparable injury. They base that assertion on two premises. First, the defendants
    
    maintain that it is inappropriate at this juncture to decide whether permanent
    
    injunctive relief should be issued. I disagree for the reasons I have already stated.
    
    See supra at 71-72, discussing Thornburgh v. Am. Coll. of Obstetricians &
    
    Gynecologists, 
    476 U.S. 747
    , 755-57, 
    106 S. Ct. 2169
    , 2176 - 77 (1986). Second,
    
    the defendants maintain that there is no equal protection violation unless and until
    
    the outcome of the election is altered by the inclusion of the manually recounted
    
    ballots in Florida’s certified results. But, as I have already explained, the
    
    constitutional harm is inflicted when the ballots of similarly situated voters are
    
    counted and weighted differently, and that harm exists regardless of the outcome of
    
    the election.
    
          The standard for a permanent injunction is essentially the same as for a
    
    preliminary injunction except that the plaintiff must show actual success on the
    
    
                                              117
    merits instead of a likelihood of success. Amoco Prod. Co. v. Village of Gambell,
    
    
    480 U.S. 531
    , 546 n.12, 
    107 S. Ct. 1396
    , 1404 n.12 (1987). In addition to
    
    succeeding on the merits, a plaintiff must “demonstrate the presence of two
    
    elements: continuing irreparable injury if the injunction does not issue, and the lack
    
    of an adequate remedy at law.” Newman v. State of Ala., 
    683 F.2d 1312
    , 1319
    
    (11th Cir. 1982). Explaining the distinction between “irreparable injury” and
    
    “adequate remedy at law,” our predecessor circuit said:
    
                 [T]he essential prerequisite to a permanent injunction is the
                 unavailability of an adequate remedy at law. Irreparable injury is,
                 however, one basis, and probably the major one, for showing the
                 inadequacy of any legal remedy. . . . Often times the concepts of
                 "irreparable injury" and "no adequate remedy at law" are
                 indistinguishable. . . . "[T]he irreparable injury rubric is intended to
                 describe the quality or severity of the harm necessary to trigger
                 equitable intervention. In contrast, the inadequate remedy test looks
                 to the possibilities of alternative modes of relief, however serious the
                 initial injury.”
    
    Lewis v. S. S. Baune, 
    534 F.2d 1115
    , 1124 (5th Cir. 1976) (citations omitted).
    
          Here, I believe that the plaintiffs in these two cases have succeeded on the
    
    merits by establishing that the disparate treatment of similarly situated voters
    
    violates the Equal Protection Clause. That constitutional injury to their right to
    
    vote is irreparable, since it “cannot be undone through monetary remedies.”
    
    Cunnigham v. Adams, 
    808 F.2d 815
    , 821 (11th Cir. 1987), both because of the
    
    unquantifiable nature of the right to vote as well as its fundamental importance in
    
                                             118
    our system of representative democracy. See Reynolds v. Sims, 
    377 U.S. 533
    ,
    
    562, 
    84 S. Ct. 1362
    , 1381(1964) (the right to vote is "a fundamental political right,
    
    because [it is] preservative of all rights'") (citation and quotations omitted). See
    
    also Northeastern Fla. Chapter of the Assoc. of Gen. Contractors v. City of
    
    Jacksonville, 
    896 F.2d 1283
    , 1285 (11th Cir. 1990) (discussing cases in which this
    
    Court has recognized that an on-going violation of the First Amendment or privacy
    
    rights constitutes irreparable injury, and stating that “[t]he rationale behind these
    
    decisions was that chilled free speech and invasions of privacy, because of their
    
    intangible nature, could not be compensated by monetary damages; in other words,
    
    plaintiffs could not be made whole”).
    
          Not surprisingly, there is no suggestion by the defendants that there is an
    
    adequate remedy at law to address the voting-rights injury presented in this case.
    
    See Dillard v. Crenshaw County, 
    640 F. Supp. 1347
    , 1363 (M.D. Ala. 1986)
    
    (“Given the fundamental nature of the right to vote, monetary remedies would
    
    obviously be inadequate in this case; it is simply not possible to pay someone for
    
    having been denied a right of this importance.”). There is an irreparable injury to
    
    the right to vote for which there is no adequate remedy at law. Accordingly,
    
    granting the requested injunctive relief is the only appropriate remedy.
    
    
    
    
                                              119
                                                     Appendices
    
                                                     CHART A
    
                                      All Counties Ranked by Population
                                                                                Total Bush/   Gore
    County         Population1   Vote System2   Bush Vote3         Gore Vote4   Gore Vote5    Percentage6
    
    Miami-Dade     2175634       punch          289533             328802       618335        53.18%
    Broward        1535468       punch          177323             386561       563884        68.55%
    Palm Beach     1049420       punch          152951             269732       422683        63.81%
    Hillsborough   940484        punch          180760             169557       350317        48.40%
    Pinellas       878499        punch          184823             200629       385452        52.05%
    Orange         817206        marksense      134517             140220       274737        51.04%
    Duval          738483        punch          152098             107864       259962        41.49%
    Brevard        470365        marksense      115185             97318        212503        45.80%
    Polk           457347        marksense      90295              75200        165495        45.44%
    Volusia        425601        marksense      82357              97304        179661        54.16%
    Lee            400542        punch          106141             73560        179701        40.93%
    Seminole       357390        marksense      75677              59174        134851        43.88%
    Pasco          330704        punch          68582              69564        138146        50.36%
    Sarasota       306546        punch          83100              72853        155953        46.71%
    Escambia       282432        marksense      73017              40943        113960        35.93%
    Marion         245975        punch          55141              44665        99806         44.75%
    Manatee        243531        marksense      57952              49177        107129        45.90%
    Leon           215926        marksense      39062              61427        100489        61.13%
    Lake           209812        marksense      50010              36571        86581         42.24%
    Collier        207029        punch          60433              29918        90351         33.11%
    Alachua        198484        marksense      34124              47365        81489         58.12%
    St. Lucie      181850        marksense      34705              41559        76264         54.49%
    Okaloosa       170049        marksense      52093              16948        69041         24.55%
    Osceola        150596        punch          26212              28181        54393         51.81%
    Bay            147958        marksense      38637              18850        57487         32.79%
    Clay           141353        marksense      41736              14632        56368         25.96%
    Charlotte      136992        marksense      35426              29645        65071         45.56%
    Hernando       128482        marksense      30646              32644        63290         51.58%
    Santa Rosa     120952        marksense      36274              12802        49076         26.09%
    St. Johns      119685        marksense      39546              19502        59048         33.03%
    Martin         118117        lever          33970              26620        60590         43.93%
    Citrus         116111        marksense      29766              25525        55291         46.16%
    Indian River   100253        punch          28635              19768        48403         40.84%
    Monroe         79941         marksense      16059              16483        32542         50.65%
    Highlands      74795         punch          20206              14167        34373         41.22%
    Putnam         70215         marksense      13447              12102        25549         47.37%
    Nassau         56811         punch          16280              6879         23159         29.70%
    Columbia       53738         marksense      10964              7047         18011         39.13%
    Flagler        49110         marksense      12613              13897        26510         52.42%
    Jackson        44549         marksense      9138               6868         16006         42.91%
    Gadsden        44077         marksense      4767               9735         14502         67.13%
    Sumter         42754         punch          12127              9637         21764         44.28%
    Walton         38124         marksense      12182              5642         17824         31.65%
    Suwanee        32972         marksense      8006               4075         12081         33.73%
    Levy           32386         marksense      6858               5398         12256         44.04%
    Okeechobee     32386         marksense      5057               4588         9645          47.57%
    Hendry         29463         marksense      4747               3240         7987          40.57%
    Bradford       24872         marksense      5414               3075         8489          36.22%
    
                                                             120
    Desoto        24636           punch              4256                3320              7576                  43.82%
    Baker         21181           marksense          5610                2392              8002                  29.89%
    Hardee        21017           punch              3765                2339              6104                  38.32%
    Washington    20614           marksense          4994                2798              7792                  35.91%
    Wakulla       19179           punch              4512                3838              8350                  45.96%
    Taylor        19049           marksense          4056                2649              6705                  39.51%
    Holmes        18761           marksense          5011                2177              7188                  30.29%
    Madison       17919           punch              3038                3014              6052                  49.80%
    Gilchrist     14056           punch              3300                1910              5210                  36.66%
    Gulf          13562           marksense          3550                2397              5947                  40.31%
    Jefferson     13090           punch              2478                3041              5519                  55.10%
    Dixie         12919           punch              2697                1826              4523                  40.37%
    Hamilton      12785           marksense          2146                1722              3868                  44.52%
    Union         12720           hand count         2332                1407              3739                  37.63%
    Calhoun       12436           marksense          2873                2155              5028                  42.86%
    Franklin      9978            marksense          2454                2046              4500                  45.47%
    Glades        8693            punch              1841                1442              3283                  43.92%
    Liberty       6703            marksense          1317                1017              2334                  43.57%
    Lafayette     6477            marksense          1670                789               2459                  32.09%
    Total         15111244                           2910492             2910192           5820684               50.00%
    
    
    
    
    1.      1999 Population Estimates, Population Estimates Program, Population Div., U.S. Census Bureau,
            http://www.census.gov/population/estimates/county/co-99-1/99C1_12.txt
    
    2.      "Certified Voting Systems Used in Florida, Table of Methods (by system, by county),"
             provided by Sec. of State from Official Records in Response to Request of Court, Nov. 30, 2000.
    
    3.      Harris', Roberts', and Crawford's Response to Emergency Motion for Injunction Pending Appeal and to Expedite,
            Exhibit A; "2000 General Election Results, Unofficial (Recount Results 11/14/2000)," provided by Sec. of State from
            Official Records in Response to Request of Court, Nov. 30, 2000.
    
    4.      Id.
    
    5.      Combination of "Bush Vote" and "Gore Vote" Totals for Each County
    
    6.      "Gore Vote" Total Divided by "Total Bush/Gore Vote" for Each County
    
    
    
    
                                                                   121
                                                      CHART B
    
                               Punch Card Counties Ranked by Population
    County             Population1      Bush Vote2       Gore Vote3        Total Bush/      Gore
                                                                           Gore Vote4       Percentage5
    
    Miami-Dade          2175634         289533            328802            618335          53.18%
    Broward             1535468         177323            386561            563884          68.55%
    Palm Beach          1049420         152951            269732            422683          63.81%
    Hillsborough        940484          180760            169557            350317          48.40%
    Pinellas            878499          184823            200629            385452          52.05%
    Duval               738483          152098            107864            259962          41.49%
    Lee                 400542          106141            73560             179701          40.93%
    Pasco               330704          68582             69564             138146          50.36%
    Marion              245975          55141             44665             99806           44.75%
    Collier             207029          60433             29918             90351           33.11%
    Sarasota            306546          83100             72853             155953          46.71%
    Osceola             150596          26212             28181             54393           51.81%
    Indian River        100253          28635             19768             48403           40.84%
    Highlands           74795           20206             14167             34373           41.22%
    Nassau              56811           16280             6879              23159           29.70%
    Sumter              42754           12127             9637              21764           44.28%
    Desoto              24636           4256              3320              7576            43.82%
    Hardee              21017           3765              2339              6104            38.32%
    Wakulla             19179           4512              3838              8350            45.96%
    Madison             17919           3038              3014              6052            49.80%
    Gilchrist           14056           3300              1910              5210            36.66%
    Jefferson           13090           2478              3041              5519            55.10%
    St. Johns           306546          39546             19502             59048           33.03%
    Dixie               12919           2697              1826              4523            40.37%
    Glades              8693            1841              1442              3283            43.92%
    Total               9365502         1640232           1853067           3493299         53.05%
    
    
    1.   1999 Population Estimates, Population Estimates Program, Population Div.,
         U.S. Census Bureau, 
    2.   Harris', Roberts', and Crawford's Response to Emergency Motion for Injunction Pending Appeal and to
         Expedite, Exhibit A; "2000 General Election Results, Unofficial (Recount Results 11/14/2000)," provided by
         Sec. of State from Official Records in Response to Request of Court, Nov. 30, 2000.
    3.   Id.
    4.    Combination of "Bush Vote" and "Gore Vote" Totals for Each County
    5.   "Gore Vote" Total Divided by "Total Bush/Gore Vote" for Each County
    
    
    
    
                                                            122
                                               CHART C
                             Punch Card Counties by Percentage of "No Vote"
    
                   Ballots          Presidential         No              Percent         Gore
    County         Cast1            Votes Counted2       Votes3          No Votes4       Share5
    
    Glades         3722             3365                 357             9.59%           43.92%
    Duval          291626           264636               26990           9.26%           41.49%
    Jefferson      6215             5643                 572             9.20%           55.10%
    Desoto         8512             7811                 701             8.24%           43.82%
    Madison        6642             6162                 480             7.23%           49.80%
    Nassau         25387            23581                1806            7.11%           29.70%
    Dixie          4998             4666                 332             6.64%           40.37%
    Palm Beach     462588           433186               29402           6.36%           63.81%
    Hardee         6645             6233                 412             6.20%           38.32%
    Gilchrist      5688             5395                 293             5.15%           36.66%
    Wakulla        9017             8587                 430             4.77%           45.96%
    Miami-Dade     654044           625443               28601           4.37%           53.18%
    Indian River   51559            49622                1937            3.76%           40.84%
    Sumter         23032            22261                771             3.35%           44.28%
    Collier        95325            92141                3184            3.34%           33.11%
    Osceola        57341            55658                1683            2.94%           51.81%
    Marion         106001           102956               3045            2.87%           44.75%
    Highlands      36158            35149                1009            2.79%           41.22%
    Pasco          146648           142731               3917            2.67%           50.36%
    Broward        588007           573396               14611           2.48%           68.55%
    Hillsborough   369467           360295               9172            2.48%           48.40%
    Lee            188978           184377               4601            2.43%           40.93%
    Pinellas       406956           398469               8487            2.09%           52.05%
    Sarasota       163749           160942               2807            1.71%           46.71%
    Total          3718305          3572705              145600          3.92%           53.05%
    
    
    1. "Voter Turnout (November 15, 2000)," provided by the Sec. of State from Official Records in
       Response to Request of Court, November, 30, 2000.
    2. Id.
    3. Id.
    4. Id.
    5. "Gore Vote" Total Divided by "Total Bush/Gore Vote" for Each County, based on figures from
       Harris', Roberts', and Crawford's Response to Emergency Motion for Injunction Pending Appeal and to
       Expedite, Exhibit A; "2000 General Election Results, Unofficial (Recount Results 11/14/2000),"
       provided by Sec. of State from Official Records in Response to Request of Court, Nov. 30, 2000.
    
    
    
    
                                                        123
                                             CHART D
                          Punch Card Counties by Percentage of Citizens 65+
    
                                         Population    Percent              Gore
    County             Population1       65+2          65+3                 Share4
    
    Highlands          74795             27042         36.15%               41.22%
    Sarasota           306546            98225         32.04%               46.71%
    Indian River       100253            28851         28.78%               40.84%
    Pasco              330704            87190         26.36%               50.36%
    Collier            207029            52999         25.60%               33.11%
    Lee                400542            102530        25.60%               40.93%
    Marion             245975            62122         25.26%               44.75%
    Palm Beach         1049420           253796        24.18%               63.81%
    Pinellas           878499            203070        23.12%               52.05%
    Desoto             24636             4970          20.17%               43.82%
    Glades             8693              1687          19.41%               43.92%
    Sumter             42754             7873          18.41%               44.28%
    Broward            1535468           258033        16.80%               68.55%
    Dixie12919         2137              16.54%        40.37%
    Hardee             21017             3245          15.44%               38.32%
    Miami-Dade         2175634           310642        14.28%               53.18%
    Madison            17919             2458          13.72%               49.80%
    Jefferson          13090             1783          13.62%               55.10%
    Gilchrist          14056             1894          13.47%               36.66%
    Osceola            150596            20265         13.46%               51.81%
    Nassau             56811             7492          13.19%               29.70%
    Hillsborough       940484            119047        12.66%               48.40%
    Wakulla            19179             2380          12.41%               45.96%
    Duval              738483            77976         10.56%               41.49%
    Total              9365502           1737707       18.55%               53.05%
    
    
    
    
    1    1999 Population Estimates, Population Estimates Program, Population Div.,
         U.S. Census Bureau, 
    
    3.   "Population 65+" Divided by "Population"
    
    4.   "Gore Vote" Total Divided by "Total Bush/Gore Vote" for Each County, based on figures from
         Harris', Roberts', and Crawford's Response to Emergency Motion for Injunction Pending Appeal and
         to Expedite, Exhibit A; "2000 General Election Results, Unofficial (Recount Results 11/14/2000),"
         provided by Sec. of State from Official Records in Reponse to Request of Court, Nov. 30, 2000.
    
    
    
    
                                                        124
                                                  CHART E
    
                           Punch Card Counties by Percentage of Black/Hispanic
    
    
                               Total        Total             Total Black/   Percentage         Gore
    County         Population1 Black2       Hispanic3         Hispanic4      Black/Hispanic5    Share6
    
    Miami-Dade     2175634      443024      1249358          1692382         77.79%             53.18%
    Jefferson      13090        6387        357              6744            51.52%             55.10%
    Madison        17919        8343        383              8726            48.70%             49.80%
    Hardee         21017        1610        6457             8067            38.38%             38.32%
    Hillsborough   940484       144031      171813           315844          33.58%             48.40%
    Duval          738483       210757      28934            239691          32.46%             41.49%
    Desoto         24636        4480        3311             7791            31.62%             43.82%
    Broward        1535468      285918      196581           482499          31.42%             68.55%
    Glades         8693         1476        1027             2503            28.79%             43.92%
    Sumter         42754        9381        1866             11247           26.31%             44.28%
    Palm Beach     1049420      155763      117114           272877          26.00%             63.81%
    Osceola        150596       10320       26500            36820           24.45%             51.81%
    Collier        207029       11860       38413            50273           24.28%             33.11%
    Marion         245975       36550       11282            47832           19.45%             44.75%
    Highlands      74795        8671        5554             14225           19.02%             41.22%
    Wakulla        19179        2991        179              3170            16.53%             45.96%
    Lee            400542       32270       27222            59492           14.85%             40.93%
    Indian River   100253       10205       4463             14668           14.63%             40.84%
    Nassau         56811        7147        1002             8149            14.34%             29.70%
    Pinellas       878499       85019       32647            117666          13.39%             52.05%
    Gilchrist      14056        1302        332              1634            11.62%             36.66%
    Dixie          12919        1216        179              1395            10.80%             40.37%
    Sarasota       306546       16386       10039            26425           8.62%              46.71%
    Pasco          330704       8494        18013            26507           8.02%              50.36%
    Total          9365502      1503601     1953026          1204826         12.86%             53.05%
    
    
    1. 1999 Population Estimates, Population Estimates Program, Population Div.,
       U.S. Census Bureau, 
    
    2. "Population Estimates for Counties by Race and Hispanic Origin: July 1, 1999," Population Estimates
        Program, Population Div., U.S. Census Bureau,
       
    
    3. Id.
    
    4. Combination of "Total Black" and "Total Hispanic"
    
    5. "Total Black/Hispanic" Divided by "Population"
    
    6. "Gore Vote" Total Divided by "Total Bush/Gore Vote" for Each County, based on figures from
       Harris', Roberts', and Crawford's Response to Emergency Motion for Injunction Pending Appeal and
       to Expedite, Exhibit A; "2000 General Election Results, Unofficial (Recount Results 11/14/2000),"
       provided by Sec. of State from Official Records in Response to Request of Court, Nov. 30, 2000.
    
    
    
                                                           125
                                          CHART F
    
             Marksense (Optical Scan) Counties by Percentage of "No Votes"
    
                               Ballots   Presidential     No       Percent     Gore
    County       Population1   Cast2     Votes Counted3   Votes4   No Votes5   Share6
    
    Gadsden      44077         16812     14727            2085     12.40%      67.13%
    Hendry       29463         8950      8139             811      9.06%       40.57%
    Hamilton     12785         4353      3964             389      8.94%       44.52%
    Franklin     9978          5070      4644             426      8.40%       45.47%
    Taylor       19049         7413      6808             605      8.16%       39.51%
    Okeechobee   32386         10722     9853             869      8.10%       47.57%
    Bradford     24872         9414      8673             741      7.87%       36.22%
    Liberty      6703          2598      2410             188      7.24%       43.57%
    Jackson      44549         17470     16300            1170     6.70%       42.91%
    Lafayette    6477          2679      2505             174      6.49%       32.09%
    Levy         32386         13490     12724            766      5.68%       44.04%
    Suwanee      32972         13189     12457            732      5.55%       33.73%
    Charlotte    136992        70100     66896            3204     4.57%       45.56%
    Washington   20614         8353      8025             328      3.93%       35.91%
    Lake         209812        92046     88611            3435     3.73%       42.24%
    Escambia     282432        121141    116648           4493     3.71%       35.93%
    Columbia     53738         19206     18508            698      3.63%       39.13%
    Holmes       18761         7541      7395             146      1.94%       30.29%
    Baker        21181         8300      8154             146      1.76%       29.89%
    Calhoun      12436         5256      5174             82       1.56%       42.86%
    Manatee      243531        111676    110221           1455     1.30%       45.90%
    Bay          147958        59520     58805            715      1.20%       32.79%
    Walton       38124         18537     18318            219      1.18%       31.65%
    Okaloosa     170049        71512     70680            832      1.16%       24.55%
    St. Johns    119685        61313     60746            567      0.92%       33.03%
    St. Lucie    181850        78709     77989            720      0.91%       54.49%
    Orange       817206        282529    280125           2404     0.85%       51.04%
    Putnam       70215         26416     26222            194      0.73%       47.37%
    Santa Rosa   120952        50684     50319            365      0.72%       26.09%
    Clay         141353        57764     57353            411      0.71%       25.96%
    Monroe       79941         34095     33887            208      0.61%       50.65%
    Union        12720         4084      3826             258      6.32%       37.63%
    Polk         457347        169582    168607           975      0.57%       45.44%
    Alachua      198484        86144     85729            415      0.48%       58.12%
    Citrus       116111        57468     57203            265      0.46%       46.16%
    Hernando     128482        65500     65219            281      0.43%       51.58%
    Flagler      49110         27194     27111            83       0.31%       52.42%
    Volusia      425601        184153    183653           500      0.27%       54.16%
    Brevard      470365        218989    218395           594      0.27%       45.80%
    Leon         215926        103388    103124           264      0.26%       61.13%
    Seminole     357390        137970    137634           336      0.24%       43.88%
    Total        5614905       2353811   2320099          33712    1.43%       45.47%
    
    
    
    
                                                   126
    1.   1999 Population Estimates, Population Estimates Program, Population Div., U.S. Census Bureau,
         
    
    2.   "Voter Turnout (November 15, 2000)," provided by the Sec. of State from Official Records in
         Response to Request of Court, November, 30, 2000.
    
    3.   Id.
    
    4.   Id.
    
    5.   Id.
    
    6.   "Gore Vote" Total Divided by "Total Bush/Gore Vote" for Each County, based on figures from
         Harris', Roberts', and Crawford's Response to Emergency Motion for Injunction Pending Appeal and
         to Expedite, Exhibit A; "2000 General Election Results, Unofficial (Recount Results 11/14/2000),"
         provided by Sec. of State from Official Records in Response to Request of Court, Nov. 30, 2000.
    
    
    
    
                                                         127