The First Amendment requires the Pennsylvania recount
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Jill Stein and a handful of voters might succeed in forcing a recount that would make Hillary ClintonHillary Diane Rodham Clinton2020 Democrats target federal ban on abortion funding Hillary Clinton slams Trump for spreading 'sexist trash' about Pelosi Gillibrand seizes on abortion debate to jump-start campaign MORE the next President of the United States.

I say that on the basis of my experience testifying before the Florida Legislature’s Select Joint Committee on the Manner of Appointment of Presidential Electors in the 2000 Florida recount.  I had been asked by Committee to provide advice on whether the many lawsuits filed by Democrats around the state could come to a conclusion in time for the Electoral College’s meeting and vote on December 18, 2000.  

If the lawsuits could not be timely concluded, a serious risk existed that Florida’s 25 electoral votes would not be counted.  That would leave George w. Bush with just 246  electoral votes to Al GoreAlbert (Al) Arnold GoreAuthor realizes during on-air interview that portion of book is inaccurate Another VPOTUS tries for POTUS: What does history tell us? Several factors have hindered 'next up' presidential candidates in recent years MORE’s 266.  The Committee asked for my view because I had handled hundreds of lawsuits, including many that involved expedited matters.

The obvious answer to the Committee’s question was that Florida’s courts would have a difficult time adjudicating all of the claims in time.  Although both trial and appellate judges were ordering lawyers to meet very short deadlines, it seemed impossible the state courts could, consistent with due process, come to a timely final conclusion.

That is the testimony  that I gave on Nov. 30, 2000.  But then I could not resist also providing advice on an issue I had not been asked to address: Could the Legislature throw out the results of the election and simply appoint the Florida electors itself?  If so, that would assure not only that Florida’s electoral votes would count.  It also would ensure election of Bush because Republicans had control of both house of the Florida Legislature.

There was no direct precedent to address this issue so I started with the fundamentals.  Under article II of the U.S. Constitution each state is allowed electoral votes equal to the number of its Senators and Representatives and each State Legislature is empowered to determine how those votes will be cast.  

In the early days of the Republic, State Legislatures themselves had decided how electoral votes would be cast.  But since 1889, Florida, by statute, had given that power to all qualified voters.  All 50 state legislatures had done the same.

Another important principle was that once a State Legislature had empowered its citizens with the right to vote, that right is protected by the First Amendment.  Voting, after all, is a form of political speech.  The Legislature could impose reasonable time, place, and manner conditions on elections, but it could not, having decided to have an election in the first place, then discriminate against voters on the basis of their political views, including for whom they had cast their votes.

I drew an analogy to First Amendment rules that govern public parks, streets, and other fora in which people are invited to express their views.  Although the government has no obligation to create these places, once it does, it cannot then burden the expression of views there with which it disagrees.

Consequently, my advice to the Committee was that the First Amendment imposed limits on what it could do.  It could not simply toss out the election due to a preference for Bush, but it could appoint the electors itself if it made findings supported by evidence that the courts were incapable of making a timely determination of the outcome of the election.  Four days later, the Committee recommended that the Legislature convene to consider appointing the electors itself.  That became unnecessary when the U.S. Supreme Court ordered a halt to the Florida election on December 12 on the basis of its conclusion that the recount violated the Equal Protection and Due Process Clauses because Florida lacked uniform procedures for conducting a recount.   

Still, I am convinced that the First Amendment has an important role to play in all recounts. It limits both legislative and judicial discretion to interfere with the process.  

This time around, Wisconsin, Michigan, and Pennsylvania are the states in play and all three have procedures that allow recounts before the Electoral College meets on Dec. 19, 2016.  The orderly completion of the recounts is essential to protect the First Amendment voting rights of all who voted.   

If recounts in those states show Clinton won all three, she will prevail in the Electoral College vote.  Wisconsin and Michigan seem to be proceeding apace,  but a Pennsylvania state court judge has stopped the recount there because challengers declined to post a $1 million bond. 

Pennsylvania law requires a judge to impose a bond in an amount that equals the cost of the recount.  The law also directs the judge to impose the entire cost of the recount, whatever it turns out to be, on the challengers if the judge finds the recount demand was brought without probable cause.   

The issue that Stein and those seeking a records are now raising in a federal lawsuit is whether a state constitutionally can condition the recount on the posting of such a large bond.  If they rely on the First Amendment principles I advocated in 2000, they should have a good chance at success.

Even though the bond requirement does not favor one candidate or party over another, will deter some frivolous recount demands from being, and does provide a certain recovery from those who are not deterred from making frivolous demands, the requirement is infected with a severe form of vagueness which allows it to be used surreptitiously for political ends because there is no reliable standard to determine how much any recount will cost.  A recount might cost far less than $1 million or far more.  Discretion to set the amount allows the judge to set it based on his or her own political views and there is no meaningful way to detect and stop that.  The First Amendment requires that laws that target political speech have specific standards so they cannot be used in this way.   

Worse, the deterrent effect of the Pennsylvania bond and liability requirements are so burdensome that they stop voters from challenging fraud or errors in statewide elections even  when, as here, they can raise large sums that might cover most of their potential liability.  That apparently is what happened here.  

The challengers withdrew their demand once they understood  they could be on the hook for everything Pennsylvania might spend trying to prove their demand lacked probable cause.  The law thus prevents fraud from being challenged in a presidential election.  This is a severe burden on First Amendment rights that certainly outweighs any incidental benefit the Pennsylvania scheme might have.

My First Amendment theory was never fully tested in 2000.  It should be tested now.  

Thomas R. Julin is a shareholder with the Gunster law firm in Miami, Florida.  He won a U.S. Supreme Court decision in 2011, Sorrell v. IMS Health, Inc., holding three state laws violated the First Amendment by prohibiting the sale of information for targeted marketing.  


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