Justia Federal District Court Opinions

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.

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 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.

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, 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.

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 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

(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 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 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

This Court has carefully considered Plaintiffs' appeal, as well as the other documents filed, and has conferred en banc onnumerous occasions. We heard oral argument on December 5, 2000. Recognizing the importance of a resolution to this case, a prompt decision on the appeal is required.

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 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.

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

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 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 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 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.

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 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 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 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 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 (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

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 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 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 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 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 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 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.

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.

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 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 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 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.

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 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 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.

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 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).

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. 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 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.

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 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), (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 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 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 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 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 reasonable, nondiscriminatory impact the Plaintiffs have shown to their voting rights.10

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.

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 "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 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 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 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.

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 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 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

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 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 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.

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.

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 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 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 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 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 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 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.

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.

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.

CARNES, Circuit Judge, d