234 F.3d 1133 (11th Cir. 2000)
Robert C. TOUCHSTON, Deborah Shepperd, et al., Plaintiffs-Appellants,v.Michael McDERMOTT, in his official capacity as a member of the County Canvassing Board of Volusia County, Ann McFall, in her official capacity as a member of the County Canvassing Board of Volusia County, et al., Defendants-Appellees.
No. 00-15985.
United States Court of Appeals, Eleventh Circuit.
December 6, 2000.December 18, 2000

Appeal from the United States District Court for the Middle District of  Florida (No. 00-01510-CV-ORL-28C); John Antoon, II, Judge.
Before ANDERSON, Chief Judge, and TJOFLAT, EDMONDSON, COX, BIRCH, DUBINA,  BLACK, CARNES, BARKETT, HULL, MARCUS and WILSON, Circuit Judges.
PER CURIAM:


1
The district court's denial of a preliminary injunction is affirmed for the  reasons set forth in Siegel v. Lepore, --- F.3d ---- (11th Cir.2000).


2
AFFIRMED.


3
TJOFLAT, Circuit Judge, dissenting, in which BIRCH and DUBINA, Circuit Judges,  join, and in which CARNES, Circuit Judge, joins as to Part V:


4
Following the November 7, 2000 general election, the Florida Supreme Court  handed down a decision in Palm Beach County Canvassing Bd. v. Harris, --- So.2d  ---- (Fla.), vacated by Bush v. Palm Beach County Canvassing Bd., --- U.S. ----,  121 S.Ct. 471, --- L.Ed.2d ---- (2000), that changed the standards for counting  votes and certifying vote totals in the race for President and Vice President of  the United States. Specifically, the supreme court gave its imprimatur to a  scheme under which a political party could obtain a manual recount of votes in  select counties. By changing the "rules of the game" after it was played, the  supreme court debased the votes of thousands of Florida voters and denied them  the equal protection of the laws guaranteed by the Fourteenth Amendment.


5
In this case, brought by voters of Brevard County, Florida, a United States  district judge refused to enter a preliminary injunction enjoining the manual  counting of votes in four counties selected by the Florida Democratic Party. The  voters appealed. Now, three weeks later, this court affirms the district judge's  ruling.


6
Plaintiffs may return to the district court tomorrow and ask for a ruling on the  merits of their claims. If they do so and the district court rules, which is  likely given the obvious need for immediate and decisive action, the case will  return to this court and the decision that some are reluctant to make today will  have to be made.


7
I dissent because, in my view, plaintiffs have established a case of serious  constitutional deprivation. Contrary to the majority's view that the record  needs further factual development, the pertinent facts are well known and  uncontested. "We cannot as judges be ignorant of that which is common knowledge  to all men." Sherrer v. Sherrer, 334 U.S. 343, 366, 68 S.Ct. 1097, 1102, 92  L.Ed. 1429 (1948). The "man on the street" is well aware of the mischief the  Florida Supreme Court's Harris decision has wrought. As I explain below, further  proceedings in the district court are unnecessary. Plaintiffs' constitutional  injuries are real; they increase in magnitude daily. We should delay no further.

I.
A.
1.

8
The outcome of the national presidential election, conducted November 7, 2000,  turns upon the results in Florida, for neither the Republican ticket of Governor  George W. Bush and his running-mate Secretary Dick Cheney nor the Democratic  ticket of Vice President Al Gore and his running-mate Senator Joseph Lieberman  has enough electoral votes to win the election without the twenty-five electoral  votes from Florida.1 The outcome of the Florida election has been hotly  contested because the results are so close.


9
The initial count of the November 7 vote, as reported by the Division of  Elections of the State of Florida, revealed that the votes for the Republican  ticket totaled 2,909,135 and that the votes for the Democratic ticket totaled  2,907,351.2 Other candidates on the presidential ballot received a combined  total of 133,583 votes. The margin of difference between the Republican and  Democratic tickets was 1784 votes, or 0.0299% of the total votes cast in  Florida.


10
Florida law requires an automatic recount in all races where, as here, the final  differential between two candidates is 0.5% or less. Fla. Stat.  102.141(4).  This recount was conducted in all 67 Florida counties beginning on November 8,  2000; certifications to the Department of State were completed by November 14.3 The results of this automatic recount altered the margin between the Republican  ticket and the Democratic ticket. The difference between the parties after the  automatic recount (but still before the overseas absentee votes were counted)  was a mere 300 votes; the Republican ticket received 2,910,492 votes and the  Democratic ticket received 2,910,192 votes.


11
On November 18, the overseas absentee ballots were counted and certified to the  Department of State by the counties. The inclusion of these ballots increased  the lead for the Republican ticket to 930 votes.4 Finally, following an order by  the Florida Supreme Court on November 21,5 all manual recounts that were  completed and submitted to the Elections Canvassing Commission6 by 5:00 P.M. on  November 26 were added to final vote totals. The evening of November 26, the  Elections Canvassing Commission certified the vote total of Florida in the  presidential race. That certification stated that Governor Bush received  2,912,790 votes and Vice President Gore received 2,912,253 votes-a difference of  537 votes.7

2.

12
The Florida statutory election system contemplates mixed control between local  and state officials. The Secretary of State is the chief election officer of the  state, Fla. Stat.  97.012(1), but the actual conducting of elections takes  place in each of the various counties of Florida under the auspices of the  county supervisor of elections.8 County canvassing boards are responsible for  counting the votes given to each candidate, Fla. Stat.  102.141, and they may,  sua sponte, order mechanical recounts "[i]f there is a discrepancy which could  affect the outcome of an election." Fla. Stat.  102.166(3)(c). After the county  canvassing board certifies the votes, the county results in any race involving a  state or federal office are forwarded to the Department of State.9 Fla. Stat.   102.111(1); Fla. Stat.  102.112. After all the counties have certified election  returns to the Department of State, the Elections Canvassing Commission has the  power to "certify the returns of the election and determine and declare who has  been elected for each office." Fla. Stat.  102.111(1).


13
Florida Statute section 102.166(4)(a)-(b) authorizes a candidate or his  political party-but not a voter-to request a county canvassing board to conduct  a "manual recount," provided that the request is made "prior to the time the  canvassing board certifies the [election] results ... or within 72 hours after  midnight of the date the election was held, whichever occurs later." When  presented with a manual recount request, the canvassing board has unrestricted  discretion to grant or deny a sample manual recount of three precincts. Fla.  Stat.  102.166(4)(c)-(d); see Broward County Canvassing Bd. v. Hogan, 607 So.2d  508, 510 (Fla. 4th DCA 1992) ("The statute clearly leaves the decision whether  or not to hold a manual recount of the votes as a matter to be decided within  the discretion of the canvassing board."). If the board so authorizes, the  candidate chooses the three precincts to sample. Then:


14
If the manual recount [of the three precincts] indicates an error in the vote  tabulation which could affect the outcome of the election, the county  canvassing board shall:


15
(a) Correct the error and recount the remaining precincts with the vote  tabulation system;


16
(b) Request the Department of State to verify the tabulation software; or


17
(c) Manually recount all ballots.


18
Fla. Stat.  102.166(5).

3.

19
Unsatisfied with the results of the initial vote count, the Florida Democratic  Party, pursuant to Fla. Stat.  102.166(4)(a), requested manual recounts in four  selected counties: Broward, Miami-Dade, Palm Beach, and Volusia. These requests  were made on November 9. Voter registration in these four counties is heavily  Democratic, and the Democratic ticket carried them by a substantial margin in  both the initial vote counts and automatic recounts. No candidate or political  party requested manual recounts of the presidential race in any of the other  sixty-three counties. The decisions of the county canvassing boards to conduct  full manual recounts in the four counties requested by candidate or political  parties pursuant give rise to this lawsuit and other litigation concerning the  Presidential election in Florida.

B.
1.

20
On November 13, 2000, Robert C. Touchston, Deborah Shepperd, and Diana L.  Touchston commenced this action by filing a verified complaint and moving for a  preliminary injunction in the District Court for the Middle District of Florida.  Plaintiffs are registered voters in Brevard County, Florida, who voted in the  general election on November 7; they attempted to cast their ballots for the  Republican ticket of George W. Bush and Dick Cheney for President and Vice-  President of the United States.10 Plaintiffs sued the Florida Secretary of  State, members of the Elections Canvassing Commission, and the county canvassing  boards of Volusia, Palm Beach, Broward, and Miami-Dade Counties.11


21
Plaintiffs brought this action pursuant to 42 U.S.C.  1983, claiming violations  of the Fourteenth Amendment. Section 1983 provides a remedy for the deprivation  of rights "secured by the Constitution and laws" of the United States by persons  acting under color of state law. In their complaint, plaintiffs allege that the  manual recounting of ballots in some counties but not others unconstitutionally  debases the votes cast in the latter counties, and in particular the votes cast  by plaintiffs and those similarly situated. Plaintiffs also allege that the lack  of standards to guide the canvassing boards in determining "the voter's intent,"  Fla. Stat.  102.166(7)(b), in a manual recount unconstitutionally debases votes  by permitting the canvassing boards to speculate as to a voter's intent and  thereby erroneously conclude that a voter cast a ballot in behalf of a  particular candidate. Plaintiffs seek a judicial declaration that Fla. Stat.   102.166(4) is unconstitutional (both on its face and as applied) because it  debases their votes and the votes of those similarly situated and thereby denies  them rights guaranteed by the Fourteenth Amendment.


22
Plaintiffs therefore asked the district court to enjoin the county defendants  from "certifying any vote tallies that include the results of any manual  recount" in Broward, Miami-Dade, Palm Beach, and Volusia Counties; to enjoin the  state defendants from "receiving" and thereafter "certifying the results of the  election for electors" for the office president and vice-president based, in  whole or in part, on the results of any manual recount; and to order the state  defendants to certify the results of the election on November 17, 2000, based on  county-certified results that did not include any manual recounts.12


23
On appeal, this court ordered that the case be heard initially en banc, pursuant  to Fed. R.App. Proc. 35. 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). Plaintiffs asked this court for an injunction pending appeal, which,  if granted, would have enjoined the county defendants from conducting manual  recounts and/or enjoined the state defendants from certifying the results of the  Presidential election that contained any manual recounts. We denied the motion  without prejudice. Touchston v. McDermott, --- F.3d ---- (11th Cir.2000).

2.

24
Plaintiffs appeal from the district court's order denying a preliminary  injunction. While this appeal has been pending, several things have transpired  which have materially altered the status of the case.


25
First, the Florida Supreme Court, in consolidated cases in which the plaintiffs  in the case before us were not parties, has interpreted Florida's statutory  election system to permit selective manual recounting in counties chosen by a  candidate or his political party. Palm Beach County Canvassing Bd. v. Harris,  --- So.2d ---- (Fla.), vacated by Bush v. Palm Beach County Canvassing Bd., ---  U.S. ----, 121 S.Ct. 471, --- L.Ed.2d ---- (2000). In effect, the Florida  Supreme Court removed any doubt that may have existed as to whether Florida's  vote counting scheme operates as the plaintiffs allege in their verified  complaint. Given the court's ruling, plaintiffs' constitutional claims now  present pure questions of law.13


26
Second, a series of events has highlighted the current and future constitutional  injury to the plaintiffs and those similarly situated. Already, Volusia County  and Broward County have included the results of manual recounts of ballots,  based on requests by the Florida Democratic Party, in the November 26 official  certification by the Elections Canvassing Commission. These manual recounts  proceeded under the standardless vote counting scheme at issue and thus  necessarily included some "votes" that were not detected by the vote tabulating  machines but were counted because county elections officials determined the  "intent" by examining the ballot.14 Plaintiffs languish under the very real  possibility of further injury because of the "contest" suit brought by Vice  President Gore in Leon County pursuant to Fla. Stat.  102.168. Gore v. Harris,  No. CV-00-2808 (Fla.Cir.Ct. Nov. 27, 2000). In that litigation, Gore claims that  legal votes (which his complaint calls "indentations" in punch card ballots)  have not been counted in Miami-Dade and Palm Beach counties. The lawsuit seeks a  judicially-mandated manual recount of ballots in these counties and asks that  new totals, which would include indented ballots, be added to the certified  total. Although the trial court ruled against the need for further recounts, an  appeal has already been taken and the matter is pending with the Florida Supreme  Court. Gore v. Harris, No. SC00-2431 (Fla.) (filed Dec. 5, 2000). Thus, the  potential for further injury to the plaintiffs and those similarly situated is  very real.


27
In light of these events and the fact that this appeal presents pure questions  of law, plaintiffs have moved this court to consider the merits of their claims  and to direct the entry of an injunction.


28
In the ensuing analysis, the question arises whether the Florida Supreme Court's  decision in Harris announced a new vote counting scheme for statewide elections  in Florida or whether it merely interpreted the pre-existing vote counting  model. Either answer to this question presents a pure question of constitutional  law. In Part III, I address the question from the starting point that the  Florida Supreme Court announced a new vote counting model for Florida. In Part  IV, I address the question from the other starting point-that the Florida  Supreme Court merely clarified the pre-existing vote counting model. Before I  embark on the analysis, however, I discuss the competing "models" that have been  presented as properly implementing Florida's statutory election system is  appropriate and instructive. Part II undertakes this discussion.

II.

29
In Palm Beach County Canvassing Board v. Harris, --- So.2d ---- (Fla.), vacated  by Bush v. Palm Beach County Canvassing Bd., --- U.S. ----, 121 S.Ct. 471, ---  L.Ed.2d ---- (2000), the Florida Supreme Court was faced with conflicting  interpretations of the state's election statutes. The Florida Secretary of  State, as appellee before the supreme court, interpreted the statutes as having  created one vote counting model, and the Florida Attorney General, as  intervenor-appellant, interpreted the statutes as embodying a different model.  In Harris, the court rejected the Secretary of State's interpretation in favor  of the interpretation advocated by the Attorney General.


30
In order to understand the court's decision in Harris, one must consider two  things. First, one has to understand how Florida voters cast their ballots in a  general election, including the one held on November 7. Second, one must compare  the model for counting votes advocated by the Secretary of State with the model  that emerged from the Florida Supreme Court's opinion.

A.

31
In the November 7 election, voters in 65 Florida counties cast their votes on  paper ballots read by vote tabulating machines.15 For ease of discussion, I  describe the voting process as it occurs in counties that use punch card  ballots.16 A voter can return a punch card ballot in one of three conditions:  (1) the voter may take a ballot but choose not to vote in any election or  referendum, so that the ballot contains no punched holes when returned; (2) the  voter may vote in some but not all contests, so that the ballot contains punched  holes in some races when returned; or (3) the voter may vote in all contests, so  that the ballot is returned with a hole punched for every race. If a voter  returns the ballot with holes punched in some contests but not others, the  ballot is said to be "undervoted."17


32
To count the votes, the ballots are fed into a punch card reading machine (the  "vote tabulating machine") programmed to tabulate votes based on the location of  holes punched. This machine count is conducted in every election, and, in most  elections, is the only count. Recognizing that machines are not infallible,  however, the Florida legislature created a failsafe manual recount provision  that permits a candidate or political party to request a manual recount to  verify the machine tabulation.18 While the process for counting votes is fixed  by statute, there is room for interpretation in its implementation. Perhaps the  most important part of the statutory system left open to interpretation is what  constitutes a valid vote. The Florida Supreme Court noted in Harris that the  ultimate goal in conducting an election is "to reach the result that reflects  the will of the voters." Harris, at . The election statutes, however, do not  provide guidelines outlining how the will of individual voters should be  determined from their ballots. It is this lack of guidance that gave rise to the  differing interpretations propounded by the Secretary of State and the Attorney  General. According to the Secretary, a voter's will is only adequately expressed  by properly casting a vote such that the machine can read it. Under the Attorney  General's interpretation, with which the supreme court agreed, a vote is valid  if it demonstrates the voter's intent in any ascertainable manner, whether read  by the machine or not. To understand the model that emerged from Harris, one  must first examine the model as understood by the Secretary of State.

B.
1.

33
The Secretary's vote counting model, which was in place prior to the supreme  court's decision, applied a fixed, objective standard for determining voter  intent-voters were required to indicate their voting intent unequivocally by  marking their ballots in such a way that the vote tabulating machine, with its  pre-programmed evaluation standard, could read it. I refer to this vote counting  model as the "machine model," because it counts as valid only those votes that  the vote tabulating machine can read and record. The machine model thus relies  on an objective tabulating machine that admits of no discretion to count  votes-if a vote is properly cast according to the instructions given to the  voter,19 the machine will count it.20


34
Under the machine model, the purpose of the manual recount provision (the  failsafe in the statutory election system) is to allow a candidate or his party  to request human verification that the vote tabulating machine functioned  properly. This construction of the manual recount provision explains why a  canvassing board is given three alternatives in section 102.166(5) in the event  that it grants a manual recount request and the three-precinct sample manual  recount reveals "an error in the vote tabulation."21 The first two options  permitted under section 102.166(5) do not require a complete manual recount of  votes county-wide, but rather involve making repairs to the machine tabulating  system so that it properly counts the votes. Only the third option available to  the canvassing board permits a county-wide manual recount of ballots. The  availability of these alternative solutions to correct an error in vote  tabulation suggests that a full manual recount is appropriate only when the  machine tabulating system has failed irreparably.


35
The Secretary of State, pursuant to her authority under section 97.012(1),  interpreted the statutory system as the machine model. Nevertheless, the Florida  Supreme Court, in its November 21 decision, rejected the machine model and, in  effect, propounded a different model requiring a fluid, subjective test for  ascertaining voter intent when counting votes.

2.

36
The Florida Supreme Court ruled that a ballot marked improperly, so that a vote  tabulating machine reads it as undervoted, must nevertheless be examined for any  evidence of voter intent that might be construed as a vote.22 This conflicts  with the Secretary of State's position that voter intent is sufficiently  discerned by properly functioning vote counting machines.23 According to the  supreme court, ballots must be inspected by hand because vote tabulating  machines do not sufficiently read voter intent.24 The vote counting model that  emerged from the supreme court's decision requires the counting of votes  improperly cast (according to the Secretary's model) as valid votes if, applying  a subjective standard, voter intent can be ascertained by manual inspection of  the ballot.


37
While the court endorsed counting votes by looking at each race on a ballot to  determine whether the voter intended to cast a vote in that race, the court did  not provide uniform standards for counties to follow in determining voter  intent.25 The court left to each county canvassing board that conducts a manual  recount the unfettered discretion to set its own standards. Under this  standardless system, a mark on a punch card ballot that is deemed a sufficient  showing of intent to be counted as a vote in one county might be deemed a  non-vote by another county.26


38
Furthermore, although the court held that vote tabulating machines do not  necessarily discern valid expressions of voter intent, it did not order that all  65 counties that use such machines begin manually examining all undervoted27  ballots for any sign of voter intent. Rather, the court left the candidates or  their parties with the option of requesting a count of undervoted ballots by  invoking the manual recount statute in any one or more counties.


39
Accordingly, applying Harris to my punch card example, indentations on punch  card ballots-which I call "dimple votes"-may be counted as valid votes in  selected counties.28 The necessary implication of this model, given that the  machines are not programmed to count dimples, is that a vote tabulating machine  is merely a screening device-a method of determining the intent of voters who  properly punched their ballots-that is inadequate as a tabulating device because  it fails to count all valid votes.


40
If the vote tabulating machines serve merely as a screening device in counting  valid votes, then the legislature, in enacting sections 102.166(4)-(7), inaptly  refers to the process of manually counting dimple votes as a "recount." In fact,  a county's initial vote count (including the automatic recount) is not complete  until all ballots containing non-votes in any race have been examined manually.  Nevertheless, section 102.166(4) provides that such a manual examination of  ballots will be conducted only at a candidate or political party's request, and  only in those specific counties chosen by the candidate or political party.29 In  other words, while Harris presumes that vote tabulating machines will not count  all valid votes, it precludes the counting of remaining votes except in those  counties selected by a candidate or his party. Under this "selective dimple  model,"30 dimple votes cast in a county where no "recount" is requested are  simply not counted.


41
Under the selective dimple model, the standard of evaluating voter intent (i.e.,  what constitutes a valid vote) in a manual recount will differ from the standard  applied by the machines in the initial count. The model, therefore, lends itself  to several undesirable results.31


42
Since the selective dimple model leaves to the candidates the decision of  whether and where dimple votes should be included in the final vote tally, the  system encourages candidates to cherry-pick-to carefully select the counties in  which to request that ballots be manually examined for dimple votes. Under the  selective dimple model, a candidate will choose the counties based on: (1) the  percentage of the total machine-tabulated vote received; (2) the size of the  county, measured by the total number of ballots cast in the election; and (3)  the political makeup of the canvassing board in the county.32 A candidate will want dimple votes counted in counties where he captured a greater proportion of  the machine tabulated vote than did his opponent, because the candidate can  expect that he will likely take a similar proportion of the dimple votes.33 A  candidate will favor counties where the most ballots were cast because those  counties will have the most dimple votes.34 The political composition of the  county canvassing board will be critical to a candidate in making selective  manual count requests for two reasons. First, the election statutes give the  canvassing board unfettered discretion to honor a candidate's request to  manually examine ballots.35 Second, if the canvassing board grants the request,  the election system affords the canvassing board unfettered discretion to set  the standards for determining which markings on a ballot demonstrate voter  intent sufficient to constitute a vote.36 Thus, a candidate is more likely to  have his request for a manual count granted, and to receive favorable  interpretations of voter intent, in counties where the candidate shares a  political party affiliation with the majority of the canvassing board.


43
As discussed above, section 102.166(5) allows the county canvassing board to  conduct a recount37 only if the results of the recount "could affect the outcome  of the election." Seemingly, the candidate who received the most votes  state-wide according to the machine tabulation could never demonstrate that a  manual recount of any county could affect the outcome of the election,38 since  adding dimple votes would only serve to increase that candidate's margin of  victory. Thus, it is doubtful that a county canvassing board would, in its  discretion, grant such a candidate's request for the sample manual recount.  Arguably, however, granting the candidate's request could affect the outcome of  the election if his opponent is granted full recounts in other counties, and  thereby gains a significant number of votes. Given that the canvassing board has  limited time to certify the election results, and that one board may not know  whether another county will manually recount its ballots, I question exactly  what remains to guide a canvassing board in its decision to grant or deny a  manual count.


44
The selective dimple model also encourages candidates to manipulate the timing  of manual recount requests, so as to use the statutory limitations period to  foreclose his opponent from making his own requests for manual counts. Since the  manual recount statute cuts off a candidate's right to request a manual  examination of ballots, a candidate who stays his request until the midnight  hour may pin his opponent against the statutory deadline.39 Thus, by gaming the  timing and location of recount requests under the selective dimple model, a  candidate can maximize the count of dimple votes cast for him, while minimizing  the number of dimple votes counted for his opponent.

C.

45
Prior to the supreme court's decision in Harris, the Division of Elections  interpreted the statutory election system as creating a machine model. The  decision, however, indicated that the selective dimple model is the proper vote  counting scheme under the statutory election system. In Part III, therefore, I  discuss whether the supreme court's decision constituted a post-election change  in Florida's vote counting model, in derogation of the principles set forth in  Roe v. Alabama, 68 F.3d 404 (11th Cir.1995) ("Roe III "). In Part IV, I consider  whether the selective dimple model that emerged from Harris infringes upon  plaintiffs' rights in violation of the Fourteenth Amendment.

III.

46
Plaintiffs contend that Harris materially altered Florida's vote counting model  after the November 7 election. They argue that retroactively validating  defective votes by judicial decree violates the rule established in Roe.


47
While federal courts generally do not intervene in "garden variety election  disputes," our involvement is appropriate and necessary when "the election  process itself reaches the point of patent and fundamental unfairness"  indicating a violation of due process for which relief under 42 U.S.C.  1983 is  appropriate. Curry v. Baker, 802 F.2d 1302, 1315 (11th Cir.1986) (internal  citations omitted). The Supreme Court has held that "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."  Reynolds v. Sims, 377 U.S. 533, 555, 84 S.Ct. 1362, 1378, 12 L.Ed.2d 506 (1964).


48
In the Roe, cases, we were presented with allegations that a post-election judicial  interpretation of a state's election laws required the inclusion of theretofore  invalid votes, which amounted to stuffing the ballot box. See Roe I, 43 F.3d at  581. An Alabama statute required a person voting by absentee ballot to execute  an affidavit in the presence of a "notary public or other officer authorized to  acknowledge oaths or two witnesses 18 years of age or older." Id. at 577, citing  Ala.Code  17-10-7 (1980). During a general election held on November 8, 1994,  "[b]etween 1000 and 2000 absentee voters failed to properly complete their  affidavits, either by failing to have their signatures notarized or by failing  to have them witnessed by two people." Id. at 578. Pursuant to the applicable  statute, those ballots were not counted-but were set aside as contested ballots.  The election results in one race were particularly close-informal estimates  placed the leading candidates "a mere 200 to 300 votes apart without counting  the contested absentee ballots." Id. Two absentee voters, on behalf of  themselves and others similarly situated, filed suit in state court seeking an  order that the contested absentee ballots be counted. The court ordered that  certain of the absentee ballots be counted, stating that "[a]bsentee ballots may  not be excluded from being counted because of a lack of notarization or a lack  of witnesses." Id. (emphasis in original). The court further ordered that the  Secretary of State refrain from certifying the vote totals until the new count,  including the contested absentee ballots, was forwarded to him. Id.


49
Larry Roe, on behalf of himself and other similarly situated Alabama voters,  brought suit in the United States District Court for the Southern District of  Alabama alleging that the counting of absentee ballots, in contravention of the  state's past practice, violated the Fourteenth Amendment. The district court  agreed, finding that "the past practice of the Alabama election officials prior  to [the] general election has been to refrain from counting any absentee ballot  that did not include notarization or the signatures of two qualified witnesses,"  that "the past practice of the Secretary of [the] State of Alabama has been to  certify Alabama election results on the basis of vote counts that included  absentee votes cast only by those voters who included affidavits with either  notarization or the signatures of two qualified witnesses," and that the circuit  court's order changed this past practice. Id. at 579. The district court ordered  that the contested ballots be preserved and protected; that the Secretary  refrain from certifying election results based on a vote count that included the  contested absentee ballots; that Alabama's sixty-seven county election officials  forward vote totals to the Secretary without counting the contested absentee  ballots; and that the Secretary, upon receipt of those vote totals, certify the  election results. Id.


50
Defendants appealed, and we certified the question to the Alabama Supreme Court:  "WHETHER ABSENTEE BALLOTS THAT, ON THE ACCOMPANYING AFFIDAVIT ENVELOPE, FAIL TO  HAVE TWO WITNESSES AND LACK PROPER NOTARIZATION ... MEET THE REQUIREMENTS OF  ALABAMA LAW ... TO BE COUNTED IN THE NOVEMBER 8, 1994 GENERAL ELECTION." Roe I, 43 F.3d at 583. The Alabama Supreme Court answered in the affirmative, stating  that the signature of the voter alone, if accompanied by the voter's address and  reason for voting absentee, satisfies the statute's requirements. Roe v. Mobile  County Appointment Bd., 676 So.2d 1206 (Ala.1995). After receiving the supreme  court's response, we remanded the case to the district court for a determination  of whether, prior to and at the time of the November 8, 1994 general election,  the practice in Alabama had been to reject or, conversely, to count absentee  ballots whose envelope did not include the signature of either a notary public  or two witnesses. Roe v. Alabama, 52 F.3d 300 (11th Cir.1995) ("Roe II "). The  district court found, after trial of the case, that the practice in Alabama  prior to the November 8, 1994 election, had been uniformly to exclude ballots  not in conformity with the literal requirements of the statute. Given this  finding, the district court concluded that the plaintiffs were entitled to  relief, for "to include the contested ballots in the vote totals would  depreciate the votes of [the plaintiff class]" in violation of the Fourteenth  Amendment. Roe III, 68 F.3d at 407. The district court entered a permanent  injunction that, among other things, directed the Secretary of State to certify  the results of the elections.


51
Defendants again appealed, arguing that the court should have given effect to  the Supreme Court of Alabama's answer to the certified question. We noted in  response that "the Alabama Supreme Court, in answering our question, construed  an Alabama statute; the court did not, and was not called upon to, decide  whether the counting of the contested ballots cast in the ... election-in the  face of Ala.Code  17-10-4 and in the face of a uniform state-wide practice of  excluding such ballots-infringed the [plaintiff] class' constitutional rights."  Id. at 409. We affirmed the decision of the district court, confirming our  conclusion in Roe I that such a post-election change in the applicable law  "demonstrated fundamental unfairness." Roe I, 43 F.3d at 580.


52
As in Roe, the appropriate analysis in this case begins with an examination of  Florida's past practice in tallying its election results. The past practice of  Florida counties using machine-read ballots (whether they are optical scanning  or punch card ballots) has been to certify the machine tabulation of votes as  the county's official vote count. In keeping with that practice, no counties in  the November 7 election supplemented the machine counts with hand counts of  undervoted ballots before submitting their results to the Secretary of State. If  the machines were merely screeners40 on November 7 as the selective dimple model  presumes, then the election officials in each county should have examined all  undervoted ballots on the night of the election. That they did not do so is  evidence that either the Florida Supreme Court changed the election law, or that  county election officials were shirking their duties.


53
The interpretations of the election statutes promulgated by Florida election  officials before the state supreme court's decision are also of paramount  interest. The Secretary of State is the chief election officer of Florida, and  it is her responsibility to "[o]btain and maintain uniformity in the  application, operation, and interpretation of the election laws."41 Fla. Stat.   97.012(1) (2000).


54
Pursuant to section 106.23(2),42 the Division of Elections, a division within  the Department of State, issued three advisory opinion letters on November 13,  2000, advocating the machine model for counting votes under the statutory  system. The letters were written in response to requests asking the Division to  define the meaning of "error in the vote tabulation" in the statutory manual  recount provision. The Division stated that " '[a]n error in the vote  tabulation' means a counting error in which the vote tabulation system fails to  count ... properly marked mark-sense or properly punched punch card ballots."  Advisory Opinion Letter from L. Clayton Roberts, Director, Division of  Elections, Nov. 13, 2000. Significantly, the Division opined that the "inability  of a voting system[ ] to read an ... improperly punched punch card ballot ... is  not an 'error in the vote tabulation.' " Id.


55
Apparently, however, state officials could not agree about the meaning of the  phrase "error in the vote tabulation." Attorney General Robert Butterworth, in a  letter to the Palm Beach County Canvassing Commission, took issue with the  November 13 opinion issued by the Division of Elections. He noted in his letter  that "[t]he division's opinion is wrong is several respects," and stated that  "[w]here a ballot is so marked as to plainly indicate the voter's choice and  intent, it should be counted as marked unless some positive provision of law  would be violated." Letter from Robert A. Butterworth to Hon. Charles Burton,  November 14, 2000. Insofar as Attorney General Butterworth's statement can be  read to suggest that all ballots with undervoted ballots should have been  examined on November 7, it is noteworthy that no county canvassing board member  has, to my knowledge, been charged with neglect of duty under Fla. Stat.   104.051 for failure to take such action. See Fla. Stat.  104.051 ("Any official  who willfully refuses or willfully neglects to perform his or her duties as  prescribed by this election code is guilty of a misdemeanor of the first  degree.").


56
The legislative history of the manual recount provision also indicates that it  was added to ensure an accurate count of properly cast (as opposed to dimpled or  otherwise mismarked) votes. The manual recount provision was enacted as part of  the Voter Protection Act of 1989 to provide a remedy to candidates who believed  the vote tabulating equipment was not working properly in a given county. The  Senate Staff Analysis and Economic Impact statement on the legislation indicated  that it was enacted, in part, in response to a problem in a prior election in  which "an apparent software 'glitch' or error was responsible for an incident in  Ft. Pierce when a machine would count the Democratic votes, but would not accept  Republican ones." Bush v. Palm Beach County Canvassing Bd., Pet. For Cert. Resp.  of Harris, p. 13 n. 10, cert. granted --- U.S. ----, 121 S.Ct. 510, --- L.Ed.2d  -- --.


57
As the evidence shows, then, Harris interpreted the state election system in a  way that was inconsistent with previous state practice. If this was a  post-election changing of the rules, rather than merely an interpretation of an  ambiguous vote counting model, such a change is fundamentally unfair in three  ways. First, deciding after the election to count votes that do not satisfy  requirements set forth before the election dilutes the votes of those who  attended the polls and indicated their intent in accordance with the  instructions.43 This is directly analogous to the violation in Roe. Cf. Roe I,  43 F.2d at 581.


58
Second, to the extent that Harris constitutes a change in election procedures,  it creates a vote dilution problem more egregious than that in Roe. In addition  to dilution caused by counting improperly executed ballots that nevertheless  express a clear intent to cast a vote, Florida voters also suffer from dilution  by the inevitable counting of markings on ballots that were not intended as  votes.44 The wholly arbitrary standards for determining voter intent in various  counties ensure the erroneous addition of countless non-votes to a candidate's  tally. This bolsters plaintiffs' claim of a Roe-type violation, which dilutes  the votes of bona fide voters in violation of the First and Fourteenth  Amendments.45


59
Third, if Harris changed the definition of a "valid vote" after the running of  statutory limitations period within which a candidate could ask for a manual  recount, such a change would work fundamental unfairness. By the time the  court's decision was announced on November 21, the time limit in which the  candidates or their parties could request manual counts had elapsed. Had the  candidates known that Florida's statutory election system allowed the selective  mining of votes through its manual recount provision, they might have made use  of the system to request that at least some of the 180,000 ballots containing  non-votes in the presidential race be examined sometime before November 21. The  court presumably recognized this problem when it offered to extend the time  period for requesting manual counts.46 Harris, --- So.2d ----.


60
I find plaintiffs' argument that the court retroactively changed the state's  vote counting model extremely persuasive. Because of past practice,  interpretations of state officials prior to Harris, and the legislative history,  I believe that the Florida Supreme Court superimposed a new model onto the  state's statutory election scheme. Because of this circuit's clear precedent in  Roe, I would hold that the Florida Supreme Court unconstitutionally changed the  election system after the election had taken place. This alone is reason to  reverse.


61
Even if I am incorrect in assessing Harris as a post-election change in  violation of Roe, plaintiffs' allegations that the selective dimple model itself  is constitutionally infirm warrant a full analysis.

IV.

62
Florida law gives every qualified voter one vote in its statewide election of  presidential electors. In counting those votes under the selective dimple model,  however, it employs a county unit system which works to disenfranchise voters  based on where they reside. As noted in my description of the selective dimple  model, voters who express their intent to vote for President in a manner  undetectable by a vote tabulating machine will have their votes counted only at  the behest of a candidate or political party. The statutes provide no way for a  voter, himself, to demand that his "dimple" or other marking be counted before  the vote total is certified; he must wait for a qualified partisan proxy to do  it for him.47 If no qualified proxy requests a manual count, the untabulated  votes simply remain uncounted.


63
The selective disenfranchisement caused by the selective dimple model implicates  two similar but distinct fundamental rights: the right to vote and the right of  freedom of association. These rights, embodied in the First Amendment, are  enforced against the states by the Fourteenth Amendment. The Equal Protection  Clause of the Fourteenth Amendment guarantees, as its name suggests, that no  person shall be denied "equal protection of the laws." U.S. Const. amend. XIV,   1. Thus, I first examine in Part A, Sections 1 and 2, whether the selective  dimple model impermissibly classifies and discriminates against certain voters  or groups of voters. I then turn in Part B to an analysis of the vote counting  scheme under the Due Process Clause of the Fourteenth Amendment, which  guarantees that no State "shall deprive any person of life, liberty, or  property, without due process of law." Id. The concept of "liberty," as  interpreted by the United States Supreme Court, includes a right to freedom of  association. See NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460, 78 S.Ct.  1163, 1171, 2 L.Ed.2d 1488 (1958) ("It is beyond debate that freedom to engage  in association for the advancement of beliefs and ideas is an inseparable aspect  of the 'liberty' assured by the Due Process Clause of the Fourteenth Amendment,  which embraces freedom of speech."). My inquiry, therefore, focuses on whether  the Florida vote counting scheme, as applied in this case, infringes upon  plaintiffs' right of association in violation of the Due Process Clause.

A.
1.

64
Under the selective dimple model, if a candidate in a Florida statewide race is  trailing his opponent by a small number of votes following the machine counts,  his only chance to win is to mine for additional votes via manual counts.48 The  candidate will turn, naturally, to those counties in which he believes he can  make up the difference. As discussed in Part II.B.2, supra, in considering  whether to ask for a manual count in a particular county, a candidate will  consider (1) the percentage of the vote he has carried in the county thus far,  (2) the size of the county, and (3) the political makeup of the decision-making  body in the county. Thus, a candidate would, under the current system, be likely  to ask for manual counts in large counties in which his party predominates.


65
These observations underscore the adversarial structure of the Florida scheme  which allows candidates to play games with individual rights. The selective  dimple model puts voters in no better a position than children in a schoolyard  game yelling, "Pick me, pick me!" The candidates, as team captains, will only  choose those who are sure to help them win. Smaller, less populated  counties-like frail schoolchildren-have almost no chance of being picked.49 At  the end of choosing teams, those who aren't chosen simply don't get to play.  This scheme clearly contravenes the long-settled principle that "[q]ualified  citizens not only have a constitutionally protected right to vote, but also the  right to have their votes counted." Duncan v. Poythress, 657 F.2d 691, 700 (5th  Cir. Unit B 1981), citing Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 28  L.Ed. 274 (1884), and United States v. Mosley, 238 U.S. 383, 35 S.Ct. 904, 59  L.Ed. 1355 (1915). As Justice Douglas wrote in Gray v. Sanders, 372 U.S. 368,  379-80, 83 S.Ct. 801, 808- 09, 9 L.Ed.2d 821 (1963):


66
[o]nce the geographical unit for which a representative is to be chosen is  designated, all who participate in the election are to have an equal  vote-whatever their race, whatever their sex, whatever their occupation,  whatever their income, and wherever their home may be in that geographical  unit. This is required by the Equal Protection Clause of the Fourteenth  Amendment. The concept of "we the people" under the Constitution visualizes no  preferred class of voters but equality among those who meet the basic  qualifications. The idea that every voter is equal to every other voter in his  State, when he casts his ballot in favor of one of several competing  candidates, underlies many [United States Supreme Court] decisions.


67
The Florida vote counting model, as interpreted by the Florida Supreme Court,  works to deprive voters of their right to vote based on their county of  residence and thereby denies them equal protection of the laws.50

2.

68
In addition to facilitating discrimination against individuals on a geographical  basis, the selective dimple model encourages wily candidates to fence out voters  on the basis of their party affiliation. Plaintiffs claim that, as Bush voters,  their vote has been diluted by the selective enfranchisement of dimple voters in  heavily populated, predominately Democratic counties. Specifically, they allege  that Vice President Gore and the Democratic Party requested and received manual  counts in Volusia, Palm Beach, Broward, and Miami-Dade counties-all counties in  which he received approximately six out of every ten machine-counted votes. His  opponent, Governor Bush, did not request manual counts in any county.51 I agree  that the selective dimple model, as applied, is tailor-made for unconstitutional  party-based discrimination.


69
"The right to form a party for the advancement of political goals means little  if a party can be ... denied an equal opportunity to win votes." Williams v.  Rhodes, 393 U.S. 23, 31, 89 S.Ct. 5, 10-11, 21 L.Ed.2d 24 (1968). Under the  selective dimple model, the state encourages candidates to wield the manual  count provision as a sword to cut down the strength of an opposing party's  support. The game is best played by the candidate who is able to enfranchise  scores of his own supporters while validating as few extra votes as possible for  his opponent. Plainly, then, the vote counting scheme encourages candidates to  discriminate between groups of voters-organized in county units-based on the  predominant party affiliation of each county's voters.


70
The question is whether this gamesmanship works a constitutional injury not only  to the individual voters who are not chosen for enfranchisement, but also to  those groups of voters whose power is intentionally and systematically diluted  by the selective validation of votes for an opposing party's candidate. Riddell  v. National Democratic Party, 508 F.2d 770, 777 (5th Cir.1975) ("Any  interference with the freedom of a party is simultaneously an interference with  the freedom of its adherents."). "The unlawful administration by state officers  of a state statute fair on its face, resulting in its unequal application to  those who are entitled to be treated alike, is not a denial of equal protection  unless there is shown to be present in it an element of intentional or  purposeful discrimination." Snowden v. Hughes, 321 U.S. 1, 8, 64 S.Ct. 397, 401,  88 L.Ed. 497 (1944); see also Gamza v. Aguirre, 619 F.2d 449, 453 (5th  Cir.1980). Such discrimination "may appear on the face of the action taken with  respect to a particular class or person, or it may only be shown by extrinsic  evidence showing a discriminatory design to favor one individual or class over  another not to be inferred from the action itself." Snowden, 321 U.S. at 8, 64  S.Ct. at 401. Additionally, "the determination that particular conduct  constitutes a constitutional deprivation rather than a lesser legal wrong  depends on the nature of the injury, whether it was inflicted intentionally or  accidentally, whether it is part of a pattern that erodes the democratic process  or whether it is more akin to a negligent failure properly to carry out the  state ordained electoral process and whether state officials have succumbed to  'temptations to control ... elections by violence and by corruption.' " Gamza,  619 F.2d at 453.


71
The action taken in the instant case by Vice President Gore and the Democratic  Party, in selecting heavily populated, predominately Democratic counties in  which to request manual counts, evinces purposeful discrimination against voters  who reside in non-Democrat-dominated counties. The injury inflicted upon his  opponent's supporters is planned vote dilution-undoubtedly "a pattern that  erodes the democratic process." This injury is certainly actionable, for "the  right to associate with the political party of one's choice is an integral part  of [First and Fourth Amendment] freedoms," Communist Party v. Whitcomb, 414 U.S.  441, 449, 94 S.Ct. 656, 662, 38 L.Ed.2d 635 (1974), and purposeful, systematic  disenfranchisement of a party's members interferes with the ability of the group  to express its ideas as a whole.


72
Given the Florida Supreme Court's endorsement of what I have been calling the  selective dimple model, I feel confident in saying that planned vote dilution by  use of selective manual counts will not be an isolated event in Florida's  statewide elections.52 Furthermore, that such action is advocated by the State  in its statutory election system, and sanctioned when the vote totals are  certified by the state Election Canvassing Commission is, I believe, sufficient  to deem it state action for purposes of section 1983. Where there exists such a  state sanctioned discriminatory scheme targeting a particular group of voters on  the basis of their political association, relief under the equal protection  clause is not only appropriate, but is required. See Snowden, 321 U.S. at 11, 64  S.Ct. at 402 ("Where discrimination is sufficiently shown, the right to relief  under the equal protection clause is not diminished by the fact that the  discrimination relates to political rights."); see also Shakman v. Democratic  Org., 435 F.2d 267, 270 (7th Cir.1970) ("The equal protection clause secures  from invidious official discrimination the voter's interest in a voice in  government of equal effectiveness with other voters.").

B.

73
In addition to encouraging unlawful discrimination against voters based on their  county of residence or political affiliation, it is clear that Florida's vote  counting scheme for statewide elections unconstitutionally burdens a fundamental  right secured by the Constitution: the freedom of association. "[T]he right of  individuals to associate for the advancement of political beliefs ... rank[s]  among our most precious freedoms." Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct.  5, 10, 21 L.Ed.2d 24 (1968). As explained above, the right to freedom of  association is guaranteed by the First Amendment and protected against state  impairment by the Due Process Clause of the Fourteenth Amendment. See id. at 30-  31, 89 S.Ct. 5.


74
On November 7, plaintiffs expressed their beliefs about who should hold the  office of President of the United States. Similarly, by voting in the national  election, all Bush voters expressed the same sentiment. In other words,  plaintiffs and Bush voters attempted to associate collectively for the  advancement of the belief that George W. Bush should be President of the United  States. The right of association protects this activity of "engag[ing] in  association for the advancement of beliefs and ideas." NAACP v. Alabama ex rel.  Patterson, 357 U.S. 449, 460, 78 S.Ct. 1163, 1171, 2 L.Ed.2d 1488 (1958).


75
By counting the dimpled votes in some but not all counties, the state of Florida  infringes upon the plaintiffs' right, and the right of all voters, to associate  for the advancement of their favored political candidate. See Sowards v. Loudon  County, Tenn., 203 F.3d 426, 432 (6th Cir.2000) (stating "[s]upport of a  political candidate falls within the scope of the right of political  association") and Mariani v. United States, 212 F.3d 761, 771 (3d Cir.2000)  (stressing "the right to association through support of the candidate of one's  choice").53 Consider, for example, a Bush voter in Brevard County whose vote was  counted by the vote tabulating machine; his right to political association is  diminished when other votes for Bush are not counted. Just as plaintiffs'  freedom of association "encompasses 'the right to associate with the political  party of one's choice,' " see Buckley v. Valeo, 424 U.S. 1, 15, 96 S.Ct. 612,  633, 46 L.Ed.2d 659 (1976), plaintiffs' right also entails the freedom to  associate with like-minded voters in support of a candidate of their choice.


76
By decided that dimples were valid votes, but that those votes would be  counted only in counties selected by the candidates, the Florida Supreme Court's  decision disenfranchised dimple voters in the remaining counties and thereby  trampled the right of association enjoyed by plaintiffs and all Florida voters. The selective dimple model inhibits voters from demonstrating their true  electoral strength. By interfering with plaintiffs' ability to associate with  other Bush voters so as to "enhance their political effectiveness as a group,"  see Patriot Party of Allegheny Cty. v. Allegheny County Dep't of Elections, 95  F.3d 253, 262 (3d Cir.1996) (citing Anderson v. Celebrezze, 460 U.S. 780, 794,  103 S.Ct. 1564, 1572-73, 75 L.Ed.2d 547 (1983)), the selective dimple model  denies plaintiffs' and other Bush voters the fruits of their association, to  wit: their political impact.54  See Republican Party of Conn. v. Tashjian, 770  F.2d 265, 278 (2d Cir.1985) (explaining "[t]the Williams Court intimated that a  statutory regime denying a group the fruit of their association-political  impact-runs afoul of the first amendment no less than one precluding association  itself") (quoting L. Tribe, American Constitutional Law 779 (1978)).


77
"Of course, it is immaterial whether the beliefs sought to be advanced by  association pertain to political, economic, religious or cultural matters, and  state action which may have the effect of curtailing the freedom to associate is  subject to the closest scrutiny." NAACP v. Alabama ex rel. Patterson, 357 U.S.  449, 460, 78 S.Ct. 1163, 1171, 2 L.Ed.2d 1488 (1958). As such, this  constitutional right may be limited only when "a compelling state interest in  the regulation of a subject within the State's constitutional power to regulate  exists." NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 341, 9 L.Ed.2d 405  (1963); see also Williams, 393 U.S. at 31, 89 S.Ct. at 11. I can find no  compelling interest in Florida's vote-counting scheme that counts some valid  votes but not others. See Williams, 393 U.S. at 32-33, 89 S.Ct. at 11  ("explaining that due process requires that the state accomplish its goal of  administering elections narrowly and fairly to avoid diluting these fundamental  liberties"); see also Riddell v. National Democratic Party, 508 F.2d 770, 776-77  (5th Cir.1975) (citing Kusper v. Pontikes, 414 U.S. 51, 57, 94 S.Ct. 303, 307,  38 L.Ed.2d 260 (1973) (stating " '[t]he states may not infringe upon basic  constitutional protections' and 'unduly restrictive state election laws may so  impinge upon freedom of association as to run afoul of the First and Fourteenth  Amendments' ")). Accordingly, I would hold that the state of Florida's current  election scheme infringes upon plaintiffs' right to association in violation of  the First and Fourteenth Amendments.

V.
A.

78
The majority holds that plaintiffs have failed to demonstrate an irreparable  injury, and thus we need not consider the likelihood of success on the merits.  This holding can mean one of two things: either the majority is contending that  plaintiffs have suffered no injury, or that the injury that has been suffered is  reparable. We consider each of these possibilities in turn.


79
If the majority is resting its decision on the ground that plaintiffs have  suffered no injury, then it has agreed with the argument of the appellees and  the Attorney General that an injury does not exist in this case because  plaintiffs voted for the putative winner, George W. Bush. In other words, unless  a voter cast his vote for a losing candidate, the voter cannot be found to have  suffered any cognizable constitutional injury-the existence of his  constitutional right is dependent upon the outcome of the election. It defies  common sense, however, to suggest that a voter has no cause of action for the  debasement of his vote, and the consequent denial of the equal protection of the  laws, unless his candidate has lost the election.


80
Once it is clear that plaintiffs' constitutional rights are not dependent upon  the outcome of the election, the question becomes whether and when plaintiffs  suffered any redressable injury. I contend that the injury to the voters in the  instant case occurred once the time limit for requesting manual recounts had  expired, and at least one but not all counties had certified results containing  manual recounts conducted pursuant to  102.166.55 It was at that moment we  could be sure that some voters had been disenfranchised, while others had  suffered a debasement of their vote by the selective addition of dimpled votes  to the total. Thus, it is clear under federal law and under the facts of this  case that plaintiffs have suffered a constitutional injury.


81
Perhaps, then, the majority did not mean to say that plaintiffs suffered no  injury, but that whatever injury they may have suffered was not irreparable. It  was posited to the court during oral argument that even if plaintiffs had been  injured, they still had adequate redress in the state courts.56 This is a wholly  fallacious argument. A voter may bring a contest suit in state court on the  ground that legal votes were excluded or illegal votes included, but must show  that such action was sufficient to "change or place in doubt the result of the  election." Fla. Stat.  102.168(3)(c). Clearly, then, a Bush voter could not  maintain a contest suit-he could neither allege nor establish that the inclusion  of other legal votes, or the exclusion of illegal votes, would change the  outcome of the election.57 The state remedy, therefore, is no remedy at all for  voters who have suffered constitutional injury while attempting to vote for the  winning candidate.58


82
Not only is plaintiffs' injury not redressable by the state courts, but it  continues to compound itself by the day. The uncertainty regarding the integrity  of the presidential election in Florida has cast a pall of illegitimacy over the  entire process. If the federal constitutional principle is that plaintiffs have  a cause of action without having to show that their candidate lost, but should  have won, there is no other remedy available. The constitutional injury has been  suffered and is not ameliorated by inaction. Plaintiffs have no viable recourse  in the state courts. The constitutional question is before us, and time is of  the essence.

B.

83
This case is before our court as an appeal of a district court order denying a  motion for a preliminary injunction. Had nothing of relevance transpired since  the district court issued its order, we would simply ask whether, given the  record before it, the district court abused its discretion in denying relief.  See Panama City Med. Diagnostic v. Williams, 13 F.3d 1541, 1545 (11th  Cir.1994).59 This is the track the majority chooses to take.


84
However, many events of relevance have taken place since the district court made  its ruling. This court has been apprised of these events by the parties'  supplemental filings and oral argument. Most important of these subsequent  events is the Florida Supreme Court's definitive interpretation of the Florida  system of conducting state-wide elections: Florida employs the selective dimple  model.60 This interpretation has crystalized plaintiffs' claims into pure  questions of law. This court can and should determine-without the necessity of  further proceedings in the district court-whether the selective dimple model has  deprived plaintiffs of fundamental constitutional rights. Instead, the majority  elects to act as if the situation had not changed, as if we had not asked to be  updated on ongoing developments, and as if there is no constitutional violation  and injury at all.

C.

85
When a case is on appeal from the denial of a preliminary injunction, it may be  reviewed on the merits "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." Thornburgh v. American College of Obstetricians &  Gynecologists, 476 U.S. 747, 757, 106 S.Ct. 2169, 2177, 90 L.Ed.2d 779 (1986),  rev'd on other grounds by Planned Parenthood of Southeastern Pennsylvania v.  Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992); Donovan v.  Bierwirth, 680 F.2d 263, 270 (2d Cir.1982) (ruling on the merits of an  injunction, in an appeal from the grant of a preliminary injunction, because the  "quarrel is over the legal standard and its application to facts not seriously  in dispute"). In the instant case, intervening events have narrowed the issues  in this appeal to pure questions of constitutional law.


86
To obtain a permanent injunction, as opposed to a preliminary injunction,  plaintiffs must show not just "a substantial likelihood of success on the  merits"-the first of four requirements for a preliminary injunction-but must  demonstrate actual success on the merits. See Amoco Prod. Co. v. Village of  Gambell, Alaska, 480 U.S. 531, 546 n. 12, 107 S.Ct. 1396, 1404 n. 12, 94 L.Ed.2d  542 (1987). My analysis reveals, beyond any doubt, that the state of Florida has  infringed plaintiffs' rights under the First and the Fourteenth Amendments.  Moreover, there can be no doubt that plaintiffs' injury is real and ongoing. Accordingly, there is no need to remand this case to the district court for  further proceedings. See Clements Wire & Mfg. Co. v. NLRB, 589 F.2d 894 (5th  Cir.1979) (ruling on the merits of a claim, even though the appeal related only  to a preliminary injunction, where it was clear that one side could not  prevail);61 Illinois Council on Long Term Care v. Bradley, 957 F.2d 305, 310  (7th Cir.1992) ("Since plaintiffs cannot win on the merits, there is no point in  remanding the case for further proceedings."). To remand now is a waste of  judicial energy and resources and withholds from plaintiffs the relief they are  entitled to receive at this very moment. See Thornburgh, 476 U.S. at 757, 106  S.Ct. at 2177 (holding that a court of appeals' usual limitation to review of a  preliminary injunction for abuse of discretion "is a rule of orderly judicial  administration, not a limit on judicial power"); Doe v. Sundquist, 106 F.3d 702,  707 (6th Cir.1997) ("The sort of judicial restraint that is normally warranted  on interlocutory appeals does not prevent us from reaching clearly defined  issues in the interest of judicial economy.").


87
I would direct the district court to enjoin the Secretary of State and/or  Elections Canvassing Commission to issue amended vote certifications under Fla.  Stat.  102.121 and 103.011 that do not contain the results of manual recounts  conducted in response to a candidate or political party's request under Fla.  Stat.  102.166 (namely Volusia, Broward, Miami-Dade and Palm Beach Counties). I  would further enjoin the Secretary of State and/or the Elections Canvassing  Commission from issuing any future certification that includes manual recounts  requested by a candidate or political party in select counties pursuant to Fla.  Stat.  102.166.


88
I respectfully dissent.



NOTES:


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


2
   These numbers did not include vote totals received from overseas. Florida law  permits its residents who are currently located overseas to have their ballots  counted if the ballots arrive in Florida within ten days of the date of election  provided the ballot is either "postmarked or signed and dated" no later than the  date of election. Fl. Admin. Code Ann. r. 1S-2.013(2), (7).


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


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


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


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


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


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


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


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


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


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


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


14
   Volusia County produced 98 net additional votes for Vice President Gore. Broward  County produced 567 net additional votes for Vice President Gore.


15
   Of the remaining two counties, one county uses mechanical lever voting machines  and one county counts all votes by hand. Mechanical lever voting machines record  votes on a counter wheel when voters pull a lever after making their voting  choices, but no paper is produced.


16
   Twenty-four counties use punch card voting systems. A punch card ballot is a  paper card bearing perforated punching holes that the voter inserts into a jig  labeled with the candidates' names. When properly inserted into the jig, the  perforated punching holes on the card are aligned with holes in the jig next to  the candidates' names. To vote, the voter pushes a blunt-tipped stylus through  the hole in the jig next to the desired candidate's name, punching out the  small, perforated bit of the card (the "chad") that is aligned with the hole in  the jig. Once a voter has voted in all of the races for which he cares to vote,  he deposits the ballot into the ballot box.
Forty-one counties use mark-sense voting systems. In counties that use marksense  technology, voters record their votes by using a pen or pencil to fill in  geometric figures (circles, ovals, squares, or rectangles) next to the  candidates or issues for which they wish to vote. Marksense vote tabulating  machines use optical scanning technology to detect the darkened figures and  count the votes accordingly.
I recognize that Brevard County, the county in which all of the plaintiffs  before us reside, uses the marksense technology in its vote tabulating machines.  Nevertheless, the same difficulties that arise in the marking and counting of  votes on punch card ballots and equipment also arise with the marksense ballots  and equipment.


17
   Some voters also return "overvoted" ballots which have multiple votes cast in a  single contest where only one vote is appropriate.


18
   The Florida statutory election system provides for both an automatic recount of  votes in certain close races and for candidate and voter protest of the election  returns. Neither of these provisions, however, affects the baseline system. The  automatic recount provision requires a recount of all votes in a race decided  after the first count by one-half of one percent or less. Fla. Stat.   102.141(4). Since this recount is a non-discretionary repeat of the initial  count, I deem it to be nothing more than a re-do of the first machine count. The  protest provision found in section 102.166(1)-(2) permits any candidate or voter  to file a protest with the appropriate canvassing board, but does not provide  any process or remedy for such a protest. Therefore this protest provision is,  in my view, essentially meaningless.
Further, after the last county canvassing board has certified its election  results, an unsuccessful candidate, an elector qualified to vote in the  election, or any taxpayer may bring a judicial contest of the election. Fla.  Stat.  102.168. The contest complaint must be filed within ten days after the  last county canvassing board certifies the results of the election being  contested, Fla. Stat.  102.168(2), and must set forth the grounds on which the  contest is made, Fla. Stat.  102.168(3). Section 102.168(3)(c) establishes that  a valid ground for contesting an election includes, "[r]eceipt 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." As a remedy, the circuit judge is  permitted to "fashion such orders as he or she deems necessary to ensure that  each allegation in the complaint is investigated, ... to prevent or correct any  alleged wrong, and to provide any relief appropriate under such circumstances."  Fla Stat.  102.168(8).


19
   Instructions to voters in Palm Beach County, a county that uses punch card  technology, read: "After voting, check your ballot card to be sure your voting  sections are clearly and cleanly punched and there are no chips left hanging on  the back of the card." The instructions in Broward County, also a punch card  county, read: "To vote, hold the stylus vertically. Punch the stylus straight  down through the ballot card for the candidates or issues of your choice."


20
   The Florida statutory election system includes a provision for the counting of  properly cast votes that are not detected by the vote tabulating machine. If the  vote tabulating machine does not record a properly cast vote for one or more  contests on the ballot because the ballot was damaged or defective, Florida law  requires that vote to be counted and added to the machine tabulation of votes.  Fla. Stat.  101.5614(5). If improperly marked ballots (such as punch cards  bearing indented, but not detached, chads) are regarded as damaged or defective,  then the initial ballot count in each county would not be complete until every  ballot the tabulating machine reads as undervoted (including ballots read as  totally blank) was counted in accordance with section 101.5614(5). The  canvassing boards do not treat improperly marked ballots as damaged or defective  when they perform their initial machine counts; they rely exclusively on the  machine tabulation of votes.


21
   I describe these three statutory alternatives in supra Part I.A.2.


22
   The Florida Supreme Court stated that " 'error in the vote tabulation' includes  errors in the failure of the voting machinery to read a ballot and not simply  errors resulting from the voting machinery." Harris, at  .


23
   The Florida Supreme Court acknowledged that it was discarding the machine model  supported by the Division of Elections, ruling that: "Although error cannot be  completely eliminated in any tabulation of the ballots, our society has not yet  gone so far as to place blind faith in machines.... Thus, we find that the  Division [of Election's] opinion ... is contrary to the plain language of the  statute." Id. at .


24
   The Court concluded that there has been a vote tabulation error if there is "a  discrepancy between the number of votes determined by a voter tabulation system  and the number of voters determined by a manual count." Id. at .


25
   For example, the court did not require that the canvassing boards consider such  circumstantial evidence as the instructions to the voter, or the physical  appearance of the remainder of the ballot (including whether the voter clearly  marked his choices for candidates in other races).


26
   For instance, Florida Circuit Court Judge Jorge LaBarga, in a Declaratory Order,  stated that:
[T]he Palm Beach Canvassing Commission has the discretion to utilize whatever  methodology it deems proper to determine the true intention of the voter and it  should not be restricted in the task. To that end, the present policy of a per  se exclusion of any ballot that does not have a partially punched or hanging  chad, is not in compliance with the law.
Florida Democratic Party v. Palm Beach County Canvassing Bd.


27
   I recognize the ballots rejected the tabulating machines as overvoted may also  be deemed to contain valid expressions of voter intent on manual inspection.  While I restrict my explication of the vote counting model that emerged from  Harris to undervoted ballots, the model, and the concern it raises, are equally  applicable to the attribution of valid voter intent to overvoted ballots.


28
   In saying "dimple votes," I am referring to any mark on either a punch card or  marksense ballot that was not made according to the directions for casting a  proper vote. Such improper markings are not read by the vote tabulating  machines, but may be construed by some people as giving insight into the voter's  intent upon manual inspection.


29
   Fla. Stat.  102.166(4) ("Any candidate whose name appeared on the ballot [or  his political party] ... may file a written request with the county canvassing  board for a manual recount.").


30
   I refer to the vote counting model that emerged from the Florida Supreme Court's  decision in Harris as the selective dimple model because the model contemplates  that dimple votes will be counted only in those counties selected by a candidate  or his political party for a manual recount.


31
   The undesirable implications of the selective dimple model, discussed in infra  Part IV, apply only in statewide or multi-county elections.


32
   In most Florida counties, all members of the canvassing board will be elected  officials.


33
   In reality, the candidate will probably receive a higher proportion of the vote  in a manual count because the county canvassing board has unfettered discretion  as to what constitutes sufficient voter intent to amount to a vote. Since  candidates are most likely to request and be granted manual recounts in counties  where the canvassing board is dominated by political allies, the canvassing  board will likely lean, when intent is difficult to discern, to finding a voter  intended to vote for the candidate who requested the count.


34
   For example, assume that five percent of voters statewide cast dimple votes. In  a county where 1,000 ballots were cast, a candidate will likely have only 50  ballots from which he can hope to pick up votes if he requests that dimple votes  be counted. In a county where 10,000 total ballots were cast, a candidate will  likely have 500 ballots from which he can hope to pick up additional votes by  requesting that dimple votes be counted.


35
   Fla. Stat.  102.166(4)(c) (providing no standards for determining whether a  candidate's request for a manual recount should be granted, but rather stating  simply that "[t]he county canvassing board may authorize a manual recount").


36
   Section 102.166(7) describes the procedures to be followed in the conduct of a  "manual recount" of ballots and provides simply that the canvassing board's  objective in evaluating ballots is "to determine the voter's intent." Fla. Stat.   102.166(7)(b). Evidence of intent that a canvassing board might consider in  deciding whether an indentation is a vote includes the instructions given to  voters on how to properly cast a vote, examination of how the voter marked the  ballot in other races, and whether the other votes cast on the ballot indicate  an attempt to vote party line.


37
   The board has three options in the case of an "error in the vote tabulation,"  including a county-wide manual recount, as discussed supra Part I.A.2.


38
   Unless, of course, the candidate chose a densely populated county in which he  carried a vast minority of the machine-counted vote-a highly unlikely strategy.


39
   Implicit in the selective dimple model is the propensity for candidate  gaming-treating some voters like pawns in a chess match. Each candidate will try  to maximize the number of dimple votes counted for him, while minimizing the  number of dimple votes gained by his opponent. To that end, a candidate will  gladly sacrifice the dimple votes of supporters who cast those votes in counties  that the machine tabulation indicates were carried by his opponent. Those dimple  votes, and the voters who cast them, are the pawns-they are throwaways-that the  candidate will sacrifice to advance his effort to have dimple votes counted only  in select, favorable counties where he stands to achieve a net gain if dimple  votes are counted.


40
   As described in Part II.B.2, supra, under the selective dimple model the vote  tabulating machine acts as a screener, recording votes that were properly cast,  but does not count all valid votes.


41
   In so doing, the Secretary of State must take steps to "[p]rovide training to  all affected state agencies on the necessary procedures for proper  implementation of [the election laws]." Fla. Stat.  97.012(8) (2000).


42
   The Division of Elections shall provide advisory opinions when requested by any  supervisor of elections, candidate, local officer having election-related  duties, political party, political committee, committee of continuous existence,  or other person or organization engaged in political activity, relating to any  provisions or possible violations of Florida election laws with respect to  actions such supervisor, candidate, local officer having election-related  duties, political party, committee, person, or organization has taken or  proposes to take.
Fla. Stat.  106.23(2).


43
   For the instructions at the polling places in Palm Beach County, for example,  see supra note 19. Given these or similar instructions, it was reasonable for  voters to believe that the only marking of a ballot that would be counted as a  valid vote would be the complete punching and removal of a chad from the ballot.  Presentation of a ballot with these instructions is analogous to the offer and  acceptance in unilateral contract formation, where the offeror instructs the  offeree on how to accept the offer, and only that method of acceptance creates a  valid contract. The offeree knows that he has not accepted the contract if he  has made any indications of intended acceptance other than strict compliance  with the method specified by the offeror. Similarly, the county instructs voters  how to mark their ballots to cast a vote; reasonable voters can expect that they  must comply with those instructions to cast a valid vote.


44
   I note in passing that significant First Amendment concerns are raised when  political speech in the form of a vote is attributed to a person who intended to  refrain from speaking. See Pacific Gas & Elec. Co. v. Public Util. Comm'n, 475  U.S. 1, 16, 106 S.Ct. 903, 912, 89 L.Ed.2d 1 (1986) ("[T]he choice to speak  includes within it the choice of what not to say."). For instance, consider a  voter who intended not to vote in the contest for President/Vice President on  the ballot. In the process of voting in other contests, he may have  inadvertently placed the stylus on the hole for the contest of President/Vice  President, thereby leaving an indentation. Relying on the instructions that  require the chad to be "cleanly punched ... [with] no chips left hanging," that  voter may not have requested a new ballot. The application of the selective  dimple model leaves open the very real possibility that a county canvassing  board attributes speech to this voter by misreading his indentation as a vote.  Despite this possible constitutional infringement, it is impossible to determine  which voter's "dimples" were counted, and which were disregarded as non-votes.


45
   In Roe, there was no concern that the intent of the voters who cast the  contested ballots would be misconstrued; the voter's intent was unambiguous. Roe  I, 43 F.3d at 581. Counting the contested votes in that case would have diluted  valid votes solely because the invalid votes were executed improperly.


46
   Notably, however, the court inquired whether the candidates would want to  request a recount in other counties despite the running of the time period, and  the candidates chose not to make any requests. Harris, --- So.2d at -- --, n. 56  ("At oral argument, we inquired as to whether the presidential candidates were  interested in our consideration of a reopening of the opportunity to request  recounts in any additional counties. Neither candidate requested such an  opportunity."). One wonders whether, had the candidates accepted the Florida  Supreme Court's offer to reopen the time period to request manual recounts in  other counties, county canvassing boards would nevertheless have retained  discretion to refuse a candidate's request.


47
   This model for "recounting" votes in certain counties not only relies on  candidates to select the counties, but it effectively restricts the candidates  who may obtain a recount to the major party candidates. This is so because  section 102.166(5) only permits manual counts if the board finds that it "could  affect the outcome of the election." Third party candidates for whom vote totals  are critical if they wish to obtain federal funds for their party in the next  election are left out of this process and their voters are left relying on other  candidates to choose their county. The same problem exists under the provision  for contesting elections. Fla. Stat.  102.168(3)(c). If the ground for the  contest is that legal votes were not counted, the contest provision requires  that a sufficient amount of the legal votes not counted "change or place in  doubt the result of the election" before the contest may proceed. Fla. Stat.   102.168(3)(c).


48
   The front-runner, on the other hand, is seemingly unable to get a county-wide  manual count under the selective dimple model, as he could never show that an  additional number of votes for him "could affect the outcome of the election."  Fla. Stat.  102.166(5).


49
   As noted in my description of the manual count statute, a full manual count  should only occur when the sampling of precincts shows "an error in vote  tabulation that could affect the outcome of the election." Fla. Stat.   102.166(5). The number of dimpled ballots generated in a sparsely populated  county will almost certainly never be enough to make the requisite showing, thus  the voters in small Florida counties-like the kid with two left feet-will never  be invited to the big dance.


50
   It is well-established that "to meet the standing requirements of Article III  ... a plaintiff's complaint must establish that he has a 'personal stake' in the  alleged dispute, and that the alleged injury is particularized as to him.' "  Raines v. Byrd, 521 U.S. 811, 818-19, 117 S.Ct. 2312, 2317, 138 L.Ed.2d 849  (1997). "Federal courts must hesitate before resolving a controversy, even one  within their constitutional power to resolve, on the basis of rights of third  persons not parties to the litigation." Singleton v. Wulff, 428 U.S. 106, 113,  96 S.Ct. 2868, 2874, 49 L.Ed.2d 826 (1976). The plaintiffs in the instant case  have not specifically alleged that they were disenfranchised by the state  election scheme, and thus arguably may not have a "personal" equal protection  claim in the nature discussed supra Part IV.A.1. While a party may not  ordinarily claim standing to vindicate the constitutional rights of some third  party, this is a prudential, rather than jurisdictional, rule of practice. The  rule has been relaxed in cases where a plaintiff alleging his own injury is  asserting "concomitant rights of third parties that would be 'diluted or  adversely affected' should [his] constitutional challenge fail." Craig v. Boren,  429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) (allowing saloon keeper  suffering economic injury to raise equal protection rights of young men to buy  beer at the same age as women); see also Carey v. Population Servs. Int'l, 431  U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977) (allowing corporate seller of  contraceptives to challenge state statute prohibiting sale of contraceptives to  persons under 16 years old); Pierce v. Society of Sisters, 268 U.S. 510, 45  S.Ct. 571, 69 L.Ed. 1070 (1925) (allowing a private and a parochial school to  assert constitutional rights of parents and guardians to direct the upbringing  and education of their children).
The Supreme Court has looked primarily to two factual elements to determine  whether the rule against asserting the rights of third parties should apply in a  particular case:
The first is the relationship of the litigant to the person whose right he seeks  to assert. If the enjoyment of the right is inextricably bound up with the  activity the litigant wishes to pursue, the court at least can be sure that its  construction of the right is not unnecessary in the sense that the right's  enjoyment will be unaffected by the outcome of the suit. Furthermore, the  relationship between the litigant and the third party may be such that the  former is fully, or very nearly, as effective a proponent of the right as the  latter.
Singleton, 428 U.S. at 114-15, 96 S.Ct. at 2874. In the instant case, third  parties' enjoyment of their right of suffrage is "inextricably bound up with the  activity [plaintiffs] wish to pursue"-associating with and preserving the  political strength of their party's supporters. It will be impossible for  plaintiffs to associate with other voting members of their party if those voters  are disenfranchised. As the remedy sought by the plaintiffs will effectively  vindicate the rights of the third parties, the plaintiffs are fully effective as  a proponent for the third party interests.
Finally, I note an additional consideration weighing heavily in favor of  granting plaintiffs third party standing (or standing to raise a personal  disenfranchisement claim): It would be difficult, if not impossible, to know  exactly which voters were disenfranchised by the state election scheme. Even if  voters could remember whether they had dimpled their chads rather than punching  them through, an allegation to that effect would be entirely self-serving and  impossible to corroborate. To require such a showing as an element of standing  would either bar disenfranchisement suits altogether or encourage perjury in the  complaint. Moreover, even those voters who recall dimpling or improperly marking  their ballots cannot prove whether those "votes" were counted. From a prudential  standpoint, therefore, it would be unreasonable to insist that the equal  protection claim could only be raised by such unidentifiable, or indeed  fabricated, plaintiffs. Cf. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449,  459, 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488 (1958) ("The [standing] principle is  not disrespected where constitutional rights of persons who are not immediately  before the Court could not be effectively vindicated except through an  appropriate representative before the Court.").


51
   Indeed, as I have noted, Bush's requests would likely have been futile-no amount  of dimple votes in his favor "could [have] affect[ed] the outcome of the  election." Fla. Stat.  102.166(5).


52
   The Supreme Court's plurality decision in Davis v. Bandemer, 478 U.S. 109, 106  S.Ct. 2797, 92 L.Ed.2d 85 (1986), a political gerrymandering case, does not  undermine my conclusion. Justice White, writing for four members of the Court,  stated that in political gerrymandering cases, an equal protection violation may  be found only where there is evidence of "continued frustration of the will of a  majority of voters or effective denial to a minority of voters of a fair chance  to influence the political process." Id., 478 U.S. at 133, 106 S.Ct. at 2811.
The rationale behind the rule was articulated thus:
[I]n determining the constitutionality of multi-member districts challenged as  racial gerrymanders, ... we have required that there be proof that the  complaining minority "had less opportunity ... to participate in the political  processes and to elect legislators of their choice." ... This participatory  approach to the legality of individual multimember districts is not helpful  where the claim is that such districts discriminate against Democrats, for it  could hardly be said that Democrats, any more than Republicans, are excluded  from participating in the affairs of their own party or from the processes by  which candidates are nominated and elected. For constitutional purposes, the  Democratic claim in this case ... boils down to a complaint that they failed to  attract a majority of voters in the challenged multimember districts. 478 U.S. at 136-37, 106 S.Ct. at 2812-13. Davis is therefore inapposite here,  where the evidence supports the plaintiffs' allegation that voters in  non-Democratic counties are "excluded from participating in the affairs of their  own party" and "from the processes by which candidates are ... elected."


53
   Specifically at issue in these cases were laws relating to political  contributions.


54
   A Gore voter in Brevard County (or any of the non-recount counties) is similarly  affected. One may argue that a Gore voter's right to political association is  not infringed because dimpled votes are being counted in the counties selected  by Vice President Gore. Even so, there are undoubtedly Gore voters who dimpled  their ballots in the counties which did not conduct manual recounts, and those  votes are not being counted. Thus, a Gore voter's right to political association  was abridged also once Florida decided that: (1) dimpled chads are valid votes,  and (2) these votes would be counted only at the candidates' request.


55
   I am not including those manual recounts conducted merely to verify the machine  total.


56
   During oral argument yesterday, the Florida Democratic Party and the Florida  Attorney General contended that because the state has a complex scheme for  contesting elections, lower federal courts have no role in adjudicating even a  voter's federal constitutional claims, such as those set forth by plaintiffs in  this case. The net effect of their argument is that the United States Supreme  Court is the only federal forum available to plaintiffs.


57
   Similarly, a voter who dimpled his ballot in favor of a losing candidate in a  non-recount county will not be able to get his vote counted, unless he can prove  that the inclusion of more legal votes, or the exclusion of illegal votes, could  "change or place in doubt the result of the election." If the candidate for whom  he voted was defeated by a significant margin (such as a third party candidate),  he is effectively precluded from bringing a meritorious suit. This is true even  though minor party voters have a strong associational interest in having all  votes for their candidate counted so that they may obtain matching federal  funding.


58
   I understand, of course, that a section 1983 action, stating the same  constitutional claims as the complaint before us, may be brought in state court.  I do not read the majority opinion, however, to suggest that such recourse is  mandatory, or that plaintiffs must exhaust their state remedies before bringing  their claim to federal court.


59
   Specifically, we would ask first whether the district court erred in holding  that plaintiffs failed to establish the first prerequisite for a preliminary  injunction. This Circuit has established a four-pronged test for a plaintiff to  obtain a preliminary injunction: "(1) a substantial likelihood of success on the  merits; (2) a threat of irreparable injury; (3) that [their] own injury would  outweigh the injury to the nonmovant, and (4) that the injunction would not  disserve the public interest." Tefel v. Reno, 180 F.3d 1286, 1295 (11th  Cir.1999).


60
   The fact that the United States Supreme Court has vacated the Florida Supreme  Court decision which instituted the selective dimple model does not alter the  fact that the selective dimple model has governed the counting of ballots and  the certification of votes in this presidential election.


61
   In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc),  this court adopted as binding precedent all of the decisions of the former Fifth  Circuit handed down prior to the close of business on September 30, 1981.



89
BIRCH, Circuit Judge, dissenting; in which TJOFLAT and DUBINA, Circuit Judges,  join:


90
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.


91
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


92
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:


93
[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.


94
Shirley Anita Chisholm, Unbought and Unbossed, 1970. To respond in that way  would be a mistake.


95
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.


96
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.


97
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.


98
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.


99
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.


100
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.



NOTES:


1
   See Moore v. Ogilvie, 394 U.S. 814, 818-19, 89 S.Ct. 1493, 1496, 23 L.Ed.2d 1  (1969) (discussing the applicability of the Fourteenth Amendment to the  nominating process for presidential candidates).


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).


3
   See Fla. 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); Fla. Stat. Ann.  124.01(2)  (providing for popular election of county commissioners); Fla. Const. Art. 8,   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 Entertainment Co., 98 F.3d 33, 34  (2d Cir.1996) (irreparable harm presumed when plaintiff establishes a prima  facie case of copyright infringement).


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, 75 L.Ed.2d  547 (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.


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.


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.


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.



101
DUBINA, Circuit Judge, dissenting, in which TJOFLAT and BIRCH, Circuit Judges  join:


102
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, 476 U.S. 747, 106 S.Ct. 2169, 90 L.Ed.2d 779  (1986).


103
As to the merits of this case, the legal principles set forth in the cases of  Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (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.


104
CARNES, Circuit Judge dissenting, in which TJOFLAT, BIRCH and DUBINA, Circuit  Judges, join:


105
For the reasons set out in my opinion in Siegel v. Lepore, --- F.3d ----, I  dissent.

