One of the most controversial presidential elections in the
history of the United States ended with one of the most controversial decisions
in the history of the Supreme Court of the United States. The Court’s 5 to 4
decision on December 12, 2000, effectively ended the disputed contest between
Republican Party candidate George W. Bush and Democratic Party candidate Al Gore
and gave Bush the 270 Electoral College votes needed to win the presidency. The
majority decision, fashioned by the Court’s conservative bloc, is followed by
stinging dissents from the other four justices.
Bush v Gore
GEORGE W. BUSH, ET AL., PETITIONERS v. ALBERT
GORE, JR., ET AL.
ON WRIT OF CERTIORARI TO THE FLORIDA SUPREME COURT
[December 12, 2000]
PER CURIAM.
On December 8, 2000, the Supreme Court of Florida
ordered that the Circuit Court of Leon County tabulate by hand 9,000 ballots in
Miami-Dade County. It also ordered the inclusion in the certified vote totals of
215 votes identified in Palm Beach County and 168 votes identified in Miami-Dade
County for Vice President Albert Gore, Jr., and Senator Joseph Lieberman,
Democratic Candidates for President and Vice President. The Supreme Court noted
that petitioner, Governor George W. Bush, asserted that the net gain for Vice
President Gore in Palm Beach County was 176 votes, and directed the Circuit
Court to resolve that dispute on remand. ___ So. 2d, at ___ (slip op., at 4, n.
6). The court further held that relief would require manual recounts in all
Florida counties where so-called “undervotes” had not been subject to manual
tabulation. The court ordered all manual recounts to begin at once. Governor
Bush and Richard Cheney, Republican Candidates for the Presidency and Vice
Presidency, filed an emergency application for a stay of this mandate. On
December 9 we granted the application, treated the application as a petition for
a writ of certiorari, and granted certiorari. Post, p. ___.
The proceedings leading to the present controversy are
discussed in some detail in our opinion in Bush v. Palm Beach County
Canvassing Bd., ante, p. ____ (per curiam) (Bush I). On November 8,
2000, the day following the Presidential election, the Florida Division of
Elections reported that petitioner, Governor Bush, had received 2,909,135 votes,
and respondent, Vice President Gore, had received 2,907,351 votes, a margin of
1,784 for Governor Bush. Because Governor Bush’s margin of victory was less than
“one-half of a percent . . . of the votes cast,” an automatic machine recount
was conducted under §102.141(4) of the Florida Election Code, the results of
which showed Governor Bush still winning the race but by a diminished margin.
Vice President Gore then sought manual recounts in Volusia, Palm Beach, Broward,
and Miami-Dade Counties, pursuant to Florida’s election protest provisions. Fla.
Stat. §102.166 (2000). A dispute arose concerning the deadline for local county
canvassing boards to submit their returns to the Secretary of State (Secretary).
The Secretary declined to waive the November 14 deadline imposed by statute.
§§102.111, 102.112. The Florida Supreme Court, however, set the deadline at
November 26. We granted certiorari and vacated the Florida Supreme Court’s
decision, finding considerable uncertainty as to the grounds on which it was
based. Bush I, ante, at ___–___ (slip op., at 6–7). On December 11, the
Florida Supreme Court issued a decision on remand reinstating that date. ___ So.
2d ___, ___ (slip op. at 30–31).
On November 26, the Florida Elections Canvassing
Commission certified the results of the election and declared Governor Bush the
winner of Florida’s 25 electoral votes. On November 27 Vice President Gore,
pursuant to Florida’s contest provisions, filed a complaint in Leon County
Circuit Court contesting the certification. Fla. Stat. §102.168 (2000). He
sought relief pursuant to §102.168(3)(c), which provides that “[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” shall be grounds for a
contest. The Circuit Court denied relief, stating that Vice President Gore
failed to meet his burden of proof. He appealed to the First District Court of
Appeal, which certified the matter to the Florida Supreme Court.
Accepting jurisdiction, the Florida Supreme Court
affirmed in part and reversed in part. Gore v. Harris, ___ So. 2d.
____ (2000). The court held that the Circuit Court had been correct to reject
Vice President Gore’s challenge to the results certified in Nassau County and
his challenge to the Palm Beach County Canvassing Board’s determination that
3,300 ballots cast in that county were not, in the statutory phrase, “legal
votes.”
The Supreme Court held that Vice President Gore had
satisfied his burden of proof under §102.168(3)(c) with respect to his challenge
to Miami-Dade County’s failure to tabulate, by manual count, 9,000 ballots on
which the machines had failed to detect a vote for President (“undervotes”). ___
So. 2d., at ___ (slip op., at 22–23). Noting the closeness of the election, the
Court explained that “[o]n this record, there can be no question that there are
legal votes within the 9,000 uncounted votes sufficient to place the results of
this election in doubt.” Id., at ___ (slip op., at 35). A “legal vote,”
as determined by the Supreme Court, is “one in which there is a ‘clear
indication of the intent of the voter.’” Id., at ____ (slip op., at 25).
The court therefore ordered a hand recount of the 9,000 ballots in Miami-Dade
County. Observing that the contest provisions vest broad discretion in the
circuit judge to “provide any relief appropriate under such circumstances,” Fla.
Stat. §102.168(8) (2000), the Supreme Court further held that the Circuit Court
could order “the Supervisor of Elections and the Canvassing Boards, as well as
the necessary public officials, in all counties that have not conducted a manual
recount or tabulation of the undervotes . . . to do so forthwith, said
tabulation to take place in the individual counties where the ballots are
located.” ____ So. 2d, at ____ (slip op., at 38).
The Supreme Court also determined that Palm Beach County
and Miami-Dade County, in their earlier manual recounts, had identified a net
gain of 215 and 168 legal votes, respectively, for Vice President Gore. Id.,
at ___ (slip op., at 33–34). Rejecting the Circuit Court’s conclusion that
Palm Beach County lacked the authority to include the 215 net votes submitted
past the November 26 deadline, the Supreme Court explained that the deadline was
not intended to exclude votes identified after that date through ongoing manual
recounts. As to Miami-Dade County, the Court concluded that although the 168
votes identified were the result of a partial recount, they were “legal votes
[that] could change the outcome of the election.” Id., at (slip op., at
34). The Supreme Court therefore directed the Circuit Court to include those
totals in the certified results, subject to resolution of the actual vote total
from the Miami-Dade partial recount.
The petition presents the following questions: whether
the Florida Supreme Court established new standards for resolving Presidential
election contests, thereby violating Art. II, §1, cl. 2, of the United States
Constitution and failing to comply with 3 U. S. C. §5, and whether the use of
standardless manual recounts violates the Equal Protection and Due Process
Clauses. With respect to the equal protection question, we find a violation of
the Equal Protection Clause.
II
A
The closeness of this election, and the multitude of
legal challenges which have followed in its wake, have brought into sharp focus
a common, if heretofore unnoticed, phenomenon. Nationwide statistics reveal that
an estimated 2% of ballots cast do not register a vote for President for
whatever reason, including deliberately choosing no candidate at all or some
voter error, such as voting for two candidates or insufficiently marking a
ballot. See Ho, More Than 2M Ballots Uncounted, AP Online (Nov. 28, 2000);
Kelley, Balloting Problems Not Rare But Only In A Very Close Election Do
Mistakes And Mismarking Make A Difference, Omaha World-Herald (Nov. 15, 2000).
In certifying election results, the votes eligible for inclusion in the
certification are the votes meeting the properly established legal
requirements.
This case has shown that punch card balloting machines
can produce an unfortunate number of ballots which are not punched in a clean,
complete way by the voter. After the current counting, it is likely legislative
bodies nationwide will examine ways to improve the mechanisms and machinery for
voting.
B
The individual citizen has no federal constitutional
right to vote for electors for the President of the United States unless and
until the state legislature chooses a statewide election as the means to
implement its power to appoint members of the Electoral College. U. S. Const.,
Art. II, §1. This is the source for the statement in McPherson v.
Blacker, 146 U. S. 1, 35 (1892), that the State legislature’s power to
select the manner for appointing electors is plenary; it may, if it so chooses,
select the electors itself, which indeed was the manner used by State
legislatures in several States for many years after the Framing of our
Constitution. Id., at 28–33. History has now favored the voter, and in
each of the several States the citizens themselves vote for Presidential
electors. When the state legislature vests the right to vote for President in
its people, the right to vote as the legislature has prescribed is fundamental;
and one source of its fundamental nature lies in the equal weight accorded to
each vote and the equal dignity owed to each voter. The State, of course, after
granting the franchise in the special context of Article II, can take back the
power to appoint electors. See id., at 35 (“[T]here is no doubt of the
right of the legislature to resume the power at any time, for it can neither be
taken away nor abdicated”) (quoting S. Rep. No. 395, 43d Cong., 1st
Sess.).
The right to vote is protected in more than the initial
allocation of the franchise. Equal protection applies as well to the manner of
its exercise. Having once granted the right to vote on equal terms, the State
may not, by later arbitrary and disparate treatment, value one person's vote
over that of another. See, e.g., Harper v. Virginia Bd. of Elections,
383 U. S. 663, 665 (1966) (“[O]nce the franchise is granted to the
electorate, lines may not be drawn which are inconsistent with the Equal
Protection Clause of the Fourteenth Amendment”). It must be remembered 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 (1964).
There is no difference between the two sides of the
present controversy on these basic propositions. Respondents say that the very
purpose of vindicating the right to vote justifies the recount procedures now at
issue. The question before us, however, is whether the recount procedures the
Florida Supreme Court has adopted are consistent with its obligation to avoid
arbitrary and disparate treatment of the members of its electorate.
Much of the controversy seems to revolve around ballot
cards designed to be perforated by a stylus but which, either through error or
deliberate omission, have not been perforated with sufficient precision for a
machine to count them. In some cases a piece of the card—a chad—is hanging, say
by two corners. In other cases there is no separation at all, just an
indentation.
The Florida Supreme Court has ordered that the intent of
the voter be discerned from such ballots. For purposes of resolving the equal
protection challenge, it is not necessary to decide whether the Florida Supreme
Court had the authority under the legislative scheme for resolving election
disputes to define what a legal vote is and to mandate a manual recount
implementing that definition. The recount mechanisms implemented in response to
the decisions of the Florida Supreme Court do not satisfy the minimum
requirement for non-arbitrary treatment of voters necessary to secure the
fundamental right. Florida’s basic command for the count of legally cast votes
is to consider the “intent of the voter.” Gore v. Harris, ___ So.
2d, at ___ (slip op., at 39). This is unobjectionable as an abstract proposition
and a starting principle. The problem inheres in the absence of specific
standards to ensure its equal application. The formulation of uniform rules to
determine intent based on these recurring circumstances is practicable and, we
conclude, necessary.
The law does not refrain from searching for the intent
of the actor in a multitude of circumstances; and in some cases the general
command to ascertain intent is not susceptible to much further refinement. In
this instance, however, the question is not whether to believe a witness but how
to interpret the marks or holes or scratches on an inanimate object, a piece of
cardboard or paper which, it is said, might not have registered as a vote during
the machine count. The factfinder confronts a thing, not a person. The search
for intent can be confined by specific rules designed to ensure uniform
treatment.
The want of those rules here has led to unequal
evaluation of ballots in various respects. See Gore v. Harris, ___
So. 2d, at ___ (slip op., at 51) (Wells, J., dissenting) (“Should a county
canvassing board count or not count a ‘dimpled chad’ where the voter is able to
successfully dislodge the chad in every other contest on that ballot? Here, the
county canvassing boards disagree”). As seems to have been acknowledged at oral
argument, the standards for accepting or rejecting contested ballots might vary
not only from county to county but indeed within a single county from one
recount team to another.
The record provides some examples. A monitor in
Miami-Dade County testified at trial that he observed that three members of the
county canvassing board applied different standards in defining a legal vote. 3
Tr. 497, 499 (Dec. 3, 2000). And testimony at trial also revealed that at least
one county changed its evaluative standards during the counting process. Palm
Beach County, for example, began the process with a 1990 guideline which
precluded counting completely attached chads, switched to a rule that considered
a vote to be legal if any light could be seen through a chad, changed back to
the 1990 rule, and then abandoned any pretense of a per se rule, only to
have a court order that the county consider dimpled chads legal. This is not a
process with sufficient guarantees of equal treatment.
An early case in our one person, one vote jurisprudence
arose when a State accorded arbitrary and disparate treatment to voters in its
different counties. Gray v. Sanders, 372 U. S. 368 (1963). The
Court found a constitutional violation. We relied on these principles in the
context of the Presidential selection process in Moore v. Ogilvie,
394 U. S. 814 (1969), where we invalidated a county-based procedure that
diluted the influence of citizens in larger counties in the nominating process.
There we observed that “[t]he idea that one group can be granted greater voting
strength than another is hostile to the one man, one vote basis of our
representative government.” Id., at 819.
The State Supreme Court ratified this uneven
treatment. It mandated that the recount totals from two counties,
Miami-Dade and Palm Beach, be included in the certified total. The court also
appeared to hold sub silentio that the recount totals from Broward
County, which were not completed until after the original November 14
certification by the Secretary of State, were to be considered part of the new
certified vote totals even though the county certification was not contested by
Vice President Gore. Yet each of the counties used varying standards to
determine what was a legal vote. Broward County used a more forgiving standard
than Palm Beach County, and uncovered almost three times as many new votes, a
result markedly disproportionate to the difference in population between the
counties.
In addition, the recounts in these three counties were
not limited to so-called undervotes but extended to all of the ballots. The
distinction has real consequences. A manual recount of all ballots identifies
not only those ballots which show no vote but also those which contain more than
one, the so-called overvotes. Neither category will be counted by the machine.
This is not a trivial concern. At oral argument, respondents estimated there are
as many as 110,000 overvotes statewide. As a result, the citizen whose ballot
was not read by a machine because he failed to vote for a candidate in a way
readable by a machine may still have his vote counted in a manual recount; on
the other hand, the citizen who marks two candidates in a way discernable by the
machine will not have the same opportunity to have his vote count, even if a
manual examination of the ballot would reveal the requisite indicia of intent.
Furthermore, the citizen who marks two candidates, only one of which is
discernable by the machine, will have his vote counted even though it should
have been read as an invalid ballot. The State Supreme Court’s inclusion of vote
counts based on these variant standards exemplifies concerns with the remedial
processes that were under way.
That brings the analysis to yet a further equal
protection problem. The votes certified by the court included a partial total
from one county, Miami-Dade. The Florida Supreme Court’s decision thus gives no
assurance that the recounts included in a final certification must be complete.
Indeed, it is respondent’s submission that it would be consistent with the rules
of the recount procedures to include whatever partial counts are done by the
time of final certification, and we interpret the Florida Supreme Court’s
decision to permit this. See ____ So. 2d, at ____, n. 21 (slip op., at 37, n.
21) (noting “practical difficulties” may control outcome of election, but
certifying partial Miami-Dade total nonetheless). This accommodation no doubt
results from the truncated contest period established by the Florida Supreme
Court in Bush I, at respondents’ own urging. The press of time does not
diminish the constitutional concern. A desire for speed is not a general excuse
for ignoring equal protection guarantees.
In addition to these difficulties the actual process by
which the votes were to be counted under the Florida Supreme Court’s decision
raises further concerns. That order did not specify who would recount the
ballots. The county canvassing boards were forced to pull together ad hoc teams
comprised of judges from various Circuits who had no previous training in
handling and interpreting ballots. Furthermore, while others were permitted to
observe, they were prohibited from objecting during the recount.
The recount process, in its features here described, is
inconsistent with the minimum procedures necessary to protect the fundamental
right of each voter in the special instance of a statewide recount under the
authority of a single state judicial officer. Our consideration is limited to
the present circumstances, for the problem of equal protection in election
processes generally presents many complexities.
The question before the Court is not whether local
entities, in the exercise of their expertise, may develop different systems for
implementing elections. Instead, we are presented with a situation where a state
court with the power to assure uniformity has ordered a statewide recount with
minimal procedural safeguards. When a court orders a statewide remedy, there
must be at least some assurance that the rudimentary requirements of equal
treatment and fundamental fairness are satisfied.
Given the Court's assessment that the recount process
underway was probably being conducted in an unconstitutional manner, the Court
stayed the order directing the recount so it could hear this case and render an
expedited decision. The contest provision, as it was mandated by the State
Supreme Court, is not well calculated to sustain the confidence that all
citizens must have in the outcome of elections. The State has not shown that its
procedures include the necessary safeguards. The problem, for instance, of the
estimated 110,000 overvotes has not been addressed, although Chief Justice Wells
called attention to the concern in his dissenting opinion. See ____ So. 2d, at
____, n. 26 (slip op., at 45, n. 26).
Upon due consideration of the difficulties identified to
this point, it is obvious that the recount cannot be conducted in compliance
with the requirements of equal protection and due process without substantial
additional work. It would require not only the adoption (after opportunity for
argument) of adequate statewide standards for determining what is a legal vote
and practicable procedures to implement them, but also orderly judicial review
of any disputed matters that might arise. In addition, the Secretary of State
has advised that the recount of only a portion of the ballots requires that the
vote tabulation equipment be used to screen out undervotes, a function for which
the machines were not designed. If a recount of overvotes were also required,
perhaps even a second screening would be necessary. Use of the equipment for
this purpose, and any new software developed for it, would have to be evaluated
for accuracy by the Secretary of State, as required by Fla. Stat. §101.015
(2000).
The Supreme Court of Florida has said that the
legislature intended the State’s electors to “participat[e] fully in the federal
electoral process,” as provided in 3 U. S. C. §5. ___ So. 2d, at ___ (slip op.
at 27); see also Palm Beach Canvassing Bd. v. Harris, 2000 WL
1725434, *13 (Fla. 2000). That statute, in turn, requires that any controversy
or contest that is designed to lead to a conclusive selection of electors be
completed by December 12. That date is upon us, and there is no recount
procedure in place under the State Supreme Court’s order that comports with
minimal constitutional standards. Because it is evident that any recount seeking
to meet the December 12 date will be unconstitutional for the reasons we have
discussed, we reverse the judgment of the Supreme Court of Florida ordering a
recount to proceed.
Seven Justices of the Court agree that there are
constitutional problems with the recount ordered by the Florida Supreme Court
that demand a remedy. See post, at 6 (SOUTER, J., dissenting); post, at
2, 15 (BREYER, J., dissenting). The only disagreement is as to the remedy.
Because the Florida Supreme Court has said that the Florida Legislature intended
to obtain the safe-harbor benefits of 3 U. S. C. §5, JUSTICE BREYER’s proposed
remedy—remanding to the Florida Supreme Court for its ordering of a
constitutionally proper contest until December 18—contemplates action in
violation of the Florida election code, and hence could not be part of an
“appropriate” order authorized by Fla. Stat. §102.168(8) (2000).
* * *
None are more conscious of the vital limits on judicial
authority than are the members of this Court, and none stand more in admiration
of the Constitution’s design to leave the selection of the President to the
people, through their legislatures, and to the political sphere. When contending
parties invoke the process of the courts, however, it becomes our unsought
responsibility to resolve the federal and constitutional issues the judicial
system has been forced to confront.
The judgment of the Supreme Court of Florida is
reversed, and the case is remanded for further proceedings not inconsistent with
this opinion. Pursuant to this Court’s Rule 45.2, the Clerk is directed to issue
the mandate in this case forthwith.
It is so ordered.
CHIEF JUSTICE REHNQUIST, with whom JUSTICE SCALIA and
JUSTICE THOMAS join, concurring.
We join the per curiam opinion. We write
separately because we believe there are additional grounds that require us to
reverse the Florida Supreme Court’s decision.
We deal here not with an ordinary election, but with an
election for the President of the United States. In Burroughs v.
United States, 290 U. S. 534, 545 (1934), we said: “While presidential electors are
not officers or
agents of the federal government (In re Green, 134
U. S. 377, 379), they exercise federal functions under,
and discharge duties in virtue of authority conferred
by, the Constitution of the United States. The President
is vested with the executive power of the nation.
The importance of his election and the vital character
of its relationship to and effect upon the welfare and
safety of the whole people cannot be too strongly
stated.”
agents of the federal government (In re Green, 134
U. S. 377, 379), they exercise federal functions under,
and discharge duties in virtue of authority conferred
by, the Constitution of the United States. The President
is vested with the executive power of the nation.
The importance of his election and the vital character
of its relationship to and effect upon the welfare and
safety of the whole people cannot be too strongly
stated.”
Likewise, in Anderson v. Celebrezze, 460
U. S. 780, 794–795 (1983) (footnote omitted), we said: “[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.”
In most cases, comity and respect for federalism compel
us to defer to the decisions of state courts on issues of state law. That
practice reflects our understanding that the decisions of state courts are
definitive pronouncements of the will of the States as sovereigns. Cf. Erie
R. Co. v. Tompkins, 304 U. S. 64 (1938). Of course, in ordinary
cases, the distribution of powers among the branches of a State’s government
raises no questions of federal constitutional law, subject to the requirement
that the government be republican in character. See U. S. Const., Art. IV, §4.
But there are a few exceptional cases in which the Constitution imposes a duty
or confers a power on a particular branch of a State’s government. This is one
of them. Article II, §1, cl. 2, provides that “[e]ach State shall appoint, in
such Manner as the Legislature thereof may direct,” electors for
President and Vice President. (Emphasis added.) Thus, the text of the election
law itself, and not just its interpretation by the courts of the States, takes
on independent significance.
In McPherson v. Blacker, 146 U. S. 1
(1892), we explained that Art. II, §1, cl. 2, “convey[s] the broadest power of
determination” and “leaves it to the legislature exclusively to define the
method” of appointment. Id., at 27. A significant departure from the
legislative scheme for appointing Presidential electors presents a federal
constitutional question.
3 U. S. C. §5 informs our application of Art. II, §1,
cl. 2, to the Florida statutory scheme, which, as the Florida Supreme Court
acknowledged, took that statute into account. Section 5 provides that the
State’s selection of electors “shall be conclusive, and shall govern in the
counting of the electoral votes” if the electors are chosen under laws enacted
prior to election day, and if the selection process is completed six days prior
to the meeting of the electoral college. As we noted in Bush v. Palm
Beach County Canvassing Bd., ante, at 6. “Since §5 contains a principle of federal law that
would assure finality of the State’s determination if
made pursuant to a state law in effect before the election,
a legislative wish to take advantage of the ‘safe
harbor’ would counsel against any construction of the
Election Code that Congress might deem to be a
change in the law.”
would assure finality of the State’s determination if
made pursuant to a state law in effect before the election,
a legislative wish to take advantage of the ‘safe
harbor’ would counsel against any construction of the
Election Code that Congress might deem to be a
change in the law.”
If we are to respect the legislature’s Article II
powers, therefore, we must ensure that postelection state-court actions do not
frustrate the legislative desire to attain the “safe harbor” provided by
§5.
In Florida, the legislature has chosen to hold statewide
elections to appoint the State’s 25 electors. Importantly, the legislature has
delegated the authority to run the elections and to oversee election disputes to
the Secretary of State (Secretary), Fla. Stat. §97.012(1) (2000), and to state
circuit courts, §§102.168(1), 102.168(8). Isolated sections of the code may well
admit of more than one interpretation, but the general coherence of the
legislative scheme may not be altered by judicial interpretation so as to wholly
change the statutorily provided apportionment of responsibility among these
various bodies. In any election but a Presidential election, the Florida Supreme
Court can give as little or as much deference to Florida’s executives as it
chooses, so far as Article II is concerned, and this Court will have no cause to
question the court’s actions. But, with respect to a Presidential election, the
court must be both mindful of the legislature’s role under Article II in
choosing the manner of appointing electors and deferential to those bodies
expressly empowered by the legislature to carry out its constitutional
mandate.
In order to determine whether a state court has
infringed upon the legislature’s authority, we necessarily must examine the law
of the State as it existed prior to the action of the court. Though we generally
defer to state courts on the interpretation of state law—see, e.g.,
Mullaney v. Wilbur, 421 U. S. 684 (1975)—there are of course areas
in which the Constitution requires this Court to undertake an independent, if
still deferential, analysis of state law.
For example, in NAACP v. Alabama ex rel.
Patterson, 357 U. S. 449 (1958), it was argued that we were without
jurisdiction because the petitioner had not pursued the correct appellate remedy
in Alabama’s state courts. Petitioners had sought a state-law writ of certiorari
in the Alabama Supreme Court when a writ of mandamus, according to that court,
was proper. We found this state-law ground inadequate to defeat our jurisdiction
because we were “unable to reconcile the procedural holding of the Alabama
Supreme Court” with prior Alabama precedent. Id., at 456. The purported
state-law ground was so novel, in our independent estimation, that “petitioner
could not fairly be deemed to have been apprised of its existence.” Id.,
at 457.
Six years later we decided Bouie v. City of
Columbia, 378 U. S. 347 (1964), in which the state court had held, contrary
to precedent, that the state trespass law applied to black sit-in demonstrators
who had consent to enter private property but were then asked to leave. Relying
upon NAACP, we concluded that the South Carolina Supreme Court’s
interpretation of a state penal statute had impermissibly broadened the scope of
that statute beyond what a fair reading provided, in violation of due process.
See 378 U. S., at 361–362. What we would do in the present case is precisely
parallel: Hold that the Florida Supreme Court’s interpretation of the Florida
election laws impermissibly distorted them beyond what a fair reading required,
in violation of Article II.
This inquiry does not imply a disrespect for state
courts but rather a respect for the constitutionally prescribed role of
state legislatures. To attach definitive weight to the pronouncement of a
state court, when the very question at issue is whether the court has actually
departed from the statutory meaning, would be to abdicate our responsibility to
enforce the explicit requirements of Article II.
II
Acting pursuant to its constitutional grant of
authority, the Florida Legislature has created a detailed, if not perfectly
crafted, statutory scheme that provides for appointment of Presidential electors
by direct election. Fla. Stat. §103.011 (2000). Under the statute, “[v]otes cast
for the actual candidates for President and Vice President shall be counted as
votes cast for the presidential electors supporting such candidates.”
Ibid. The legislature has designated the Secretary of State as the “chief
election officer,” with the responsibility to “[o]btain and maintain uniformity
in the application, operation, and interpretation of the election laws.”
§97.012. The state legislature has delegated to county canvassing boards the
duties of administering elections. §102.141. Those boards are responsible for
providing results to the state Elections Canvassing Commission, comprising the
Governor, the Secretary of State, and the Director of the Division of Elections.
§102.111. Cf. Boardman v. Esteva, 323 So. 2d 259, 268, n. 5 (1975)
(“The election process . . . is committed to the executive branch of government
through duly designated officials all charged with specific duties . . . . [The]
judgments [of these officials] are entitled to be regarded by the courts as
presumptively correct . . . ”).
After the election has taken place, the canvassing
boards receive returns from precincts, count the votes, and in the event that a
candidate was defeated by .5% or less, conduct a mandatory recount. Fla. Stat.
§102.141(4) (2000). The county canvassing boards must file certified election
returns with the Department of State by 5 p.m. on the seventh day following the
election. §102.112(1). The Elections Canvassing Commission must then certify the
results of the election. §102.111(1).
The state legislature has also provided mechanisms both
for protesting election returns and for contesting certified election results.
Section 102.166 governs protests. Any protest must be filed prior to the
certification of election results by the county canvassing board.
§102.166(4)(b). Once a protest has been filed, “the county canvassing board may
authorize a manual recount.”
§102.166(4)(c). If a sample recount conducted pursuant
to §102.166(5) “indicates an error in the vote tabulation which could affect the
outcome of the election,” the county canvassing board is instructed to: “(a)
Correct the error and recount the remaining precincts with the vote tabulation
system; (b) Request the Department of State to verify the tabulation software;
or (c) Manually recount all ballots,” §102.166(5). In the event a canvassing
board chooses to conduct a manual recount of all ballots, §102.166(7) prescribes
procedures for such a recount. Contests to the certification of an election, on
the other hand, are controlled by §102.168. The grounds for contesting an
election include “[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.” §102.168(3)(c). Any contest must be filed in the appropriate Florida
circuit court, Fla. Stat. §102.168(1), and the canvassing board or election
board is the proper party defendant, §102.168(4). Section 102.168(8) provides
that “[t]he circuit judge to whom the contest is presented may fashion such
orders as he or she deems necessary to ensure that each allegation in the
complaint is investigated, examined, or checked, to prevent or correct any
alleged wrong, and to provide any relief appropriate under such circumstances.”
In Presidential elections, the contest period necessarily terminates on the date
set by 3 U. S. C. §5 for concluding the State’s “final determination” of
election controversies.”
In its first decision, Palm Beach Canvassing Bd.
v. Harris, ___ So. 2d, ___ (Nov. 21, 2000) (Harris I), the
Florida Supreme Court extended the 7-day statutory certification deadline
established by the legislature. This modification of the code, by lengthening
the protest period, necessarily shortened the contest period for Presidential
elections. Underlying the extension of the certification deadline and the
shortchanging of the contest period was, presumably, the clear implication that
certification was a matter of significance: The certified winner would enjoy
presumptive validity, making a contest proceeding by the losing candidate an
uphill battle. In its latest opinion, however, the court empties certification
of virtually all legal consequence during the contest, and in doing so departs
from the provisions enacted by the Florida Legislature.
The court determined that canvassing boards’ decisions
regarding whether to recount ballots past the certification deadline (even the
certification deadline established by Harris I) are to be reviewed de
novo, although the election code clearly vests discretion whether to recount
in the boards, and sets strict deadlines subject to the Secretary’s rejection of
late tallies and monetary fines for tardiness. See Fla. Stat. §102.112 (2000).
Moreover, the Florida court held that all late vote tallies arriving during the
contest period should be automatically included in the certification regardless
of the certification deadline (even the certification deadline established by
Harris I), thus virtually eliminating both the deadline and the
Secretary’s discretion to disregard recounts that violate it.
Moreover, the court’s interpretation of “legal vote,”
and hence its decision to order a contest-period recount, plainly departed from
the legislative scheme. Florida statutory law cannot reasonably be thought to
require the counting of improperly marked ballots. Each Florida precinct
before election day provides instructions on how properly to cast a vote,
§101.46; each polling place on election day contains a working model of the
voting machine it uses, §101.5611; and each voting booth contains a sample
ballot, §101.46. In precincts using punch-card ballots, voters are instructed to
punch out the ballot cleanly: AFTER VOTING, CHECK YOUR BALLOT CARD TO
BE SURE YOUR VOTING SELECTIONS ARE
CLEARLY AND CLEANLY PUNCHED AND THERE
ARE NO CHIPS LEFT HANGING ON THE BACK
OF THE CARD.
BE SURE YOUR VOTING SELECTIONS ARE
CLEARLY AND CLEANLY PUNCHED AND THERE
ARE NO CHIPS LEFT HANGING ON THE BACK
OF THE CARD.
Instructions to Voters, quoted in Touchston v.
McDermott, 2000 WL 1781942, *6 & n. 19 (CA11) (Tjoflat, J.,
dissenting). No reasonable person would call it “an error in the vote
tabulation,” FLA. STAT. §102.166(5), or a “rejection of legal votes,” FLA. STAT.
§102.168(3)(c), when electronic or electromechanical equipment performs
precisely in the manner designed, and fails to count those ballots that are not
marked in the manner that these voting instructions explicitly and prominently
specify. The scheme that the Florida Supreme Court’s opinion attributes to the
legislature is one in which machines are required to be “capable of
correctly counting votes,” §101.5606(4), but which nonetheless regularly
produces elections in which legal votes are predictably not tabulated, so
that in close elections manual recounts are regularly required. This is of
course absurd. The Secretary of State, who is authorized by law to issue binding
interpretations of the election code, §§97.012, 106.23, rejected this peculiar
reading of the statutes. See DE 00–13 (opinion of the Division of Elections).
The Florida Supreme Court, although it must defer to the Secretary’s
interpretations, see Krivanek v. Take Back Tampa Political
Committee, 625 So. 2d 840, 844 (Fla. 1993), rejected her reasonable
interpretation and embraced the peculiar one. See Palm Beach County
Canvassing Board v. Harris, No. SC00–2346 (Dec. 11, 2000) (Harris
III).
But as we indicated in our remand of the earlier case,
in a Presidential election the clearly expressed intent of the legislature must
prevail. And there is no basis for reading the Florida statutes as requiring the
counting of improperly marked ballots, as an examination of the Florida Supreme
Court’s textual analysis shows. We will not parse that analysis here, except to
note that the principal provision of the election code on which it relied,
§101.5614(5), was, as the Chief Justice pointed out in his dissent from
Harris II, entirely irrelevant. See Gore v. Harris, No.
SC00-2431, slip op., at 50 (Dec. 8, 2000). The State’s Attorney General (who was
supporting the Gore challenge) confirmed in oral argument here that never before
the present election had a manual recount been conducted on the basis of the
contention that “undervotes” should have been examined to determine voter
intent. Tr. of Oral Arg. in Bush v. Palm Beach County Canvassing Bd.,
39–40 (Dec. 1, 2000); cf. Broward County Canvassing Board v.
Hogan, 607 So. 2d 508, 509 (Fla. Ct. App. 1992) (denial of recount for
failure to count ballots with “hanging paper chads”). For the court to step away
from this established practice, prescribed by the Secretary of State, the state
official charged by the legislature with “responsibility to . . . [o]btain and
maintain uniformity in the application, operation, and interpretation of the
election laws,” §97.012(1), was to depart from the legislative scheme.
III
The scope and nature of the remedy ordered by the
Florida Supreme Court jeopardizes the “legislative wish” to take advantage of
the safe harbor provided by 3 U. S. C. §5. Bush v. Palm Beach County
Canvassing Bd., ante, at 6. December 12, 2000, is the last date for a final
determination of the Florida electors that will satisfy §5. Yet in the late
afternoon of December 8th—four days before this deadline—the Supreme Court of
Florida ordered recounts of tens of thousands of so-called “undervotes” spread
through 64 of the State’s 67 counties. This was done in a search for
elusive—perhaps delusive—certainty as to the exact count of 6 million votes. But
no one claims that these ballots have not previously been tabulated; they were
initially read by voting machines at the time of the election, and thereafter
reread by virtue of Florida’s automatic recount provision. No one claims there
was any fraud in the election. The Supreme Court of Florida ordered this
additional recount under the provision of the election code giving the circuit
judge the authority to provide relief that is “appropriate under such
circumstances.” Fla. Stat. §102.168(8) (2000).
Surely when the Florida Legislature empowered the courts
of the State to grant “appropriate” relief, it must have meant relief that would
have become final by the cut-off date of 3 U. S. C. §5. In light of the
inevitable legal challenges and ensuing appeals to the Supreme Court of Florida
and petitions for certiorari to this Court, the entire recounting process could
not possibly be completed by that date. Whereas the majority in the Supreme
Court of Florida stated its confidence that “the remaining under-votes in these
counties can be [counted] within the required time frame,” ___ So. 2d. at ___,
n. 22 (slip op., at 38, n. 22), it made no assertion that the seemingly
inevitable appeals could be disposed of in that time. Although the Florida
Supreme Court has on occasion taken over a year to resolve disputes over local
elections, see, e.g., Beckstrom v. Volusia County Canvassing
Bd., 707 So. 2d 720 (1998) (resolving contest of sheriff’s race 16 months
after the election), it has heard and decided the appeals in the present case
with great promptness. But the federal deadlines for the Presidential election
simply do not permit even such a shortened process.
As the dissent noted: “In [the four days remaining], all questionable ballots
must be reviewed by the judicial officer appointed
to discern the intent of the voter in a process open to
the public. Fairness dictates that a provision be made
for either party to object to how a particular ballot is
counted. Additionally, this short time period must
allow for judicial review. I respectfully submit this
cannot be completed without taking Florida’s presidential
electors outside the safe harbor provision, creating
the very real possibility of disenfranchising
those nearly 6 million voters who are able to correctly
cast their ballots on election day.” ___ So. 2d, at ___
(slip op., at 55) (Wells, C. J., dissenting).
must be reviewed by the judicial officer appointed
to discern the intent of the voter in a process open to
the public. Fairness dictates that a provision be made
for either party to object to how a particular ballot is
counted. Additionally, this short time period must
allow for judicial review. I respectfully submit this
cannot be completed without taking Florida’s presidential
electors outside the safe harbor provision, creating
the very real possibility of disenfranchising
those nearly 6 million voters who are able to correctly
cast their ballots on election day.” ___ So. 2d, at ___
(slip op., at 55) (Wells, C. J., dissenting).
The other dissenters echoed this concern: “[T]he
majority is departing from the essential requirements of the law by providing a
remedy which is impossible to achieve and which will ultimately lead to chaos.”
Id., at ___ (slip op., at 67 (Harding, J., dissenting, Shaw, J.
concurring).
Given all these factors, and in light of the legislative
intent identified by the Florida Supreme Court to bring Florida within the “safe
harbor” provision of 3 U. S. C. §5, the remedy prescribed by the Supreme Court
of Florida cannot be deemed an “appropriate” one as of December 8. It
significantly departed from the statutory framework in place on November 7, and
authorized open-ended further proceedings which could not be completed by
December 12, thereby preventing a final determination by that date.
For these reasons, in addition to those given in the
per curiam, we would reverse.
JUSTICE STEVENS, with whom JUSTICE GINSBURG AND JUSTICE
BREYER join, dissenting.
The Constitution assigns to the States the primary
responsibility for determining the manner of selecting the Presidential
electors. See Art. II, §1, cl. 2. When questions arise about the meaning of
state laws, including election laws, it is our settled practice to accept the
opinions of the highest courts of the States as providing the final answers. On
rare occasions, however, either federal statutes or the Federal Constitution may
require federal judicial intervention in state elections. This is not such an
occasion.
The federal questions that ultimately emerged in this
case are not substantial. Article II provides that “[e]ach State shall
appoint, in such Manner as the Legislature thereof may direct, a Number
of Electors.” Ibid. (emphasis added). It does not create state
legislatures out of whole cloth, but rather takes them as they come—as creatures
born of, and constrained by, their state constitutions. Lest there be any doubt,
we stated over 100 years ago in McPherson v. Blacker, 146 U. S. 1,
25 (1892), that “[w]hat is forbidden or required to be done by a State” in the
Article II context “is forbidden or required of the legislative power under
state constitutions as they exist.” In the same vein, we also observed that
“[t]he [State’s] legislative power is the supreme authority except as limited by
the constitution of the State.” Ibid.; cf. Smiley v. Holm,
285 U. S. 355, 367 (1932). The legislative power in Florida is subject to
judicial review pursuant to Article V of the Florida Constitution, and nothing
in Article II of the Federal Constitution frees the state legislature from the
constraints in the state constitution that created it. Moreover, the Florida
Legislature’s own decision to employ a unitary code for all elections indicates
that it intended the Florida Supreme Court to play the same role in Presidential
elections that it has historically played in resolving electoral disputes. The
Florida Supreme Court’s exercise of appellate jurisdiction therefore was wholly
consistent with, and indeed contemplated by, the grant of authority in Article
II.
It hardly needs stating that Congress, pursuant to 3 U.
S. C. §5, did not impose any affirmative duties upon the States that their
governmental branches could “violate.” Rather, §5 provides a safe harbor for
States to select electors in contested elections “by judicial or other methods”
established by laws prior to the election day. Section 5, like Article II,
assumes the involvement of the state judiciary in interpreting state election
laws and resolving election disputes under those laws. Neither §5 nor Article II
grants federal judges any special authority to substitute their views for those
of the state judiciary on matters of state law.
Nor are petitioners correct in asserting that the
failure of the Florida Supreme Court to specify in detail the precise manner in
which the “intent of the voter,” Fla. Stat. §101.5614(5) (Supp. 2001), is to be
determined rises to the level of a constitutional violation. We found such a
violation when individual votes within the same State were weighted unequally,
see, e.g., Reynolds v. Sims, 377 U. S. 533, 568 (1964), but we
have never before called into question the substantive standard by which a State
determines that a vote has been legally cast. And there is no reason to think
that the guidance provided to the fact-finders, specifically the various
canvassing boards, by the “intent of the voter” standard is any less
sufficient—or will lead to results any less uniform—than, for example, the
“beyond a reasonable doubt” standard employed everyday by ordinary citizens in
courtrooms across this country.
Admittedly, the use of differing substandards for
determining voter intent in different counties employing similar voting systems
may raise serious concerns. Those concerns are alleviated—if not eliminated—by
the fact that a single impartial magistrate will ultimately adjudicate all
objections arising from the recount process. Of course, as a general matter,
“[t]he interpretation of constitutional principles must not be too literal. We
must remember that the machinery of government would not work if it were not
allowed a little play in its joints.” Bain Peanut Co. of Tex. v.
Pinson, 282 U. S. 499, 501 (1931) (Holmes, J.). If it were otherwise,
Florida’s decision to leave to each county the determination of what balloting
system to employ—despite enormous differences in accuracy —might run afoul of
equal protection. So, too, might the similar decisions of the vast majority of
state legislatures to delegate to local authorities certain decisions with
respect to voting systems and ballot design.
Even assuming that aspects of the remedial scheme might
ultimately be found to violate the Equal Protection Clause, I could not
subscribe to the majority’s disposition of the case. As the majority explicitly
holds, once a state legislature determines to select electors through a popular
vote, the right to have one’s vote counted is of constitutional stature. As the
majority further acknowledges, Florida law holds that all ballots that reveal
the intent of the voter constitute valid votes. Recognizing these principles,
the majority nonetheless orders the termination of the contest proceeding before
all such votes have been tabulated. Under their own reasoning, the appropriate
course of action would be to remand to allow more specific procedures for
implementing the legislature’s uniform general standard to be established.
In the interest of finality, however, the majority
effectively orders the disenfranchisement of an unknown number of voters whose
ballots reveal their intent—and are therefore legal votes under state law—but
were for some reason rejected by ballot-counting machines. It does so on the
basis of the deadlines set forth in Title 3 of the United States Code.
Ante, at 11. But, as I have already noted, those provisions merely
provide rules of decision for Congress to follow when selecting among
conflicting slates of electors. Supra, at 2. They do not prohibit a State
from counting what the majority concedes to be legal votes until a bona fide
winner is determined. Indeed, in 1960 Hawaii appointed two slates of electors
and Congress chose to count the one appointed on January 4, 1961, well after the
Title 3 deadlines. See Josephson & Ross, Repairing the Electoral College, 22
J. Legis. 145, 166, n. 154 (1996). Thus, nothing prevents the majority, even if
it properly found an equal protection violation, from ordering relief
appropriate to remedy that violation without depriving Florida voters of their
right to have their votes counted. As the majority notes, “[a] desire for speed
is not a general excuse for ignoring equal protection guarantees.” Ante,
at 10.
Finally, neither in this case, nor in its earlier
opinion in Palm Beach County Canvassing Bd. v. Harris, 2000 WL
1725434 (Fla., Nov. 21, 2000), did the Florida Supreme Court make any
substantive change in Florida electoral law. Its decisions were rooted in
long-established precedent and were consistent with the relevant statutory
provisions, taken as a whole. It did what courts do—it decided the case before
it in light of the legislature’s intent to leave no legally cast vote uncounted.
In so doing, it relied on the sufficiency of the general “intent of the voter”
standard articulated by the state legislature, coupled with a procedure for
ultimate review by an impartial judge, to resolve the concern about disparate
evaluations of contested ballots. If we assume—as I do—that the members of that
court and the judges who would have carried out its mandate are impartial, its
decision does not even raise a colorable federal question.
What must underlie petitioners’ entire federal assault
on the Florida election procedures is an unstated lack of confidence in the
impartiality and capacity of the state judges who would make the critical
decisions if the vote count were to proceed. Otherwise, their position is wholly
without merit. The endorsement of that position by the majority of this Court
can only lend credence to the most cynical appraisal of the work of judges
throughout the land. It is confidence in the men and women who administer the
judicial system that is the true backbone of the rule of law. Time will one day
heal the wound to that confidence that will be inflicted by today’s decision.
One thing, however, is certain. Although we may never know with complete
certainty the identity of the winner of this year’s Presidential election, the
identity of the loser is perfectly clear. It is the Nation’s confidence in the
judge as an impartial guardian of the rule of law. I respectfully dissent.
JUSTICE SOUTER, with whom JUSTICE BREYER joins and with
whom JUSTICE STEVENS and JUSTICE GINSBURG join with regard to all but Part C,
dissenting.
The Court should not have reviewed either Bush v.
Palm Beach County Canvassing Bd., ante, p. ___ (per curiam), or
this case, and should not have stopped Florida’s attempt to recount all
undervote ballots, see ante at ___, by issuing a stay of the Florida
Supreme Court’s orders during the period of this review, see Bush v.
Gore, post at ____ (slip op., at 1). If this Court had allowed the State
to follow the course indicated by the opinions of its own Supreme Court, it is
entirely possible that there would ultimately have been no issue requiring our
review, and political tension could have worked itself out in the Congress
following the procedure provided in 3 U. S. C. §15. The case being before us,
however, its resolution by the majority is another erroneous decision.
As will be clear, I am in substantial agreement with the
dissenting opinions of JUSTICE STEVENS, JUSTICE GINSBURG and JUSTICE BREYER. I
write separately only to say how straightforward the issues before us really
are.
There are three issues: whether the State Supreme
Court’s interpretation of the statute providing for a contest of the state
election results somehow violates 3 U. S. C. §5; whether that court’s
construction of the state statutory provisions governing contests changes a
state law from what the State’s legislature has provided, in violation of
Article II, §1, cl. 2, of the national Constitution; and whether the manner of
interpreting markings on disputed ballots failing to cause machines to register
votes for President (the undervote ballots) violates the equal protection or due
process guaranteed by the Fourteenth Amendment. None of these issues is
difficult to describe or to resolve.
A
The 3 U. S. C. §5 issue is not serious. That provision
sets certain conditions for treating a State’s certification of Presidential
electors as conclusive in the event that a dispute over recognizing those
electors must be resolved in the Congress under 3 U. S. C. §15. Conclusiveness
requires selection under a legal scheme in place before the election, with
results determined at least six days before the date set for casting electoral
votes. But no State is required to conform to §5 if it cannot do that (for
whatever reason); the sanction for failing to satisfy the conditions of §5 is
simply loss of what has been called its “safe harbor.” And even that
determination is to be made, if made anywhere, in the Congress.
B
The second matter here goes to the State Supreme Court’s
interpretation of certain terms in the state statute governing election
“contests,” Fla. Stat. §102.168 (2000); there is no question here about the
state court’s interpretation of the related provisions dealing with the
antecedent process of “protesting” particular vote counts, §102.166, which was
involved in the previous case, Bush v. Palm Beach County Canvassing
Board. The issue is whether the judgment of the state supreme court has
displaced the state legislature’s provisions for election contests: is the law
as declared by the court different from the provisions made by the legislature,
to which the national Constitution commits responsibility for determining how
each State’s Presidential electors are chosen? See U. S. Const., Art. II, §1,
cl. 2. Bush does not, of course, claim that any judicial act interpreting a
statute of uncertain meaning is enough to displace the legislative provision and
violate Article II; statutes require interpretation, which does not without more
affect the legislative character of a statute within the meaning of the
Constitution. Brief for Petitioners 48, n. 22, in Bush v. Palm Beach
County Canvassing Bd., et al., 531 U. S. ___ (2000). What Bush does argue,
as I understand the contention, is that the interpretation of §102.168 was so
unreasonable as to transcend the accepted bounds of statutory interpretation, to
the point of being a nonjudicial act and producing new law untethered to the
legislative act in question.
The starting point for evaluating the claim that the
Florida Supreme Court’s interpretation effectively rewrote §102.168 must be the
language of the provision on which Gore relies to show his right to raise this
contest: that the previously certified result in Bush’s favor was produced by
“rejection of a number of legal votes sufficient to change or place in doubt the
result of the election.” Fla. Stat. §102.168(3)(c) (2000). None of the state
court’s interpretations is unreasonable to the point of displacing the
legislative enactment quoted. As I will note below, other interpretations were
of course possible, and some might have been better than those adopted by the
Florida court’s majority; the two dissents from the majority opinion of that
court and various briefs submitted to us set out alternatives. But the majority
view is in each instance within the bounds of reasonable interpretation, and the
law as declared is consistent with Article II.
1. The statute does not define a “legal vote,” the
rejection of which may affect the election. The State Supreme Court was
therefore required to define it, and in doing that the court looked to another
election statute, §101.5614(5), dealing with damaged or defective ballots, which
contains a provision that no vote shall be disregarded “if there is a clear
indication of the intent of the voter as determined by a canvassing board.” The
court read that objective of looking to the voter’s intent as indicating that
the legislature probably meant “legal vote” to mean a vote recorded on a ballot
indicating what the voter intended. Gore v. Harris, __ So. 2d __
(slip op., at 23–25) (Dec. 8, 2000). It is perfectly true that the majority
might have chosen a different reading. See, e.g., Brief for Respondent
Harris et al. 10 (defining “legal votes” as “votes properly executed in
accordance with the instructions provided to all registered voters in advance of
the election and in the polling places”). But even so, there is no
constitutional violation in following the majority view; Article II is
unconcerned with mere disagreements about interpretive merits.
2. The Florida court next interpreted “rejection” to
determine what act in the counting process may be attacked in a contest. Again,
the statute does not define the term. The court majority read the word to mean
simply a failure to count. ____ So. 2d, at___ (slip op., at 26–27). That reading
is certainly within the bounds of common sense, given the objective to give
effect to a voter’s intent if that can be determined. A different reading, of
course, is possible. The majority might have concluded that “rejection” should
refer to machine malfunction, or that a ballot should not be treated as
“reject[ed]” in the absence of wrongdoing by election officials, lest contests
be so easy to claim that every election will end up in one. Cf. id., at
____ (slip op., at 48) (Wells, C. J., dissenting). There is, however, nothing
nonjudicial in the Florida majority’s more hospitable reading.
3. The same is true about the court majority’s
understanding of the phrase “votes sufficient to change or place in doubt” the
result of the election in Florida. The court held that if the uncounted ballots
were so numerous that it was reasonably possible that they contained enough
“legal” votes to swing the election, this contest would be authorized by the
statute. While the majority might have thought (as the trial judge did) that a
probability, not a possibility, should be necessary to justify a contest, that
reading is not required by the statute’s text, which says nothing about
probability. Whatever people of good will and good sense may argue about the
merits of the Florida court’s reading, there is no warrant for saying that it
transcends the limits of reasonable statutory interpretation to the point of
supplanting the statute enacted by the “legislature” within the meaning of
Article II.
In sum, the interpretations by the Florida court raise
no substantial question under Article II. That court engaged in permissible
construction in determining that Gore had instituted a contest authorized by the
state statute, and it proceeded to direct the trial judge to deal with that
contest in the exercise of the discretionary powers generously conferred by Fla.
Stat. §102.168(8) (2000), to “fashion such orders as he or she deems necessary
to ensure that each allegation in the complaint is investigated, examined, or
checked, to prevent or correct any alleged wrong, and to provide any relief
appropriate under such circumstances.” As JUSTICE GINSBURG has persuasively
explained in her own dissenting opinion, our customary respect for state
interpretations of state law counsels against rejection of the Florida court’s
determinations in this case.
C
It is only on the third issue before us that there is a
meritorious argument for relief, as this Court’s Per Curiam opinion
recognizes. It is an issue that might well have been dealt with adequately by
the Florida courts if the state proceedings had not been interrupted, and if not
disposed of at the state level it could have been considered by the Congress in
any electoral vote dispute. But because the course of state proceedings has been
interrupted, time is short, and the issue is before us, I think it sensible for
the Court to address it.
Petitioners have raised an equal protection claim (or,
alternatively, a due process claim, see generally Logan v. Zimmerman
Brush Co., 455 U. S. 422 (1982)), in the charge that unjustifiably disparate
standards are applied in different electoral jurisdictions to otherwise
identical facts. It is true that the Equal Protection Clause does not forbid the
use of a variety of voting mechanisms within a jurisdiction, even though
different mechanisms will have different levels of effectiveness in recording
voters’ intentions; local variety can be justified by concerns about cost, the
potential value of innovation, and so on. But evidence in the record here
suggests that a different order of disparity obtains under rules for determining
a voter’s intent that have been applied (and could continue to be applied) to
identical types of ballots used in identical brands of machines and exhibiting
identical physical characteristics (such as “hanging” or “dimpled” chads). See,
e.g., Tr., at 238–242 (Dec. 2–3, 2000) (testimony of Palm Beach County
Canvassing Board Chairman Judge Charles Burton describing varying standards
applied to imperfectly punched ballots in Palm Beach County during
precertification manual recount); id., at 497–500 (similarly describing
varying standards applied in Miami-Dade County); Tr. of Hearing 8–10 (Dec. 8,
2000) (soliciting from county canvassing boards proposed protocols for
determining voters’ intent but declining to provide a precise, uniform
standard). I can conceive of no legitimate state interest served by these
differing treatments of the expressions of voters’ fundamental rights. The
differences appear wholly arbitrary.
In deciding what to do about this, we should take
account of the fact that electoral votes are due to be cast in six days. I would
therefore remand the case to the courts of Florida with instructions to
establish uniform standards for evaluating the several types of ballots that
have prompted differing treatments, to be applied within and among counties when
passing on such identical ballots in any further recounting (or successive
recounting) that the courts might order.
Unlike the majority, I see no warrant for this Court to
assume that Florida could not possibly comply with this requirement before the
date set for the meeting of electors, December 18. Although one of the
dissenting justices of the State Supreme Court estimated that disparate
standards potentially affected 170,000 votes, Gore v. Harris,
supra, ___ So. 2d, at ___ (slip op., at 66), the number at issue is
significantly smaller. The 170,000 figure apparently represents all uncounted
votes, both undervotes (those for which no Presidential choice was recorded by a
machine) and overvotes (those rejected because of votes for more than one
candidate). Tr. of Oral Arg. 61–62. But as JUSTICE BREYER has pointed out, no
showing has been made of legal overvotes uncounted, and counsel for Gore made an
uncontradicted representation to the Court that the statewide total of
undervotes is about 60,000. Id., at 62. To recount these manually would
be a tall order, but before this Court stayed the effort to do that the courts
of Florida were ready to do their best to get that job done. There is no
justification for denying the State the opportunity to try to count all disputed
ballots now.
I respectfully dissent.
JUSTICE GINSBURG, with whom JUSTICE STEVENS joins, and
with whom JUSTICE SOUTER and JUSTICE BREYER join as to Part I, dissenting.
I
THE CHIEF JUSTICE acknowledges that provisions of
Florida’s Election Code “may well admit of more than one interpretation.”
Ante, at 3 (concurring opinion). But instead of respecting the state high
court’s province to say what the State’s Election Code means, THE CHIEF JUSTICE
maintains that Florida’s Supreme Court has veered so far from the ordinary
practice of judicial review that what it did cannot properly be called judging.
My colleagues have offered a reasonable construction of Florida’s law. Their
construction coincides with the view of one of Florida’s seven Supreme Court
justices. Gore v. Harris, __ So. 2d __, __ (Fla. 2000) (slip op.,
at 45–55) (Wells, C. J., dissenting); Palm Beach County Canvassing Bd. v.
Harris, __ So. 2d __, __ (Fla. 2000) (slip op., at 34) (on remand)
(confirming, 6–1, the construction of Florida law advanced in Gore). I
might join THE CHIEF JUSTICE were it my commission to interpret Florida law. But
disagreement with the Florida court’s interpretation of its own State’s law does
not warrant the conclusion that the justices of that court have legislated.
There is no cause here to believe that the members of Florida’s high court have
done less than “their mortal best to discharge their oath of office,” Sumner
v. Mata, 449 U. S. 539, 549 (1981), and no cause to upset their
reasoned interpretation of Florida law.
This Court more than occasionally affirms statutory, and
even constitutional, interpretations with which it disagrees. For example, when
reviewing challenges to administrative agencies’ interpretations of laws they
implement, we defer to the agencies unless their interpretation violates “the
unambiguously expressed intent of Congress.” Chevron U. S. A. Inc. v.
Natural Resources Defense Council, Inc., 467 U. S. 837, 843 (1984). We do
so in the face of the declaration in Article I of the United States Constitution
that “All legislative Powers herein granted shall be vested in a Congress of the
United States.” Surely the Constitution does not call upon us to pay more
respect to a federal administrative agency’s construction of federal law than to
a state high court’s interpretation of its own State’s law. And not uncommonly,
we let stand state-court interpretations of federal law with which we
might disagree. Notably, in the habeas context, the Court adheres to the view
that “there is ‘no intrinsic reason why the fact that a man is a federal judge
should make him more competent, or conscientious, or learned with respect to
[federal law] than his neighbor in the state courthouse.’” Stone v.
Powell, 428 U. S. 465, 494, n. 35 (1976) (quoting Bator, Finality in
Criminal Law and Federal Habeas Corpus For State Prisoners, 76 Harv. L. Rev.
441, 509 (1963)); see O’ Dell v. Netherland, 521 U. S. 151, 156
(1997) (“[T]he Teague doctrine validates reasonable, good-faith
interpretations of existing precedents made by state courts even though they are
shown to be contrary to later decisions.”) (citing Butler v.
McKellar, 494 U. S. 407, 414 (1990)); O’Connor, Trends in the
Relationship Between the Federal and State Courts from the Perspective of a
State Court Judge, 22 Wm. & Mary L. Rev. 801, 813 (1981) (“There is no
reason to assume that state court judges cannot and will not provide a
‘hospitable forum’ in litigating federal constitutional questions.”).
No doubt there are cases in which the proper application
of federal law may hinge on interpretations of state law. Unavoidably, this
Court must sometimes examine state law in order to protect federal rights. But
we have dealt with such cases ever mindful of the full measure of respect we owe
to interpretations of state law by a State’s highest court. In the Contract
Clause case, General Motors Corp. v. Romein, 503 U. S. 181 (1992),
for example, we said that although “ultimately we are bound to decide for
ourselves whether a contract was made,” the Court “accord[s] respectful
consideration and great weight to the views of the State’s highest court.”
Id., at 187 (citation omitted). And in Central Union Telephone Co.
v. Edwardsville, 269 U. S. 190 (1925), we upheld the Illinois Supreme
Court’s interpretation of a state waiver rule, even though that interpretation
resulted in the forfeiture of federal constitutional rights. Refusing to
supplant Illinois law with a federal definition of waiver, we explained that the
state court’s declaration “should bind us unless so unfair or unreasonable in
its application to those asserting a federal right as to obstruct it.”
Id., at 195.
In deferring to state courts on matters of state law, we
appropriately recognize that this Court acts as an “‘outside[r]’ lacking the
common exposure to local law which comes from sitting in the jurisdiction.”
Lehman Brothers v. Schein, 416 U. S. 386, 391 (1974). That
recognition has sometimes prompted us to resolve doubts about the meaning of
state law by certifying issues to a State’s highest court, even when federal
rights are at stake. Cf. Arizonans for Official English v. Arizona,
520 U. S. 43, 79 (1997) (“Warnings against premature adjudication of
constitutional questions bear heightened attention when a federal court is asked
to invalidate a State’s law, for the federal tribunal risks friction-generating
error when it endeavors to construe a novel state Act not yet reviewed by the
State’s highest court.”). Notwithstanding our authority to decide issues of
state law underlying federal claims, we have used the certification devise to
afford state high courts an opportunity to inform us on matters of their own
State’s law because such restraint “helps build a cooperative judicial
federalism.” Lehman Brothers, 416 U. S., at 391.
Just last Term, in Fiore v. White, 528 U.
S. 23 (1999), we took advantage of Pennsylvania’s certification procedure. In
that case, a state prisoner brought a federal habeas action claiming that the
State had failed to prove an essential element of his charged offense in
violation of the Due Process Clause. Id., at 25–26. Instead of resolving
the state-law question on which the federal claim depended, we certified the
question to the Pennsylvania Supreme Court for that court to “help determine the
proper state-law predicate for our determination of the federal constitutional
questions raised.” Id., at 29; id., at 28 (asking the Pennsylvania
Supreme Court whether its recent interpretation of the statute under which Fiore
was convicted “was always the statute’s meaning, even at the time of Fiore’s
trial”). THE CHIEF JUSTICE’s willingness to reverse the Florida Supreme
Court’s interpretation of Florida law in this case is at least in tension with
our reluctance in Fiore even to interpret Pennsylvania law before seeking
instruction from the Pennsylvania Supreme Court. I would have thought the
“cautious approach” we counsel when federal courts address matters of state law,
Arizonans, 520 U. S., at 77, and our commitment to “build[ing]
cooperative judicial federalism,” Lehman Brothers, 416 U. S., at 391,
demanded greater restraint.
Rarely has this Court rejected outright an
interpretation of state law by a state high court. Fairfax’s Devisee v.
Hunter’s Lessee, 7 Cranch 603 (1813), NAACP v. Alabama ex rel.
Patterson, 357 U. S. 449 (1958), and Bouie v. City of
Columbia, 378 U. S. 347 (1964), cited by THE CHIEF JUSTICE, are three such
rare instances. See ante, at 4, 5, and n. 1. But those cases are embedded
in historical contexts hardly comparable to the situation here. Fairfax’s
Devisee, which held that the Virginia Court of Appeals had misconstrued its
own forfeiture laws to deprive a British subject of lands secured to him by
federal treaties, occurred amidst vociferous States’ rights attacks on the
Marshall Court. G. Gunther & K. Sullivan, Constitutional Law 61–62 (13th ed.
1997). The Virginia court refused to obey this Court’s Fairfax’s Devisee
mandate to enter judgment for the British subject’s successor in interest.
That refusal led to the Court’s pathmarking decision in Martin v.
Hunter’s Lessee, 1 Wheat. 304 (1816). Patterson, a case decided
three months after Cooper v. Aaron, 358 U. S. 1 (1958), in the
face of Southern resistance to the civil rights movement, held that the Alabama
Supreme Court had irregularly applied its own procedural rules to deny review of
a contempt order against the NAACP arising from its refusal to disclose
membership lists. We said that “our jurisdiction is not defeated if the
nonfederal ground relied on by the state court is without any fair or
substantial support.” 357 U. S., at 455. Bouie, stemming from a lunch
counter “sit-in” at the height of the civil rights movement, held that the South
Carolina Supreme Court’s construction of its trespass laws—criminalizing conduct
not covered by the text of an otherwise clear statute—was “unforeseeable” and
thus violated due process when applied retroactively to the petitioners. 378 U.
S., at 350, 354.
THE CHIEF JUSTICE’s casual citation of these cases might
lead one to believe they are part of a larger collection of cases in which we
said that the Constitution impelled us to train a skeptical eye on a state
court’s portrayal of state law. But one would be hard pressed, I think, to find
additional cases that fit the mold. As JUSTICE BREYER convincingly explains, see
post, at 6–9 (dissenting opinion), this case involves nothing close to
the kind of recalcitrance by a state high court that warrants extraordinary
action by this Court. The Florida Supreme Court concluded that counting every
legal vote was the overriding concern of the Florida Legislature when it enacted
the State’s Election Code. The court surely should not be bracketed with state
high courts of the Jim Crow South.
THE CHIEF JUSTICE says that Article II, by providing
that state legislatures shall direct the manner of appointing electors,
authorizes federal superintendence over the relationship between state courts
and state legislatures, and licenses a departure from the usual deference we
give to state court interpretations of state law. Ante, at 5 (concurring
opinion) (“To attach definitive weight to the pronouncement of a state court,
when the very question at issue is whether the court has actually departed from
the statutory meaning, would be to abdicate our responsibility to enforce the
explicit requirements of Article II.”). The Framers of our Constitution,
however, understood that in a republican government, the judiciary would
construe the legislature’s enactments. See U. S. Const., Art. III; The
Federalist No. 78 (A. Hamilton). In light of the constitutional guarantee to
States of a “Republican Form of Government,” U. S. Const., Art. IV, §4, Article
II can hardly be read to invite this Court to disrupt a State’s republican
regime. Yet THE CHIEF JUSTICE today would reach out to do just that. By holding
that Article II requires our revision of a state court’s construction of state
laws in order to protect one organ of the State from another, THE CHIEF JUSTICE
contradicts the basic principle that a State may organize itself as it sees fit.
See, e.g., Gregory v. Ashcroft, 501 U. S. 452, 460 (1991)
(“Through the structure of its government, and the character of those who
exercise government authority, a State defines itself as a sovereign.”);
Highland Farms Dairy, Inc. v. Agnew, 300 U. S. 608, 612 (1937)
(“How power shall be distributed by a state among its governmental organs is
commonly, if not always, a question for the state itself.”). Article II does not
call for the scrutiny undertaken by this Court.
The extraordinary setting of this case has obscured the
ordinary principle that dictates its proper resolution: Federal courts defer to
state high courts’ interpretations of their State’s own law. This principle
reflects the core of federalism, on which all agree. “The Framers split the atom
of sovereignty. It was the genius of their idea that our citizens would have two
political capacities, one state and one federal, each protected from incursion
by the other.” Saenz v. Roe, 526 U. S. 489, 504, n. 17 (1999)
(citing U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 838
(1995) (KENNEDY, J., concurring)). THE CHIEF JUSTICE’s solicitude for the
Florida Legislature comes at the expense of the more fundamental solicitude we
owe to the legislature’s sovereign. U. S. Const., Art. II, §1, cl. 2 (“Each
State shall appoint, in such Manner as the Legislature thereof may
direct,” the electors for President and Vice President) (emphasis added);
ante, at 1–2 (STEVENS, J., dissenting). Were the other members of this
Court as mindful as they generally are of our system of dual sovereignty, they
would affirm the judgment of the Florida Supreme Court.
II
I agree with JUSTICE STEVENS that petitioners have not
presented a substantial equal protection claim. Ideally, perfection would be the
appropriate standard for judging the recount. But we live in an imperfect world,
one in which thousands of votes have not been counted. I cannot agree that the
recount adopted by the Florida court, flawed as it may be, would yield a result
any less fair or precise than the certification that preceded that recount. See,
e.g., McDonald v. Board of Election Comm’rs of Chicago, 394
U.S. 802, 807 (1969) (even in the context of the right to vote, the state is
permitted to reform “‘one step at a time’”) (quoting Williamson v. Lee
Optical of Oklahoma, Inc., 348 U.S. 483, 489 (1955)).
Even if there were an equal protection violation, I
would agree with JUSTICE STEVENS, JUSTICE SOUTER, and JUSTICE BREYER that the
Court’s concern about the December 12 date, ante, at 12, is misplaced.
Time is short in part because of the Court’s entry of a stay on December 9,
several hours after an able circuit judge in Leon County had begun to
superintend the recount process. More fundamentally, the Court’s reluctance to
let the recount go forward—despite its suggestion that “[t]he search for intent
can be confined by specific rules designed to ensure uniform treatment,”
ante, at 7—ultimately turns on its own judgment about the practical
realities of implementing a recount, not the judgment of those much closer to
the process.
Equally important, as JUSTICE BREYER explains,
post, at 12 (dissenting opinion), the December 12 date for bringing
Florida’s electoral votes into 3 U. S. C. §5’s safe harbor lacks the
significance the Court assigns it. Were that date to pass, Florida would still
be entitled to deliver electoral votes Congress must count unless both
Houses find that the votes “ha[d] not been . . . regularly given.” 3 U. S. C.
§15. The statute identifies other significant dates. See, e.g., §7
(specifying December 18 as the date electors “shall meet and give their votes”);
§12 (specifying “the fourth Wednesday in December”—this year, December 27—as the
date on which Congress, if it has not received a State’s electoral votes, shall
request the state secretary of state to send a certified return immediately).
But none of these dates has ultimate significance in light of Congress’ detailed
provisions for determining, on “the sixth day of January,” the validity of
electoral votes. §15. The Court assumes that time will not permit “orderly
judicial review of any disputed matters that might arise.” Ante, at 1.
But no one has doubted the good faith and diligence with which Florida election
officials, attorneys for all sides of this controversy, and the courts of law
have performed their duties. Notably, the Florida Supreme Court has produced two
substantial opinions within 29 hours of oral argument. In sum, the Court’s
conclusion that a constitutionally adequate recount is impractical is a prophecy
the Court’s own judgment will not allow to be tested. Such an untested prophecy
should not decide the Presidency of the United States.
I dissent.
JUSTICE BREYER, with whom JUSTICE STEVENS and JUSTICE
GINSBURG join except as to Part I–A–1, and with whom JUSTICE SOUTER joins as to
Part I, dissenting.
The Court was wrong to take this case. It was wrong to
grant a stay. It should now vacate that stay and permit the Florida Supreme
Court to decide whether the recount should resume.
I
The political implications of this case for the country
are momentous. But the federal legal questions presented, with one exception,
are insubstantial.
A
1
The majority raises three Equal Protection problems with
the Florida Supreme Court’s recount order: first, the failure to include
overvotes in the manual recount; second, the fact that all ballots,
rather than simply the undervotes, were recounted in some, but not all,
counties; and third, the absence of a uniform, specific standard to guide the
recounts. As far as the first issue is concerned, petitioners presented no
evidence, to this Court or to any Florida court, that a manual recount of
overvotes would identify additional legal votes. The same is true of the second,
and, in addition, the majority’s reasoning would seem to invalidate any state
provision for a manual recount of individual counties in a statewide
election.
The majority’s third concern does implicate principles
of fundamental fairness. The majority concludes that the Equal Protection Clause
requires that a manual recount be governed not only by the uniform general
standard of the “clear intent of the voter,” but also by uniform subsidiary
standards (for example, a uniform determination whether indented, but not
perforated, “undervotes” should count). The opinion points out that the Florida
Supreme Court ordered the inclusion of Broward County’s undercounted “legal
votes” even though those votes included ballots that were not perforated but
simply “dimpled,” while newly recounted ballots from other counties will likely
include only votes determined to be “legal” on the basis of a stricter standard.
In light of our previous remand, the Florida Supreme Court may have been
reluctant to adopt a more specific standard than that provided for by the
legislature for fear of exceeding its authority under Article II. However, since
the use of different standards could favor one or the other of the candidates,
since time was, and is, too short to permit the lower courts to iron out
significant differences through ordinary judicial review, and since the relevant
distinction was embodied in the order of the State’s highest court, I agree
that, in these very special circumstances, basic principles of fairness should
have counseled the adoption of a uniform standard to address the problem. In
light of the majority’s disposition, I need not decide whether, or the extent to
which, as a remedial matter, the Constitution would place limits upon the
content of the uniform standard.
2
Nonetheless, there is no justification for the
majority’s remedy, which is simply to reverse the lower court and halt the
recount entirely. An appropriate remedy would be, instead, to remand this case
with instructions that, even at this late date, would permit the Florida Supreme
Court to require recounting all undercounted votes in Florida, including
those from Broward, Volusia, Palm Beach, and Miami-Dade Counties, whether or not
previously recounted prior to the end of the protest period, and to do so in
accordance with a single-uniform substandard.
The majority justifies stopping the recount entirely on
the ground that there is no more time. In particular, the majority relies on the
lack of time for the Secretary to review and approve equipment needed to
separate undervotes. But the majority reaches this conclusion in the absence of
any record evidence that the recount could not have been completed in the
time allowed by the Florida Supreme Court. The majority finds facts outside of
the record on matters that state courts are in a far better position to address.
Of course, it is too late for any such recount to take place by December 12, the
date by which election disputes must be decided if a State is to take advantage
of the safe harbor provisions of 3 U. S. C. §5. Whether there is time to conduct
a recount prior to December 18, when the electors are scheduled to meet, is a
matter for the state courts to determine. And whether, under Florida law,
Florida could or could not take further action is obviously a matter for Florida
courts, not this Court, to decide. See ante, at 13 (per
curiam).
By halting the manual recount, and thus ensuring that
the uncounted legal votes will not be counted under any standard, this Court
crafts a remedy out of proportion to the asserted harm. And that remedy harms
the very fairness interests the Court is attempting to protect. The manual
recount would itself redress a problem of unequal treatment of ballots. As
JUSTICE STEVENS points out, see ante, at 4 and n. 4 (STEVENS, J.,
dissenting opinion), the ballots of voters in counties that use punch-card
systems are more likely to be disqualified than those in counties using
optical-scanning systems. According to recent news reports, variations in the
undervote rate are even more pronounced. See Fessenden, No-Vote Rates Higher in
Punch Card Count, N. Y. Times, Dec. 1, 2000, p. A29 (reporting that 0.3% of
ballots cast in 30 Florida counties using optical-scanning systems registered no
Presidential vote, in comparison to 1.53% in the 15 counties using Votomatic
punch card ballots). Thus, in a system that allows counties to use different
types of voting systems, voters already arrive at the polls with an unequal
chance that their votes will be counted. I do not see how the fact that this
results from counties’ election of different voting machines rather than a court
order makes the outcome any more fair. Nor do I understand why the Florida
Supreme Court’s recount order, which helps to redress this inequity, must be
entirely prohibited based on a deficiency that could easily be remedied.
B
The remainder of petitioners’ claims, which are the
focus of the CHIEF JUSTICE’s concurrence, raise no significant federal
questions. I cannot agree that the CHIEF JUSTICE’s unusual review of state law
in this case, see ante, at 5–8 (GINSBURG, J., dissenting opinion), is
justified by reference either to Art. II, §1, or to 3 U. S. C. §5. Moreover,
even were such review proper, the conclusion that the Florida Supreme Court’s
decision contravenes federal law is untenable.
While conceding that, in most cases, “comity and respect
for federalism compel us to defer to the decisions of state courts on issues of
state law,” the concurrence relies on some combination of Art. II, §1, and 3 U.
S. C. §5 to justify the majority’s conclusion that this case is one of the few
in which we may lay that fundamental principle aside. Ante, at 2 (Opinion
of REHNQUIST, C. J. The concurrence’s primary foundation for this conclusion
rests on an appeal to plain text: Art. II, §1’s grant of the power to appoint
Presidential electors to the State “Legislature.” Ibid. But neither the
text of Article II itself nor the only case the concurrence cites that
interprets Article II, McPherson v. Blacker, 146 U. S. 1 (1892),
leads to the conclusion that Article II grants unlimited power to the
legislature, devoid of any state constitutional limitations, to select the
manner of appointing electors. See id., at 41 (specifically referring to
state constitutional provision in upholding state law regarding selection of
electors). Nor, as JUSTICE STEVENS points out, have we interpreted the Federal
constitutional provision most analogous to Art. II, §1— Art. I, §4—in the
strained manner put forth in the concurrence. Ante, at 1–2 and n. 1
(dissenting opinion).
The concurrence’s treatment of §5 as “inform[ing]” its
interpretation of Article II, §1, cl. 2, ante, at 3 (REHNQUIST, C. J.,
concurring), is no more convincing. The CHIEF JUSTICE contends that our opinion
in Bush v. Palm Beach County Canvassing Bd., ante, p. ____,
(per curiam) (Bush I), in which we stated that “a legislative wish to
take advantage of [§5] would counsel against” a construction of Florida law that
Congress might deem to be a change in law, id., (slip op. at 6), now
means that this Court “must ensure that post-election state court actions
do not frustrate the legislative desire to attain the ‘safe harbor’ provided by
§5.” Ante, at 3. However, §5 is part of the rules that govern Congress’
recognition of slates of electors. Nowhere in Bush I did we establish
that this Court had the authority to enforce §5. Nor did we suggest that
the permissive “counsel against” could be transformed into the mandatory “must
ensure.” And nowhere did we intimate, as the concurrence does here, that a state
court decision that threatens the safe harbor provision of §5 does so in
violation of Article II. The concurrence’s logic turns the presumption that
legislatures would wish to take advantage of § 5’s “safe harbor” provision into
a mandate that trumps other statutory provisions and overrides the intent that
the legislature did express.
But, in any event, the concurrence, having conducted its
review, now reaches the wrong conclusion. It says that “the Florida Supreme
Court’s interpretation of the Florida election laws impermissibly distorted them
beyond what a fair reading required, in violation of Article II.” Ante,
at 4–5 (REHNQUIST, C. J, concurring). But what precisely is the distortion?
Apparently, it has three elements. First, the Florida court, in its earlier
opinion, changed the election certification date from November 14 to November
26. Second, the Florida court ordered a manual recount of “undercounted” ballots
that could not have been fully completed by the December 12 “safe harbor”
deadline. Third, the Florida court, in the opinion now under review, failed to
give adequate deference to the determinations of canvassing boards and the
Secretary.
To characterize the first element as a “distortion,”
however, requires the concurrence to second-guess the way in which the state
court resolved a plain conflict in the language of different statutes. Compare
Fla. Stat. §102.166 (2001) (foreseeing manual recounts during the protest
period) with §102.111 (setting what is arguably too short a deadline for manual
recounts to be conducted); compare §102.112(1) (stating that the Secretary “may”
ignore late returns) with §102.111(1) (stating that the Secretary “shall” ignore
late returns). In any event, that issue no longer has any practical importance
and cannot justify the reversal of the different Florida court decision before
us now.
To characterize the second element as a “distortion”
requires the concurrence to overlook the fact that the inability of the Florida
courts to conduct the recount on time is, in significant part, a problem of the
Court’s own making. The Florida Supreme Court thought that the recount could be
completed on time, and, within hours, the Florida Circuit Court was moving in an
orderly fashion to meet the deadline. This Court improvidently entered a stay.
As a result, we will never know whether the recount could have been
completed.
Nor can one characterize the third element as
“impermissibl[ e] distort[ing]” once one understands that there are two sides to
the opinion’s argument that the Florida Supreme Court “virtually eliminated the
Secretary’s discretion.” Ante, at 9 (REHNQUIST, C. J, concurring). The
Florida statute in question was amended in 1999 to provide that the “grounds for
contesting an election” include the “rejection of a number of legal votes
sufficient to . . . place in doubt the result of the election.” Fla. Stat.
§§102.168(3), (3)(c) (2000). And the parties have argued about the proper
meaning of the statute’s term “legal vote.” The Secretary has claimed that a
“legal vote” is a vote “properly executed in accordance with the instructions
provided to all registered voters.” Brief for Respondent Harris et al. 10. On
that interpretation, punchcard ballots for which the machines cannot register a
vote are not “legal” votes. Id., at 14. The Florida Supreme Court did not
accept her definition. But it had a reason. Its reason was that a different
provision of Florida election laws (a provision that addresses damaged or
defective ballots) says that no vote shall be disregarded “if there is a clear
indication of the intent of the voter as determined by the canvassing board”
(adding that ballots should not be counted “if it is impossible to determine the
elector’s choice”). Fla. Stat. §101.5614(5) (2000). Given this statutory
language, certain roughly analogous judicial precedent, e.g., Darby v.
State ex rel. McCollough, 75 So. 411 (Fla. 1917) (per curiam), and
somewhat similar determinations by courts throughout the Nation, see cases cited
infra, at 9, the Florida Supreme Court concluded that the term “legal
vote” means a vote recorded on a ballot that clearly reflects what the voter
intended. Gore v. Harris, ___ So. 2d ___, ___ (2000) (slip op., at
19). That conclusion differs from the conclusion of the Secretary. But nothing
in Florida law requires the Florida Supreme Court to accept as determinative the
Secretary’s view on such a matter. Nor can one say that the Court’s ultimate
determination is so unreasonable as to amount to a constitutionally
“impermissible distort[ion]” of Florida law.
The Florida Supreme Court, applying this definition,
decided, on the basis of the record, that respondents had shown that the ballots
undercounted by the voting machines contained enough “legal votes” to place “the
results” of the election “in doubt.” Since only a few hundred votes separated
the candidates, and since the “undercounted” ballots numbered tens of thousands,
it is difficult to see how anyone could find this conclusion
unreasonable—however strict the standard used to measure the voter’s “clear
intent.” Nor did this conclusion “strip” canvassing boards of their discretion.
The boards retain their traditional discretionary authority during the protest
period. And during the contest period, as the court stated, “the Canvassing
Board’s actions [during the protest period] may constitute evidence that a
ballot does or does not qualify as a legal vote.” Id., at *13. Whether a
local county canvassing board’s discretionary judgment during the protest period
not to conduct a manual recount will be set aside during a contest period
depends upon whether a candidate provides additional evidence that the rejected
votes contain enough “legal votes” to place the outcome of the race in doubt. To
limit the local canvassing board’s discretion in this way is not to eliminate
that discretion. At the least, one could reasonably so believe.
The statute goes on to provide the Florida circuit judge
with authority to “fashion such orders as he or she deems necessary to ensure
that each allegation . . . is investigated, examined, or checked, . . .
and to provide any relief appropriate.” Fla. Stat. §102.168(8) (2000) (emphasis
added). The Florida Supreme Court did just that. One might reasonably disagree
with the Florida Supreme Court's interpretation of these, or other, words in the
statute. But I do not see how one could call its plain language interpretation
of a 1999 statutory change so misguided as no longer to qualify as judicial
interpretation or as a usurpation of the authority of the State legislature.
Indeed, other state courts have interpreted roughly similar state statutes in
similar ways. See, e.g., In re Election of U. S. Representative for
Second Congressional Dist., 231 Conn. 602, 621, 653 A. 2d 79, 90–91 (1994)
(“Whatever the process used to vote and to count votes, differences in
technology should not furnish a basis for disregarding the bedrock principle
that the purpose of the voting process is to ascertain the intent of the
voters”); Brown v. Carr, 130 W. Va. 401, 460, 43 S. E.2d 401,
404–405 (1947) (“[W]hether a ballot shall be counted . . . depends on the intent
of the voter . . . . Courts decry any resort to technical rules in reaching a
conclusion as to the intent of the voter”).
I repeat, where is the “impermissible” distortion?
II
Despite the reminder that this case involves “an
election for the President of the United States,” ante, at 1 (REHNQUIST,
C. J., concurring), no preeminent legal concern, or practical concern related to
legal questions, required this Court to hear this case, let alone to issue a
stay that stopped Florida’s recount process in its tracks. With one exception,
petitioners’ claims do not ask us to vindicate a constitutional provision
designed to protect a basic human right. See, e.g., Brown v. Board of
Education, 347 U. S. 483 (1954). Petitioners invoke fundamental fairness,
namely, the need for procedural fairness, including finality. But with the one
“equal protection” exception, they rely upon law that focuses, not upon that
basic need, but upon the constitutional allocation of power. Respondents invoke
a competing fundamental consideration—the need to determine the voter’s true
intent. But they look to state law, not to federal constitutional law, to
protect that interest. Neither side claims electoral fraud, dishonesty, or the
like. And the more fundamental equal protection claim might have been left to
the state court to resolve if and when it was discovered to have mattered. It
could still be resolved through a remand conditioned upon issuance of a uniform
standard; it does not require reversing the Florida Supreme Court.
Of course, the selection of the President is of
fundamental national importance. But that importance is political, not legal.
And this Court should resist the temptation unnecessarily to resolve tangential
legal disputes, where doing so threatens to determine the outcome of the
election.
The Constitution and federal statutes themselves make
clear that restraint is appropriate. They set forth a road map of how to resolve
disputes about electors, even after an election as close as this one. That road
map foresees resolution of electoral disputes by state courts. See 3 U.
S. C. §5 (providing that, where a “State shall have provided, by laws enacted
prior to [election day], for its final determination of any controversy or
contest concerning the appointment of . . . electors . . . by judicial or
other methods,” the subsequently chosen electors enter a safe harbor free from
congressional challenge). But it nowhere provides for involvement by the United
States Supreme Court.
To the contrary, the Twelfth Amendment commits to
Congress the authority and responsibility to count electoral votes. A federal
statute, the Electoral Count Act, enacted after the close 1876 Hayes-Tilden
Presidential election, specifies that, after States have tried to resolve
disputes (through “judicial” or other means), Congress is the body primarily
authorized to resolve remaining disputes. See Electoral Count Act of 1887, 24
Stat. 373, 3 U. S. C. §§5, 6, and 15.
The legislative history of the Act makes clear its
intent to commit the power to resolve such disputes to Congress, rather than the
courts: “The two Houses are,
by the Constitution, authorized
to make the count of electoral votes. They can only
count legal votes, and in doing so must determine,
from the best evidence to be had, what are legal votes
.... The power to determine rests with the two
Houses, and there is no other constitutional tribunal.”
H. Rep. No. 1638, 49th Cong., 1st Sess., 2 (1886) (report
submitted by Rep. Caldwell, Select Committee on
the Election of President and Vice-President).
to make the count of electoral votes. They can only
count legal votes, and in doing so must determine,
from the best evidence to be had, what are legal votes
.... The power to determine rests with the two
Houses, and there is no other constitutional tribunal.”
H. Rep. No. 1638, 49th Cong., 1st Sess., 2 (1886) (report
submitted by Rep. Caldwell, Select Committee on
the Election of President and Vice-President).
The Member of Congress who introduced the Act added:
“The power to judge of the
legality of the votes is a
necessary consequent of the power to count. The existence
of this power is of absolute necessity to the preservation
of the Government. The interests of all the
States in their relations to each other in the Federal
Union demand that the ultimate tribunal to decide
upon the election of President should be a constituent
body, in which the States in their federal relationships
and the people in their sovereign capacity
should be represented.” 18 Cong. Rec. 30 (1886).
“Under the Constitution who else could decide?
Who is nearer to the State in determining a question
of vital importance to the whole union of States than
the constituent body upon whom the Constitution has
devolved the duty to count the vote?” Id., at 31.
necessary consequent of the power to count. The existence
of this power is of absolute necessity to the preservation
of the Government. The interests of all the
States in their relations to each other in the Federal
Union demand that the ultimate tribunal to decide
upon the election of President should be a constituent
body, in which the States in their federal relationships
and the people in their sovereign capacity
should be represented.” 18 Cong. Rec. 30 (1886).
“Under the Constitution who else could decide?
Who is nearer to the State in determining a question
of vital importance to the whole union of States than
the constituent body upon whom the Constitution has
devolved the duty to count the vote?” Id., at 31.
The Act goes on to set out rules for the congressional
determination of disputes about those votes. If, for example, a state submits a
single slate of electors, Congress must count those votes unless both Houses
agree that the votes “have not been . . . regularly given.” 3 U. S. C. § 15. If,
as occurred in 1876, one or more states submits two sets of electors, then
Congress must determine whether a slate has entered the safe harbor of §5, in
which case its votes will have “conclusive” effect. Ibid. If, as also
occurred in 1876, there is controversy about “which of two or more of such State
authorities . . . is the lawful tribunal” authorized to appoint electors, then
each House shall determine separately which votes are “supported by the decision
of such State so authorized by its law.” Ibid. If the two Houses of
Congress agree, the votes they have approved will be counted. If they disagree,
then “the votes of the electors whose appointment shall have been certified by
the executive of the State, under the seal thereof, shall be counted.”
Ibid.
Given this detailed, comprehensive scheme for counting
electoral votes, there is no reason to believe that federal law either foresees
or requires resolution of such a political issue by this Court. Nor, for that
matter, is there any reason to think that the Constitution’s Framers would have
reached a different conclusion. Madison, at least, believed that allowing the
judiciary to choose the presidential electors “was out of the question.”
Madison, July 25, 1787 (reprinted in 5 Elliot’s Debates on the Federal
Constitution 363 (2d ed. 1876)).
The decision by both the Constitution’s Framers and the
1886 Congress to minimize this Court’s role in resolving close federal
presidential elections is as wise as it is clear. However awkward or difficult
it may be for Congress to resolve difficult electoral disputes, Congress, being
a political body, expresses the people’s will far more accurately than does an
unelected Court. And the people’s will is what elections are about.
Moreover, Congress was fully aware of the danger that
would arise should it ask judges, unarmed with appropriate legal standards, to
resolve a hotly contested Presidential election contest. Just after the 1876
Presidential election, Florida, South Carolina, and Louisiana each sent two
slates of electors to Washington. Without these States, Tilden, the Democrat,
had 184 electoral votes, one short of the number required to win the Presidency.
With those States, Hayes, his Republican opponent, would have had 185. In order
to choose between the two slates of electors, Congress decided to appoint an
electoral commission composed of five Senators, five Representatives, and five
Supreme Court Justices. Initially the Commission was to be evenly divided
between Republicans and Democrats, with Justice David Davis, an Independent, to
possess the decisive vote. However, when at the last minute the Illinois
Legislature elected Justice Davis to the United States Senate, the final
position on the Commission was filled by Supreme Court Justice Joseph P.
Bradley.
The Commission divided along partisan lines, and the
responsibility to cast the deciding vote fell to Justice Bradley. He decided to
accept the votes of the Republican electors, and thereby awarded the Presidency
to Hayes.
Justice Bradley immediately became the subject of
vociferous attacks. Bradley was accused of accepting bribes, of being captured
by railroad interests, and of an eleventh-hour change in position after a night
in which his house “was surrounded by the carriages” of Republican partisans and
railroad officials. C. Woodward, Reunion and Reaction 159–160 (1966). Many years
later, Professor Bickel concluded that Bradley was honest and impartial. He
thought that “‘the great question’ for Bradley was, in fact, whether Congress
was entitled to go behind election returns or had to accept them as certified by
state authorities,” an “issue of principle.” The Least Dangerous Branch 185
(1962). Nonetheless, Bickel points out, the legal question upon which Justice
Bradley’s decision turned was not very important in the contemporaneous
political context. He says that “in the circumstances the issue of principle was
trivial, it was overwhelmed by all that hung in the balance, and it should not
have been decisive.” Ibid.
For present purposes, the relevance of this history lies
in the fact that the participation in the work of the electoral commission by
five Justices, including Justice Bradley, did not lend that process legitimacy.
Nor did it assure the public that the process had worked fairly, guided by the
law. Rather, it simply embroiled Members of the Court in partisan conflict,
thereby undermining respect for the judicial process. And the Congress that
later enacted the Electoral Count Act knew it.
This history may help to explain why I think it not only
legally wrong, but also most unfortunate, for the Court simply to have
terminated the Florida recount. Those who caution judicial restraint in
resolving political disputes have described the quintessential case for that
restraint as a case marked, among other things, by the “strangeness of the
issue,” its “intractability to principled resolution,” its “sheer momentousness,
. . . which tends to unbalance judicial judgment,” and “the inner vulnerability,
the self-doubt of an institution which is electorally irresponsible and has no
earth to draw strength from.” Bickel, supra, at 184. Those
characteristics mark this case.
At the same time, as I have said, the Court is not
acting to vindicate a fundamental constitutional principle, such as the need to
protect a basic human liberty. No other strong reason to act is present.
Congressional statutes tend to obviate the need. And, above all, in this highly
politicized matter, the appearance of a split decision runs the risk of
undermining the public’s confidence in the Court itself. That confidence is a
public treasure. It has been built slowly over many years, some of which were
marked by a Civil War and the tragedy of segregation. It is a vitally necessary
ingredient of any successful effort to protect basic liberty and, indeed, the
rule of law itself. We run no risk of returning to the days when a President
(responding to this Court’s efforts to protect the Cherokee Indians) might have
said, “John Marshall has made his decision; now let him enforce it!” Loth, Chief
Justice John Marshall and The Growth of the American Republic 365 (1948). But we
do risk a self-inflicted wound—a wound that may harm not just the Court, but the
Nation.
I fear that in order to bring this agonizingly long
election process to a definitive conclusion, we have not adequately attended to
that necessary “check upon our own exercise of power,” “our own sense of
self-restraint.” United States v. Butler, 297 U. S. 1, 79 (1936)
(Stone, J., dissenting). Justice Brandeis once said of the Court, “The most
important thing we do is not doing.” Bickel, supra, at 71. What it does
today, the Court should have left undone. I would repair the damage as best we
now can, by permitting the Florida recount to continue under uniform
standards.
I respectfully dissent.
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