*1 GORE et al. BUSH et al. 12, 2000 December 2000 Decided December Argued 00-949.
No. *2 Theodore B. Olson argued the cause for petitioners. With him on the brief were Douglas R. Cox, Thomas G. Hungar, Benjamin L. Ginsberg, Michael A. Carvin, Barry Richard, Miguel A. Estrada, George J. Terwilliger III, Timothy E.
Flanigan, William K. Kelley, John F Manning, and Bradford R. Clark. Joseph P. Klock, Jr., argued the cause for Kather- ine Harris et al., respondents under this Court’s Rule 12.6 in support petitioners. With him on the brief were John W.
Little III, Alvin F. Lindsay III, Ricardo M. Martinez-Cid, and Bill Bryant, L. Jr. Briefs in support petitioners were filed by William Kemper Jennings for Glenda Carr et al.; by Robert A. Destro for Stephen Cruce et al.; and George by S. LeMieux and Frederick J. Springer for John E. Thrasher, all respondents under this Court’s Rule 12.6.
David Boies argued the cause for respondents Gore et al. With him on the brief were Laurence H. Tribe, Andrew J.
Pincus, Thomas C. Goldstein, Jonathan S. Massey, Kendall Coffey, and Peter J. Rubin. *
*Briefs of amici curiae urging reversal were filed for the State of Alabama by Bill Pryor, Attorney General, and Charles B. Campbell, Scott L. Rouse, and A. Vernon TV, Barnett Assistant Attorneys General; for the Florida House of Representatives et al. by Charles Fried, Einer El hauge, and Roger J. Magnuson; for William H. Haynes et al. by Jay Alan Sekulow, Thomas P. Monaghan, J. Roth, Stuart Colby M. May, James M. Henderson, Sr., David A. Cortman, Bell, B. Paul Griffin D. Clement, and Jeffrey S. Bucholtz.
Briefs of amici curiae urging affirmance were filed for the Brennan Center for Justice at New York University School of Law by Burt Neu- borne; and for Robert A. Butterworth, Attorney General of Florida, by Curiam.
Per I or Court Supreme 2000, December On County tabulate Leon Court Circuit dered ordered also County. It in Miami-Dade ballots 9,000 hand iden votes totals vote certified inclusion identified votes County and Beach Palm tified Jr., Gore, Albert President County for Vice Miami-Dade Presi candidates Democratic Lieberman, Joseph Senator noted State President. Vice dent gain net *3 asserted Bush George W. petitioner County was Beach Palm in Gore President Vice for dispute resolve Circuit directed votes, and The 6.n. 1243, 1248, 2dSo. Harris, 772 v. Gore remand. recounts manual require would relief held further court had “undervotes” so-called where counties Florida all in all ordered court tabulation. manual subject been Rich and Bush Governor once. begin at recounts manual Vice and President for candidates Republican Cheney, ard this stay of a for application emergency an President, filed application, granted we December On mandate. certiorari, a writ for petition aas application treated p. Post, certiorari. granted and controversy are present leading proceedings Palm Bush opinion our detail some discussed curiam) (per p. ante, Bd., Canvassing County Beach Pres- following day 8,2000, I). (Bush November On reported Elections Division election, idential re- and votes, 2,909,135 received had Bush petitioner margin votes, 2,907,351 received had Gore spondent General, Attorney Hancock, Deputy F. se, Paul Butterworth, pro Mr. Tucker. J. Kimberly General, and Attorney Vail, Assistant Jason for filed were curiae of amici Briefs Carolyn Terris, J. Bruce by al. et Harris Robert Honig; Earl David Bern- J. Roger Adams, A. Millian, Sarah L. Pravlik, Kathleen Smith Wasserman, se. pro F. Michael stein; 1,784for Governor Bush. Because Governor Bush’s margin of victory was less than “one-half of 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 a dimin- ished margin. Vice President Gore sought then manual re- counts in Volusia, Palm Beach, Broward, and Miami-Dade pursuant Counties, to Florida’s protest provisions. Fla. Stat. Ann. 2001). (Supp. 102.166 A dispute arose con- cerning 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 Su- preme Court, however, set the deadline at November 26. granted
We
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 78. On
December 11, the Florida Supreme Court issued a decision
on remand reinstating that date. Palm Beach County Can-
vassing Bd. v. Harris,
On November 26, the Florida Elections Canvassing Com- mission certified results of the election and declared *4 Governor Bush the winner of Florida’s 25 electoral votes. On November 27, Vice President pursuant Gore, to Florida’s
contest provisions, filed a complaint in Leon County Circuit Court contesting the certification. Fla. § Stat. Ann. 102.168 2001). (Supp. He sought pursuant relief § to 102.168(3)(c), provides which that “[Receipt of a number of illegal votes rejection or of a number of legal votes sufficient to change place or in doubt result of the election” grounds shall be for a contest. The Circuit Court denied relief, stating that Vice President Gore failed to meet his burden proof. of He appealed to the First District Court Appeal, of which certi- fied the matter to the Florida Supreme Court.
Accepting jurisdiction, the Florida Supreme Court af- firmed part in and reversed in part. Gore v. Harris, 772 Court Circuit the that held (2000). court The 2d
So. challenge to Gore’s President Vice reject to correct been had challenge to his County and Nassau in certified results the determination Canvassing Board’s County Beach Palm the statu- the in not, county were that in cast ballots 3,300 that “legal votes.” phrase, tory had Gore President Vice that held Court Supreme The 102.168(3)(c) re- under proof of burden his satisfied failure County’s to Miami-Dade challenge his spect ma- the which ballots 9,000 count, by manual tabulate, (“under- President vote a detect failed had chines votes”). election, the Noting closeness the 1256. Id., at no can there record, “[o]n this that explained court un- 9,000 within votes legal are there question this results place sufficient votes counted determined as vote,” “legal A 1261. at Id., in doubt.” indi- 'clear ais there which in “one Court, ” court 1257. at Id., voter.’ intent of the cation ballots 9,000 recount hand a ordered therefore provisions contest Observing that County. Miami-Dade any “provide judge circuit discretion broad vest §102.168(8), circumstances,” such under appropriate relief could the Circuit held further Supreme Court Canvassing Elections Supervisor “the order coun- all officials, public necessary as well Boards, tabula- recount manual conducted ties tabulation said forthwith, so to do ... undervotes tion ballots where counties individual place in take at 1262. Id., located.” Beach Palm determined also Supreme Court re- manual earlier County, in their Miami-Dade County and votes, legal gain net identified had counts, Reject- Id., at Gore. President *5 Vice respectively, County Beach Palm conclusion Court’s Circuit ing the sub- votes net include authority to lacked past mitted the November 26 deadline, the Supreme Court explained that the deadline was not intended to exclude votes identified after that date through ongoing manual re- counts. As to Miami-Dade County, the court concluded that although the 168 votes identified were the result partial of a recount, they were “legal votes [that] could change the out- come of the election.” Ibid. Court therefore directed the Circuit Court to include those totals in the certi- fied results, subject to resolution of the actual vote total from partial Miami-Dade recount. 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 fail-
ing to comply with 3 U. S. C. 5, and whether the use of standardless manual recounts violates Equal Protection equal and Due Process Clauses. With respect to pro- tection question, we find a violation of 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 if common, heretofore phenome- unnoticed, non. Nationwide statistics reveal that an estimated 2% ballots cast do not register a vote for President for what- ever 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 (Nov. Uncounted, AP Online 28,2000); Kelley, Ballot- ing Problems Not Rare But Only in a Very Close Election Do Mistakes and Mismarking Make a Difference, Omaha (Nov. World-Herald 15,2000). In certifying election results, the votes eligible for inclusion in the certification are the votes meeting the properly established legal requirements.
104 balloting machines punchcard shown has case This which ballots of number unfortunate an produce
can the After voter. by the way complete clean, ain punched nationwide bodies legislative likely counting, it is current machin- and mechanisms the improve ways to examine will voting. ery for
B right constitutional federal no has citizen individual The States United the of President the for electors for vote to statewide chooses legislature state the until and unless appoint to power its implement to means the as §1. II, Const., Art. S.U. college. electoral the members McPherson in statement the for source the is This legislature’s state the (1892), that 851,S. 146 U. Blacker, ple- is electors appointing for manner the to select power which itself, electors the select chooses, so may, it if nary; it several in legislatures by state used manner the was indeed Constitution. our framing of the after many years for States in and voter, the favored now History has 28-33. Id., at vote themselves citizens the States several the each the vests legislature the When electors. Presidential vote right the people, its in President vote right to one and fundamental; is prescribed has legislature as weight equal lies nature fundamental of its source each owed dignity equal vote each accorded franchise granting course, after State, voter. power back can take II, Article context special doubt no (“ is ‘[T]here id., at See electors. appoint time, any at power resume legislature right of abdicated’”) (quoting away nor taken neither can for it (1874)). Sess., 1st Cong., 43d 395, Rep. No. S. allo- initial than more protected vote right towell applies protection Equal franchise. cation right granted Having once exercise. of its manner arbitrary by later not, may State terms, equal to vote over vote person’s one value treatment, disparate of another. g., See, e. Harper v. Virginia Bd. Elections, 383 U. S. (1966) (“[O]nce *7 the franchise granted is to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amend ment”). It must be remembered that “the right of suffrage can be denied a debasement or dilution of the weight of a citizen’s just vote as effectively as by wholly prohibiting the free exercise of the franchise.” Reynolds v. Sims, 377 U. S. (1964).
533, 555 There is no difference between the two sides of present controversy on these propositions. basic Respondents say that the very purpose of vindicating right justi- vote fies the procedures recount now at issue. The question be- fore us, however, is whether the procedures recount Supreme Florida 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 perforated to be by a stylus but which, either through error or deliberate omission, have not per- been forated with sufficient precision for a machine register perforations. In some piece cases a of the card—a chad—is hanging, say, by two corners. In other cases there is no separation just at all, an indentation. The 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 neces- sary to decide whether the Florida Supreme Court had authority under legislative scheme for resolving elec- tion disputes to define what legal a vote is and to mandate manual recount implementing that definition. The recount mechanisms implemented in response to the decisions of the Florida Supreme Court do not satisfy the minimum re- quirement for nonarbitrary treatment of voters necessary to secure the right. fundamental Florida’s basic command for the count of legally cast votes is to consider “intent of unobjectionable is This 2d, at 772 So. voter.” prob- The starting principle. proposition abstract an to ensure standards specific absence inheres lem rules of uniform formulation application. equal its is recurring circumstances these on based intent determine necessary. conclude, and, we practicable intent searching for from refrain not does law cases some circumstances; and multitude ain actor susceptible intent ascertain command general however, instance, this In refinement. further much how but a witness to believe whether is not question inanimate an scratches or holes or marks interpret might said, it is which, paper cardboard piece *8 object, a count. machine during the vote aas registered have not search The person. anot thing, a confronts factfinder The ensure designed rules specific by be confined can intent treatment.
uniform evaluation unequal led has here rules those want (Wells, J.,C. 1267 at id., See respects. in various of ballots not or count canvassing board county (“Should a dissenting) success- is able voter where chad’ ‘dimpled a count ballot? that contest every other chad dislodge the fully seems As disagree”). canvassing boards county Here, standards argument, oral acknowledged at been only vary might ballots contested rejecting accepting county from single a within county indeed but county from another. team recount one monitor A examples. some provides record that observed he at trial County testified Miami-Dade dif- applied canvassing board county members three 499 497, Tr. legal vote. defining a standards ferent at revealed also trial testimony at 2000). (Dec. And during the standards evaluative changed its county one least began example, County, for Beach Palm counting process. counting precluded which guideline awith process consid- rule ato switched chads, attached completely ered a vote to be legal any if light could be seen through a chad, changed back to the 1990rule, and then any abandoned pretense of per se rule, only to have a court order that the county consider dimpled legal. chads This is not process guarantees sufficient equal treatment. An early case in our one-person, one-vote jurisprudence arose when a State accorded arbitrary disparate treat- ment to voters in its different counties. Gray v. Sanders, (1963). U. S. 368 The Court found a constitutional vio- lation. We relied on these principles in the context of the Presidential process selection in Moore 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 “[t]he idea that one group can granted greater voting strength than another is hostile to the one man, one vote basis of repre- our government.” sentative 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 com- pleted until after the original November 14 certification *9 the Secretary, were to be part considered of the new certified vote totals even though the county certification was not contested Vice President Gore. Yet each of counties used varying standards to determine what was legal a 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 differ- ence 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 only not those ballots which show no vote but also those which contain more than one, counted be category will Neither overvotes. so-called
the argu- oral At concern. trivial anot is This machine. by the 110,000 many as as are there estimated respondents ment, ballot whose citizen result, the aAs statewide. overvotes a for vote failed he because machine by a read not was have may still by machine readable way ain candidate hand, other on the recount; manual ain counted vote his way discernible ain candidates two marks who citizen have opportunity same have not will machine by the ballot examination manual if a even count, vote his Furthermore, intent. indicia requisite reveal would is of which only one candidates, two marks who citizen even counted his vote have will machine, by the discernible The ballot. invalid an read been should it though based counts of vote inclusion Court’s Supreme State reme- with concerns exemplifies standards variant these way. under were processes dial protection equal a further yet analysis brings That partial included court by the certified votes The problem. Supreme Florida county, Miami-Dade. one from total recounts assurance no gives thus decision Court’s Indeed, complete. be must certification final in a included consistent would it submission respondents’ is it whatever include procedures recount rules certification, final time by the done counts partial permit decision Court’s Supreme Florida interpret we “practical (noting 1261-1262,n. at 2d, So. See this. certifying but election, outcome may control difficulties” nonetheless). accommodation This total Miami-Dade partial estab- period contest truncated from results doubt no County Beach Palm by lished urging. own respondents’ Harris, at Canvassing Bd. v. concern. constitutional diminish does time press equal ignoring excuse general anot speed desire A *10 guarantees. protection In addition to these difficulties the process actual by which
the votes were to be counted under the Florida Court’s decision raises further concerns. That order did not specify who would recount the ballots. The county can- vassing boards were pull forced to together ad hoc teams of judges from various Circuits who had no previous training in handling and interpreting ballots. Furthermore, while others were permitted to they observe, prohibited were from objecting during the recount.
The process, recount in its features here described, is in- consistent with the procedures minimum necessary pro- tect the fundamental right of each voter in special in- stance of a statewide recount under the authority of a single state judicial officer. Our consideration is limited to the present circumstances, problem of equal protection processes generally presents many complexities. question before the Court is not whether local entities, in the exercise of their expertise, may develop sys- different tems for implementing elections. Instead, we presented with a situation where a state court with 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 rudi- mentary requirements equal treatment and fundamental fairness are satisfied. Given the Court’s assessment that the process recount
underway was probably being conducted in an unconsti- tutional manner, the Court stayed the order directing recount so it could hear this case and render an expedited decision. The contest provision, as it was mandated State Supreme Court, is not well calculated to sus- tain the confidence that all citizens must have in the out- come of elections. The State has not shown that proce- its dures include the necessary safeguards. problem, instance, of the estimated 110,000 overvotes has not been
110 to attention called Wells Justice although Chief
addressed, at 2d, So. 772 See opinion. dissenting his in concern the 26. n. 1264, to identified difficulties the of consideration due Upon conducted be cannot recount that obvious isit point, this protection equal of requirements with compliance in It work. additional substantial without process due and for (after opportunity adoption only the not require would determining for standards statewide adequate of argument) imple- procedures practicable and vote, legal ais what disputed any of review orderly judicial also them, but ment Secretary has addition, In arise. might that matters re- ballots portion only a recount that advised screen be used equipment tabulation vote that quires were machines which for function undervotes, out required, also were overvotes recount aIf designed. necessary. Use be screening would second even perhaps software any new purpose, this for equipment accuracy evaluated to be have would it, developed for §101.015 Ann. Stat. by Fla. required Secretary, as by the 2001). (Supp. legisla- that said has Florida Court Supreme fully in “participate] electors the State’s intended ture § 5.C. S. 3 U. provided process,” electoral federal County Canvass- Beach Palm also see 1289; 2d, at So. 2000). That (Fla. 2d 772 So. Harris, ing Bd. contest controversy or any requires turn, statute, electors selection conclusive a lead designed is us, upon is date That by December completed State under place procedure recount no is there consti- minimal comports order Court’s Supreme any recount evident it Because standards. tutional unconstitu- bewill date December meet seeking to reverse discussed, we we reasons tional re- ordering a Florida of the judgment proceed. count
Seven Justices of the Court agree that there are consti- problems tutional with the recount ordered Supreme Court that demand a remedy. post, See at 134 *12 J., dissenting); post, at 145-146 (Breyer, (Souter, J., dis- senting). The only disagreement is as to the remedy. Be- cause the Florida Supreme Court has said that the Florida Legislature intended to obtain the safe-harbor benefits of 3 U. S. C. §5, Breyer’s Justice proposed remedy—remand- ing to the Florida Supreme Court for its ordering of a consti- tutionally proper contest until December contemplates 18— action in violation of the Florida Election Code, and hence could not part be of an “appropriate” order authorized by Fla. Stat. §102.168(8) Ann. 2001). (Supp.
authority than are the Members of this Court, and none None are more conscious of the vital limits [*] [*] [*] judicial stand more in admiration of the Constitution’s design to leave the selection of the President to the people, through their legislatures, and to political sphere. When con- tending parties invoke process of the courts, however, it becomes our unsought responsibility to resolve the federal and constitutional issues judicial system has been forced to confront.
The judgment of the Supreme Court of Florida is reversed, and case is remanded for further proceedings not incon- sistent 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 Scalia and Justice Thomas join, Justice Justice Thomas join, concurring. joinWe the per opinion. curiam We write separately be- cause we believe there are grounds additional that require us to reverse the Court’s decision.
I an with but election, ordinary an with not here dealWe Bur- In States. United of the President election (1934), said: we 534, S.U. States, United roughs agents officers electors presidential “While S. 134 U. (In Green, re government federal and under, functions federal they [(1890)]), exercise by, conferred authority virtue discharge duties President States. United Constitution nation. power executive vested character vital his importance safety welfare upon effect to and relationship its strongly stated.” too cannot people whole 794- *13 780, S.U. Celebrezze, v. Anderson in Likewise, of context “[I]n the omitted), , said: we (footnote (1983) implicate restrictions state-imposed election, Presidential a President For interest. national important uniquely only are States United of President Vice Nation.” in the the voters all represent who officials elected compel federalism respect for comity and cases, most In state of issues on courts state of decisions defer to us de- understanding our reflects practice That law. of the pronouncements definitive are courts cisions Tomp- R. Co. Erie Cf. sovereigns. as States of will cases, the ordinary in course, (1938). Of 64 S.U. kins, gov- a State’s branches among powers distribution law, constitutional federal questions no raises ernment re- government requirement to the subject § But IV, Art. Const., S.U. See character. publican Constitution which cases exceptional fewa there branch particular a power confers duty imposes a II, Article them. one This government. a State’s such appoint, shall "[e]ach State provides § 2, cl. 1, electors direct,” may thereof Legislature Manner added.) Thus, (Emphasis President. Vice President the text of the election law itself, just and not its interpre- tation the courts of the States, takes on independent significance. In McPherson v. Blacker, 146 U. (1892), S. 1 explained we II, Art. §1, cl. 2, “convey[s] the power broadest determination” and “leaves it to the legislature exclusively
to define the method” of appointment.
cl. to the Florida statutory scheme, which, as the Florida Supreme Court acknowledged, took that statute into ac- count. Section 5 provides that the State’s selection of elec- tors “shall be conclusive, and govern shall in the counting of the electoral votes” if the electors are chosen under laws prior enacted day, and if the process selection is completed days six prior to the meeting of the electoral college. As we noted in Bush v. Palm Beach County Can- vassing Bd., ante, at 78:
“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 ‘safe harbor’ would counsel against any construction of the Election *14 Code Congress might deem to be change a in the law.” If we are to respect the legislature’s Article II powers, there- fore, we must ensure postelection state-court actions do not frustrate legislative the 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 elec- tions and to oversee disputes to Secretary of
114 2001), §97.012(1) (Supp. Ann. Stat. (Secretary), Fla.
State
102.168(8). Isolated
102.168(1),
§§
courts,
circuit
state
to
in-
one
than
more
of
admit
may well
code
the
of
sections
legislative
the
of
coherence
general
the
but
terpretation,
as
so
interpretation
by judicial
altered
be
may not
scheme
of
apportionment
provided
statutorily
change the
wholly
to
any election
In
bodies.
various
these
among
responsibility
can
Court
Supreme
the
election,
Presidential
a
but
as
executives
Florida’s
to
deference
much
asor
little
as
give
Court
this
concerned, and
II
Article
far
so
chooses,
it
with
But,
actions.
court’s
the
question
to
cause
no
will
both
must
court
the
election,
Presidential
ato
respect
choosing
inII
Article
under
role
legislature’s
of
mindful
those
to
deferential
electors
appointing
of
manner
carry out
to
legislature
by the
empowered
expressly
bodies
mandate.
constitutional
its
infringed
has
court
state
whether
determine
order
In
exam-
necessarily must
authority, we
legislature’s
upon
action
prior
existed
itas
State
law
ine
courts
state
defer
generally
we
Though
court.
Wilbur,
Mullaney v.
g.,
e.
see,
state
law—
interpretation
which
in
areas
course
(1975)
U. S.
—there
independ-
an
undertake
Court
this
requires
Constitution
law.
state
analysis
deferential,
still
if
ent,
Patterson,
rel.
ex
Alabama
NAACP
in
example,
For
without
were
we
argued
(1958), was
it
S.U.
cor-
pursued
had
petitioner
because
jurisdiction
Petitioner
courts.
remedy Alabama’s
appellate
rect
Su-
Alabama
certiorari
writ
state-law
sought a
had
according mandamus,
writ
when
preme
inade-
ground
state-law
this
found
We
proper.
court, was
“unable
were
we
because
jurisdiction
our
to defeat
quate
Alabama
holding of
procedural
reconcile
Id., at
precedent.
Alabama
prior
Court”
independent
our
novel,
sowas
ground
state-law
purported
*15
estimation,
“petitioner
could not fairly be deemed to
apprised
been
of its existence.” Id., at years
Six
later we decided Bouie v. City Columbia, 378
U. S.
(1964),
in which the state court had held, contrary
to precedent, that the
trespass
state
law applied to black
sit-in demonstrators who had consent to
private
enter
prop-
erty but were then asked to leave. Relying upon NAACP,
we concluded that the South Carolina Supreme Court’s inter-
pretation of a
penal
state
statute had impermissibly broad-
ened the scope of that statute beyond what a fair reading
provided, in violation of
process.
due
See
This inquiry does not imply a disrespect for state courts but rather a respect for the constitutionally prescribed role legislatures. To attach definitive weight to pro- nouncement of a state court, when the very question at issue is whether the court has actually departed from the statu- tory meaning, would be to abdicate our responsibility to en- force the explicit requirements of Article II. 1Similarly, our jurisprudence requires us to analyze the “background
principles” of state property law to determine whether
there has been a
taking of property in violation of the Takings Clause. That constitutional
guarantee would, of course, afford no protection against state power if our
inquiry could be concluded by a state supreme court holding that state
property law accorded the plaintiff no rights.
See Lucas v. South Caro
lina Coastal Council,
II authority, the of grant constitutional its Acting pursuant perfectly if detailed, created has Legislature appointment for provides statutory scheme crafted, Ann. Stat. Fla. election. by direct electors Presidential ac the for “[vjotes cast statute, the (1992). Under § 103.011 shall President Vice and President for candidates tual supporting electors presidential the for cast votes as counted the designated has legislature The Ibid. candidates.” such responsibil the with officer,” election “chief the Secretary as application, uniformity the maintain and interpretation “[o]btain ity to Fla. laws.” election the and operation, has legislature 2001). state The (Supp. §97.012 Ann. Stat. of admin duties the canvassing boards county delegated responsible are boards Those §102.141. elections. istering Canvassing Com Elections state the results providing for State, Secretary of Governor, comprising mission, §102.111. Elections. Division Director and (“The (1975) 5n. 259, 268, 2dSo. Esteva, 323 Boardman Cf. branch executive committed ... process election charged all officials designated duly through government officials] [ofthese judgments [The] .... duties specific with presumptively courts by the regarded to be entitled .”). . correct. canvassing boards place, taken has election After votes, count precincts, from returns receive conduct less, by 0.5% defeated was a candidate event (Supp. §102.141(4) Ann. Stat. Fla. mandatory recount. elec- certified file must canvassing boards county 2001). The p.m. by 5 State Department returns tion 102.112(1).. Elec- § following election. day seventh results certify then must Canvassing Commission tions §102.111(1). election. both mechanisms provided also has legislature contesting certified returns election protesting election results. Section governs 102.166 protests. Any protest must be prior filed to the certification of results county canvassing § board. 102.166(4)(b). protest Once a has been “[t]he filed, county canvassing board may authorize a manual recount.” 102.166(4)(c). If a sam- ple recount conducted pursuant § 102.166(5) *17 “indicates an error in the vote tabulation which could affect the outcome of the election,” the county canvassing board is instructed “(a) to: Correct the error and recount the remaining pre- cincts with the vote system; (b) tabulation Request the De- partment of State to verify the tabulation (c) software; or Manually recount all §102.166(5). ballots,” 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 §by controlled 102.168. grounds The for contest- ing an election include “[r]eceipt of a number of illegal votes or rejection of a number of legal votes sufficient to change place in doubt the result of the election.” 102.168(3)(c). Any contest must be filed in the appropriate Florida circuit court, §102.168(1), and the canvassing board or board is the proper party § 102.168(4). defendant, Section 102.168(8) provides “[t]he circuit judge to whom the con- test 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, prevent or correct any alleged wrong, and provide any relief appropriate under such circumstances.” In Presidential elections, the contest period necessarily terminates on the date by set 3 U. S. C. §5 for concluding State’s “final determination” of elec- tion controversies. In its first
. decision, Palm Beach Canvassing Bd. v. Harris, 772 So. (2000) 2d (Harris I), the Florida Supreme Court extended the 7-day statutory certification deadline estab- code, modification This legislature.2 by the
lished necessarily shortened period, protest lengthening Underlying elections. Presidential period contest short- deadline certification extension clear presumably, was, period contest of the changing significance: matter awas certification implication validity, mak- presumptive enjoy would winner certified uphill an losing candidate by the proceeding ing contest empties court however, opinion, latest its In battle. during the consequence legal virtually all certification enacted provisions from departs doing so contest, and Legislature. by the decisions canvassing boards’ determined court certification past ballots recount whether regarding ’ by Har- established deadline (even certification deadline Code Election although novo, de I) reviewed ris boards, recount whether discretion clearly vests *18 rejection Secretary’s subject deadlines strict sets Stat. Fla. See tardiness. monetary fines and tallies late court Florida Moreover, 2001). (Supp. §102.112 Ann. contest during the arriving tallies vote late all that held certification automatically included be should period (even certification deadline certification regardless eliminating virtually I), thus by Harris established deadline disregard Secretary’s discretion and deadline both it.3 violate that recounts and vote,” “legal interpretation court’s Moreover, plainly recount, contest-period order decision its hence statutory law Florida scheme. legislative from departed im~ counting of require thought to reasonably be cannot Supreme Florida case; remanded decision vacated We 11, December opinion a new judgment the same reissued Court 2d So. Harris, v. Bd. Canvassing Palm, County Beach Court Circuit ordered Specifically, President Vice identified votes those totals vote certified in the include County. Miami-Dade County Beach Palm Gore properly marked ballots. Each Florida precinct before elec- day tion provides instructions on how properly to cast a vote, § Fla. Stat. Ann. (1992); 101.46 each polling place on elec- day tion contains a working model of the voting machine it uses, Fla. § Stat. Ann. 101.5611(Supp. 2001);and each voting booth contains sample § ballot, 101.46. precincts In using punchcard ballots, voters are punch instructed to 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.” Instructions to Voters, quoted in Brief for Respondent Harris et al. 13, n. 5.
No reasonable person would call it “an error in the vote tabulation,” Fla. Stat. §102.166(5) Ann. (Supp. 2001), or a “rejection legal of... § votes,” 102.168(3)(c),4when 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 Florida Supreme opinion Court’s attributes to the legislature is one in which machines are required “capable of cor- rectly counting votes,” 101.5606(4),but which nonetheless regularly produces elections in which legal votes pre- dictably not tabulated, so in close elections manual recounts are regularly required. This is of course absurd. *19 The Secretary, who is authorized law to issue binding in- terpretations of the §§ Election Code, rejected 97.012,106.23, peculiar
this reading of the statutes. See DE 00-13 (opinion of the Division Elections). The Florida Supreme Court,
4It is inconceivable that what constitutes a vote that must be counted under the “error in the vote tabulation” language of the protest phase is different from what constitutes a vote that must be counted under the “legal votes” language of the phase. contest
120 interpretations, Secretary’s the defer
although it must 625 Committee, Political Tampa Back Take v. Krivanek see inter reasonable her 1993), rejected (Fla. 844 840, 2d So. Beach Palm See one. peculiar embraced and pretation (2000) 1273 2d So. Harris, v. Canvassing Bd. County III). (Harris in ease, earlier of the remand in our indicated as we But intent expressed clearly election Presidential reading basis nois there And prevail. must legislature improperly counting of requiring statutes Florida Supreme examination an ballots, as marked anal parse willWe shows. analysis textual Court’s provision principal note except to here, ysis 101.5614(5), Chief was, as relied, it which on Code Election Harris, v. Gore dissent his out pointed Wells Justice entirely irrelevant. II), (Harris (2000) 1243, 2d So. the Gore supporting (who was Attorney General State’s before never here argument oral challenge) confirmed conducted been recount a manual had election present should “undervotes” contention of the basis Arg. of Oral Tr. intent. voter to determine examined been T. Bd., O. Canvassing County Beach Palm v. in Bush Canvassing County Broward cf. 39-40; pp. 00-836, No. (de 1992) App. (Fla. Ct. 508, 509 2d So. Hogan, Board “hanging with ballots count failure recount nial estab this away from step chads”). court For the paper official Secretary, the by the prescribed practice, lished [ojbtain ... “responsibility legislature by the charged operation, application, uniformity in the maintain §97.012(1), to de was laws,” interpretation scheme. legislative from part
I I I Flor- by the remedy ordered nature scope and to take wish” “legislative jeopardizes ida *20 advantage of the safe provided harbor by 3 § U. S. C. 5. Bush v. Palm Beach County Canvassing Bd., ante, at (per curiam). December 12, 2000, is the last date for a final de termination of the Florida electors that § will satisfy 5. Yet in the late afternoon of December 8th—four days before this deadline—the Court of Florida ordered recounts of tens of thousands of so-called spread “undervotes” through 64 of the State’s 67 counties. This was done in a search for perhaps certainty elusive— as to the exact count delusive— of 6 million votes. But no one claims that these ballots have not previously been tabulated; they were initially by read voting machines at the time of the election, and thereafter reread by virtue of Florida’s automatic provi recount sion. No one claims there was any fraud in the election.
The Supreme Court of Florida ordered this additional re count under the provision of the Election Code giving the circuit judge the authority to provide relief that “appropriate under such circumstances.” Fla. Stat. Ann.
§ 102.168(8) 2001). (Supp.
Surely when the Florida Legislature empowered the courts of the grant State to “appropriate” relief, it must have meant relief that would have become final cutoff date of U. S. C. In light of legal inevitable challenges and ensuing appeals to the Supreme Court of Florida 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 undervotes in these
counties can be [counted] within
required
time frame,”
772 So. 2d, at 1262, n. 22, it made no assertion that the seem-
ingly inevitable appeals could
disposed
of in that time.
Although the Florida Supreme Court has on occasion taken
over year
to resolve disputes over local elections, see, g.,
e.
Beckstrom v. Volusia County Canvassing Bd.,
election), heard has it for deadlines féderal But promptness. great with case a such even permit not simply do election Presidential process. shortened noted: dissent
theAs ballots questionable remaining], all days [the four “In to appointed officer judicial by the reviewed be must to the open process ain voter intent discern made be provision a dictates Fairness public. is ballot particular how to object party either must period time short Additionally, this counted. can- this submit respectfully I review. judicial allow presidential taking Florida's without completed be not creating the provision, harbor the safe outside electors nearly disenfranchising those possibility very real their correctly cast are able who voters million six (opinion 2d, at 772 So. day.” on ballots omitted). (footnote J.) Wells, C. majority “[T]he concern: this echoed dissenters other by law requirements essential from departing is which and achieve impossible remedy which providing (Harding, J., dis- at Id., chaos.” ultimately lead will J.). Shaw, joined senting, intent legislative light of factors, these all Given bring Florida Supreme Court Florida by the identified rem- 5, the C.S.U. 3of provision harbor” “safe within be cannot by the edy prescribed signifi- It December one “appropriate” an deemed place statutory framework from departed cantly proceedings further open-ended and authorized 7, November thereby pre- by December completed could which date. by that determination venting a final per given those addition reasons, in these For reverse. would opinion, we curiam Justice Stevens, Ginsburg whom Justice Breyer Justice join, dissenting.
The Constitution assigns to the States the primary respon- sibility for determining the manner of selecting the Presi- dential electors. See Art. II, §1, cl. 2. questions When arise about the meaning of state laws, including election laws, it is our practice settled to accept 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 judicial federal interven- tion in state elections. This is not such an occasion.
The
questions
federal
that ultimately emerged in this case
are not substantial.
provides
Article II
that “[e]ach State
shall appoint, in such Manner as
Legislature
may
thereof
direct, a Number
Ibid,
of Electors.”
(emphasis added).
It
does not create
legislatures
state
out of whole cloth, but
rather takes them as they come—as creatures born of, and
by,
constrained
their state constitutions. Lest there
any
doubt, we stated over
years
100
ago in McPherson v.
Blacker, 146 U. S.
(1892),
1, 25
“[w]hat
that
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 ob-
served
“[t]he
that
[State’s] legislative power is the supreme
authority except limited
the constitution of State.”
Ibid.; cf. Smiley v. Holm, 285 U. S.
(1932).1
355, 367
legislative power in Florida
subject
judicial
pur-
review
1“Wherever
the term ‘legislature’ is used in the Constitution it is neces
sary to consider the nature of the particular action in view.”
S.,
285 U.
at 366.
It is perfectly clear that the meaning of the words “Manner” and
“Legislature” as
in
used
II,
Article
1,§ parallels the usage in
I, §4,
Article
rather
than the language in Article V. U. S. Term Limits,
Inc. Thorn
v.
ton, 514 U.
779,
S.
(1995).
I,
Article
§4, and
II,
Article
1,§ both call
upon legislatures to act in a lawmaking capacity whereas Article V simply
calls on the legislative body to deliberate upon a binary decision. As a
result, petitioners’
reliance on Leser v. Garnett, 258 U. S.
(1922),
and
(No.
Hawke
Smith
1),
in Constitution State in constraints the Moreover, from lature deci- own Legislature’s Florida it. created indicates elections all unitary code employ a sion role same play Supreme Florida intended it in re- played historically has it elections Presidential in ex- Court’s disputes. solving electoral wholly consist- was therefore jurisdiction appellate ercise authority grant by, contemplated indeed with, ent II. Article 3to pursuant Congress, stating that hardly needs It upon duties any affirmative impose 5, did C.S.U. “violate.” could branches governmental their States elec- select States harbor safe § provides Rather, es- methods” or other judicial “by elections contested tors like day. Section election prior by laws tablished judiciary state involvement assumes II, Article dis- resolving election laws interpreting *23 grants II §5 Article nor Neither laws. those under putes views their authority to substitute special any judges federal law. state matters judiciary those for failure asserting correct petitioners Nor precise detail specify Florida Ann. Stat. Fla. voter,” of the “intent which manner rises determined 2001), tois 101.5614(5)(Supp. § viola- such found We violation.2 constitutional of a level practice is consistent standard statutory standard voter” “intent an either apply States, which majority in ballot standard choice” elector’s determine “impossible an standard: voter” “intent an use States following recounts. canvassing 2000) (standard 16-645(A) (Supp. § Ann. Stat. Rev. Ariz. absentee (standard (1999) 9-150a(j) § Stat. Gen. votes); Conn. write-in §3-12-1-1 Code Ind. presumptions); conclusive three including ballots, Code, Art. Ann. (1993); Md. §1(13) 21-A, Ann., Tit. Stat. Rev. (1992); Me. Gen. ballots); Mass. absentee (standard for (2000 Supp.) 302(d) § 33, 11— Mich. primaries); Presidential standard (1991) (applying §70E Laws .125 tion when individual votes within the same State were weighted g., unequally, see, e. 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 a vote has been legally cast. And there is no reason to think that the guidance provided to the factfinders, specifically various canvassing boards, by the “intent of the voter” standard is any less sufficient —or will lead to results any less than, for example, uniform — “beyond reasonable doubt” standard employed every day by ordinary citizens in courtrooms across this country.3
Comp. Laws §168.799a(3) (Supp. 2000); Mo. Rev. Stat. §115.453(3) (Cum. 1998) Supp. (looking to voter’s intent where there is substantial compli ance with statutory requirements); Tex. Elec. Code §Ann. 65.009(c)(1986); Utah § Code Ann. 20A-4-104(5)(b) (Supp. (standard 2000) for write-in votes), §20A-4-105(6)(a) (standard for mechanical ballots); Vt. Stat. Ann., 17, § Tit. 2587(a) (1982); Va. Code Ann. §24.2-644(A) (2000);-Wash. Rev. § Code 29.62.180(1) 2001) (Supp. (standard for write-in votes); Wyo. Stat. §22-14-104
Ann. (1999). The following States employ a standard in which a vote is counted unless it is “impossible to determine the elector’s [or voter’s] choice”: Ala. Code §11-46-44(c) (1992), Ala. §17-13-2 Code (1995);Ariz. Rev. Stat. §Ann. (1996)(standard 16-610 for rejecting ballot); Cal. Elec. § Code Ann. 15154(c) (West Supp. 2000); Colo. Rev. § Stat. 1-7- 309(1) (1999) (standard for paper § ballots), 1-7-508(2) (standard for elec tronic ballots); Del. Code Ann., Tit. 15, §4972(4) (1999); Idaho §34- Code 1203 (1981); Ill. Comp. Stat., ch. § (1993) (standard 5/7-51 for primar ies), §5/17-16 (standard for general elections); Iowa §49.98 Code (1999); Me. Rev. Stat. Ann., Tit. 21-A §§696(2)(B), (4) (Supp. 2000); Minn. § Stat. 204C.22(1) (1992); Mont. Code §Ann. (1997) (not 13-15-202 count
ing votes if “elector’s choice cannot be determined”); Nev. Rev. Stat. §293.367(d) (1995);N. Y. Elec. Law §9-112(6) (McKinney 1998);N. C. Gen. §§ Stat. 163-169(b), 163-170 (1999);N. D. Cent. Code 16.1-15-01(1) (Supp. *24 1999); Ohio Rev. Code Ann. §3505.28 (1994); Okla. Stat., 26, Tit. §7-127(6) (1997); Ore. Rev. Stat. §254.505(1) (1991); S. C. Code Ann. §7-13-1120 (1977); S. D. Codified Laws §12-20-7 (1995);Tenn. Code Ann. §2-7-133(b) (1994); W. Va. Code (1999). §3-6-5(g) 3Cf. Victor v. Nebraska, 511 U. 1,S. (1994) (“The 5 beyond a reasonable doubt standard is a requirement of due process, but the Constitution nei ther prohibits trial courts from defining reasonable doubt nor requires them so”). to do
126 deter- differing substandards of use Admittedly, the similar employing counties in different intent
mining voter concerns Those concerns. serious may raise systems voting single a fact by the not eliminated — alleviated —if objections all adjudicate ultimately will magistrate impartial general aas course, Of process. recount arising from must principles constitutional of interpretation “[t]he matter, machinery remember must We literal. too not little allowed not were it if work would government of Pinson, v. Tex. Co. Peanut Bain of joints.” its in play Flor- otherwise, J.). it were If (Holmes, (1931) 499, S.U. of determination county the each to leave to decision ida’s differ- enormous employ despite to balloting system — what protection. equal of afoul run accuracy4 might in ences — of majority the vast of decisions similar might the too, So, deci- certain authorities local delegate to legislatures design. and ballot systems voting respect sions might scheme remedial of aspects assuming that Even Clause, Equal Protection violate found ultimately be case. disposition majority’s not subscribe I could de- legislature a state once holds, explicitly majority theAs right vote, popular through a electors select termines As stature. constitutional counted vote one’s have all holds law acknowledges, further majority valid constitute voter intent reveal ballots nonethe- majority principles, these Recognizing votes. before proceeding contest the termination orders less rea- own their Under tabulated. been votes such all punch- using counties this election nonvotes percentage mod more under error rate contrast, 3.92%; in was system card LePore, 3d F. Siegel 1.43%. only was systems optical-scan ern every terms, for other 2000). Put (CA11 F) (charts andC 1202, 1213 than nonvotes more in 260 result systems cast, punchcard 10,000 votes punch- under east were votes 3,718,305 total A systems. optical-scan systems. optical-scan under cast were votes 2,353,811 systems, card Ibid.
soning, the appropriate course of action would be to remand to allow specific more procedures for implementing legis- lature’s general uniform standard to be established.
In the interest of finality, however, the majority effectively orders the disenfranchisement of an unknown number of vot- ers whose ballots reveal their intent —and are therefore legal votes under state law—but were for some rejected reason 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 110. But, as I have already noted, provisions those merely provide rules of decision for Congress to follow when selecting among conflicting slates of electors. Supra, at 124. They prohibit do not a State from counting what major-
ity concedes to 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, (1996).5 166, n. 1M Thus, nothing prevents the majority, even if it properly found equal an protection viola- tion, from ordering relief appropriate to remedy that viola- tion without depriving Florida voters of their right to their votes counted. As the majority notes, “[a] desire for speed is general not excuse for ignoring equal protection guarantees.” Ante, at 108.
Finally, neither in this case, nor in its earlier opinion Palm Beach County Canvassing Bd. v. Harris, 772 So. 2d (2000), did Court make any sub-
5Republican electors were certified by the Acting Governor on Novem
28,
ber
1960. A recount was ordered to begin on
December
Both Democratic and Republican electors met on the appointed day to cast
their votes. On January 4, 1961, the newly elected Governor certified
the Democratic electors. The certification was received by Congress on
January 6, the day the electoral votes were counted.
Josephson
Ross,
&
stantive consistent were and precedent long-established in rooted It whole. aas taken provisions, statutory relevant the with light of init before case the decided 7—it do courts what did un vote cast legally no leave to intent legislature’s the gen sufficiency the of the on relied doing, it so In counted. state by the articulated standard voter” the of “intent eral by review ultimate procedure awith coupled legislature, disparate about concern the resolve judge, impartial an do—I assume—as we If ballots. of contested evaluations would who judges the and court that of members the that does decision its impartial, mandate its out carried have question. federal colorable raise even not assault federal entire petitioners’ underlie must What confi- of lack unstated anis procedures election the judges the of capacity and impartiality the in dence were count vote the if decisions critical the make would who wholly without is position their Otherwise, proceed. of majority by the position of endorsement merit. ap- cynical most the credence only lend can this con- isIt land. the throughout judges of work the praisal judicial the administer who women and men fidence Time of law. rule backbone true is system bewill confidence wound day heal one will is certain. however, thing, One today’s decision. inflicted certainty the complete with know may never Although we election, Presidential year’s this winner identity of question unanswered previously resolved it example, When, for 2001) (Supp. §102.111 Ann. Stat. Fla. “shall” the word whether au State’s Secretary scope governs § 102.112 “may” word law.” “change it did returns, untimely ignore thority au an was statute, opinion its a interpretation judicial any other Like provisions relevant statute’s of what interpretation thoritative Inc., Express, Roadway Rivers v. enacted. they were since meant (1994). 298, 312-813 S.U. department judicial duty province emphatically “It (1803). 137, 177 Madison, 1 Cranch Marbury is.” law say what 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. Souter, Justice whom Justice Breyer joins, andand with whom whom Justice Stevens Ginsburg join Justice as to all but Part III, dissenting. The Court should not have reviewed either Bush v. Palm Beach County Canvassing 13d., *27 p. ante, (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 Supreme Court’s orders during period of this review, see Bush v. post, Gore, at 1046. If this Court had allowed the State to follow the course indicated opinions of its Supreme own Court, it is entirely possible that there would ultimately have been no issue requiring our review, political tension could have worked itself out in the Congress following procedure provided in 3 U. C.S. §15. The case being before us, however, its resolution by the majority is another erroneous decision. As will be I clear, am in agreement substantial with dissenting opinions of Justice Stevens, Justice Gins- burg, Breyer. I write separately only to say Justice
how straightforward the issues before us really are. There are three issues: whether Supreme State 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 state statutory pro- visions governing contests impermissibly changes a state law from what the State’s legislature provided, has 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 register votes for Presi- (the dent ballots) undervote violates equal protection or Amendment. Fourteenth by the guaranteed process
due to resolve. describe is difficult issues these None I sets provision That serious. § is issue 5C.S. 3 U. Presi- certification treating State’s a for conditions certain dispute over event in conclusive electors dential Congress in resolved must electors those recognizing selection requires § Conclusiveness S. C. U. under re- election, with before place scheme legal under set date days before six least at determined sults to conform required is no State But votes. electoral casting reason); the sanction (for whatever do it cannot 5 if loss simply §5 is conditions satisfy the failing to even And harbor.” “safe its called has been what anywhere, made if made, to be determination Congress.
II Court’s State goes to here matter second govern- statute terms of certain interpretation 2001); (Supp. § 102.168 Ann. Stat. Fla. “contests,” ing election *28 interpreta- court’s state the about here question no is there the antecedent dealing with provisions related of the tion §102.166, counts, vote particular “protesting” process Beach Palm case, Bush previous the involved was which judgment the whether is issue Canvassing Bd. County legisla- the displaced has State declared law contests: provisions ture’s legis- by the made provisions from different by court responsi- commits Constitution National to which lature, electors Presidential State’s determining each how bility for does Bush § cl.1, II, Const., Art. S. U. See chosen? stat- interpreting act any judicial course, claim not, legislative displace enough to meaning is uncertain ute interpreta- require statutes II; Article violate provision char- legislative affect more without does tion, which acter of a statute within the meaning of the Constitution.
Brief for Petitioner in Bush v. Palm Beach County Canvass- ing Bd., O. T. 2000,No. p. 00-836, 48, n. 22. What Bush does
argue, as I understand the contention, is that the interpreta- § tion of 102.168was so unreasonable as to transcend the ac- cepted bounds of statutory interpretation, point
being a nonjudicial act and producing new law untethered to the legislative question. Act in The starting point for evaluating the claim that
Florida Supreme Court’s interpretation effectively rewrote §102.168 must be the language of provision on which Gore relies to show right his to raise this contest: that the previously certified result in Bush’s favor produced was “rejection of a number of legal votes sufficient to change place in doubt the result of the election.” Fla. Stat. Ann. § 102.168(3)(c) 2001). (Supp. None of the state court’s inter- pretations is unreasonable to point of displacing leg- islative quoted. enactment As I will note below, other inter- pretations were of course possible, and some might have been better than those adopted by the Florida major- court’s ity; 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 reasonable interpretation, and the law as declared is consist- ent with Article II. 1. The statute does not define a “legal vote,” rejection may which affect election. The State Supreme Court
was therefore required to define it, and in doing that court looked to another election statute, 101.5614(5),deal ing with damaged or defective ballots, which pro contains a vision that no vote shall be disregarded “if there is a clear indication of the intent of the voter as determined by the *29 canvassing board.” The court read objective that of looking to the voter’s intent as indicating that legislature the prob ably “legal meant vote” to mean a vote recorded on a ballot indicating what the voter intended. Gore v. Harris, 772
132 the that true perfectly (2000). is It 1256-1257 2d
So. majority g., See, e. reading. different chosen have might votes” “legal (defining al. et Harris Respondent Brief instruc- the with accordance in executed properly “votes as elec- the advance in voters registered all to provided tions no is there so, even But places”). polling the in tion Arti- view; majority following the in violation constitutional inter- about disagreements mere unconcerned is II cle merits. pretive to deter- “rejection” interpreted next court Florida The 2. ain attacked may be counting process the in act what mine The term. the define does statute Again, the contest. to failure simply mean word the read majority court certainly within reading is 1257; That 2d, at So. count. give ef- objective given sense, common bounds A differ- determined. be can that if intent voter’s ato fect have might majority The possible. is course, reading, of ent malfunc- machine refer should “rejection” that concluded in “reject[ed]” treated not be should a ballot that or tion, contests lest officials, by election wrongdoing absence one. up in end will every election that claim easy to so be however, is, There dissenting). (Wells, J.,C. id., at Cf. hospita- more majority’s Florida in nonjudicial nothing reading. ble understand majority’s court about true same place change sufficient “votes phrase ing held court Florida. result doubt” it was numerous so were ballots uncounted if votes “legal” enough they contained possible reasonably authorized would contest this election, swing the (as thought might majority While statute.* then were Gore Bush totals ruled, the court *When uncounted number pegged dissent One apart. votes 1,000 than less 1243, 1272-1273 2d Harris, So. Gore 170,000. at question votes us represented counsel Gore’s dissenting). J., (Harding, (2000) *30 the trial did) judge that a probability, not a possibility, should necessary justify contest, is reading required by statute’s text, which says nothing about probability.
Whatever people 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 stat- ute enacted by “legislature” within the meaning Arti- cle II. In sum, the interpretations by Florida court raise no
substantial question under Article II. That court engaged in permissible construction in determining Gore had in- stituted a contest authorized by state statute, and it pro- ceeded to direct the trial judge deal with that contest in the exercise of the discretionary powers generously con- ferred Fla. by Stat. §Ann. 102.168(8) (Supp. 2001), to “fashion such orders as he or she deems necessary ensure that each allegation the complaint is investigated, examined, or checked, to prevent or correct any alleged wrong, and to pro- vide any relief appropriate under such circumstances.” As Ginsburg Justice has persuasively explained in her own dissenting opinion, our customary respect for state interpre- tations of state law counsels against rejection of the Florida court’s determinations in this case. I I I
It is only on the third issue before us that there is a meri- torious argument for relief, as this Court’s per curiam opin- ion recognizes. It is an issue that might well have been dealt with adequately Florida courts if the state pro- ceedings had not been interrupted, and if not disposed of at the state level it could have been considered by Congress in any electoral vote dispute. But because the course of relevant' figure is approximately 60,000, Tr. of Oral Arg. the number of ballots in which no vote for President was recorded by the machines. short, and time interrupted, been has proceedings *31 to for sensible it think Ius, before issue it.
address (or, alter- claim protection equal an raised have Petitioners Zim- Logan generally see claim, process natively, a due charge that (1982)), in U. S. Co., Brush merman different in applied are standards disparate unjustifiably true It is facts. identical to otherwise jurisdictions electoral of use forbid does Clause Protection Equal that even jurisdiction, a within voting mechanisms variety of a ef- levels of different have will mechanisms though different variety can local intentions; recording voters’ in fectiveness of value potential cost, about by concerns justified be sug- here record in evidence But on. so innovation, rules under obtains disparity of order different gests (and applied been have intent voter’s determining a for used ballots of types identical to applied) be continue could phys- exhibiting identical machines brands identical in chads). “dimpled” “hanging” (such as characteristics ical Palmof 2000) (testimony (Dec. 2-3, 238-242 Tr. g., e. See, Charles Judge Chairman Board Canvassing County Beach imperfectly applied varying standards describing Burton precertifica- during County Beach Palm ballots punched describing (similarly recount); 497-500 id., at manual tion County); Tr. in Miami-Dade applied standards varying canvass- county 2000) (soliciting from (Dec. 8, Hearing 8-10 intent determining voters’ protocols proposed ing boards standard). canI uniform precise, provide declining but dif- by these served interest legitimate no conceive fundamental of voters’ expressions fering treatments arbitrary. wholly appear differences rights. account take should we this, about to do deciding what In days. six cast due votes electoral fact courts case remand therefore would I evaluat- standards uniform establish instructions differing prompted ballots types several ing the treatments, to be applied within and among counties when passing on such identical ballots 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 re- quirement before the date set for the meeting of electors, December 18. Although one of the dissenting justices of the State Court estimated that disparate po- standards tentially affected 170,000votes, Gore v. Harris, 772 So. 2d, at 1272-1273, the number at issue is significantly smaller.
The 170,000 figure apparently represents all uncounted votes, (those both undervotes for which no Presidential *32 choice was by machine) recorded (those and overvotes re- jected because of votes for more than candidate). one Tr. of Oral Arg. 61-62. But as Breyer pointed Justice has out, no showing has been made legal of 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 justification no for denying the State the opportunity to try to count all disputed ballots now.
I respectfully dissent. Justice Ginsburg, with whom Justice joins, Stevens and with whom Justice and Justice Souter Breyer join as to Part I, dissenting.
I The Chief acknowledges Justice provisions of Flor- ida’s Election “may Code well admit of more than one inter- pretation.” Ante, at 114 (concurring opinion). But instead of respecting the high province court’s say what the State’s Election Code means, The Chief Justice maintains that Florida’s Supreme Court has veered so far from the or- dinary practice judicial of review that what it did cannot offered have colleagues My judging. called
properly construction Their law. Florida’s of construction reasonable seven Florida’s of one of view with coincides 1264-1270 1243, 2d So. Harris, 772 v. justices. Gore Court County Beach Palm dissenting); 2000) (Wells, J.,C. (Fla. (Fla. 1291-1292 1273, 2d So. Harris, 772 Canvassing v.Bd. of construction 1, 6 to remand) (confirming, 2000) (on join Gore). might Chief I advanced law Florida law. Florida interpret my commission it were Justice interpretation court’s Florida with disagreement But conclusion warrant does law State’s own its here cause nois There legislated. have court justices court high Florida’s members believe oath discharge their best mortal “their than less done (1981), and U. S. Mata, Sumner office,” interpretation reasoned their upset cause no law. statutory, and occasionally affirms than more This disagrees. it which interpretations constitutional, even administrative challenges to reviewing example, when For defer we implement, they laws interpretations agencies’ “the violates interpretation their unless agencies Chevron Congress.” intent expressed unambiguously *33 Inc., 467 Council, Resources Natural Inc. v. Defense A. S.U. declaration face inso (1984). do We 837, 843 S. U. legis “All Constitution States United I of in Article Congress a vested shall granted herein Powers lative call not does Surely Constitution States.” United administrative a federal respect pay more upon us high state a than law federal construction agency’s un And law. State’s own of its interpretation court’s interpretations federal state-court stand commonly, letwe habeas Notably, in disagree. might we which law ‘no “there view to the adheres the Court context, judge federal aisman fact why the reason intrinsic
137
should make him more competent, or conscientious, or
learned with respect
[federal
law] than his neighbor in the
”
state courthouse.’
Stone v. Powell,
No doubt there are cases in which the proper application of federal may law hinge on interpretations of state law.
Unavoidably, this Court must sometimes examine state law in order protect rights. federal But we have dealt with such cases ever mindful of full measure of respect we owe to interpretations of law a highest State’s court. In the Contract Clause case, General Motors Corp. Romein, 503 U. S. (1992), for example, we said that al-
though “ultimately we are bound to decide for ourselves whether a contract was made,” the [s] “accord respect- ful consideration great weight to the views of the State’s highest court.” Id., at 187 (citing Indiana ex rel. Anderson v. Brand, 303 U. S. (1938)). And in Central Union Telephone Co. v. Edwardsville, 269 U. S. (1925), up- we held the Illinois Supreme Court’s interpretation of a state waiver rule, even though that the forfeiture of federal interpretation resulted in rights. constitutional *34 Refusing to supplant Illinois law with a federal- definition of waiver, 138 bind “should declaration court’s state the that explained
we those to application in its unreasonable unfair so unless us 195.1 Id., at it.” obstruct toas right federal a asserting we law, state of matters on courts state to deferring In “ ‘out- an as acts Court this that recognize appropriately which law ’ local to exposure common the lacking sider Brothers Lehman the jurisdiction.” in sitting from comes has recognition That (1974). 391 386, S.U. Schein, 416 v. meaning the about doubts to resolve us prompted sometimes court, highest a State’s issues certifying by law state of Arizonans Cf. stake. at rights federal when even (“Warn- (1997) 79 U. S. Arizona, 520 v. English Official ques- constitutional adjudication premature against ings asked is court federal a when attention heightened bear tions risks tribunal federal the law, State’s a invalidate a construe endeavors it when error friction-generating highest State’s the by reviewed not yet Act state novel 1003, 1032, Council, U. S. 505 Coastal 1 Carolina South Lucas v. also See objec “if an taking a regulatory defend could (South Carolina (1992) 18n. courts] would its [by precedents relevant application reasonable tively pres is land the in which circumstances in the uses beneficial ... exclude (deciding (1976) 341, 344-345 Wood, U. S. 426 Bishop v. found”); ently under cognizable interest property a had created Carolina North whether interpreted law state by reference Clause Process Due Rhoden, Gurley Court). Similarly, Supreme Carolina North him entitled process due that claimed retailer (1975), gasoline a S.U. sales his amount computing tax excise gasoline state a deduct incidence legal grounds tax, on sales a state subject collector merely as acted he customers his on fell tax excise incidence legal held Mississippi tax. court highest State’s “a Observing that petitioner. tax fell excise said statutes,” we state meaning of arbiter judicial final is toas determination definitive its own made has court “[w]hen determining weight finding great this give incidence,... [w]e operating statute’s consistent it if statute, and aof effect natural (citing Id., at conclusive.” deemed it will interpretation reasonable (1965)). 451, 455-456 S.U. Neill, v. Co. Oil American *35 court.”). Notwithstanding our authority to decide issues of state law underlying federal claims, we have used the certi- fication device 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 S.,U. at 391. Just last Term, in Fiore v. White, 528 U. S. (1999), we
took advantage of Pennsylvania’s procedure. certification In that case, a prisoner state brought a federal habeas action claiming that the State had failed prove an essential ele- ment 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 question to the Pennsylvania Supreme Court for that court to “help determine the proper predicate state-law our determination of the federal questions constitutional raised.” Id., at 29; id., at 28 (asking the Pennsylvania Su- preme Court whether its recent interpretation of the statute under which Fiore was convicted «“wasalways the statute’s meaning, even at the time of trial”). Fiore’s The Chief willingness to reverse the Justice’s 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 Penn- sylvania Supreme Court. I would have thought the “cau- tious 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 S., U. at 391, demanded greater restraint. Rarely has this rejected outright an interpretation of state law by high court. Devisee v. Fairfax's Hunter’s Lessee, 7 Cranch (1813), NAACP v. Alabama
ex rel. Patterson,
are contexts historical embedded cases those But 1.n. Devisee, here. situation Fairfax's comparable hardly miscon had *36 Appeals of Virginia Court the that held which subject British a deprive to laws forfeiture own its strued amidst occurred treaties, by federal himto secured lands of G. Court. Marshall on rights attacks States’ vociferous (13th ed. 61-62 Law Constitutional Sullivan, K.& Gunther Fair- Court’s obey this to refused court 1997). Virginia sub British judgment enter to mandate Devisee fax’s Court’s led to refusal That interest. in successor ject’s 1 Lessee, Wheat. Hunter’s v. Martin decision pathmarking after months three decided case Patterson, a (1816). 304 Southern of face (1958), 1S.U. Aaron, 358 Cooper Ala that held movement, rights civil resistance proce own its applied irregularly had Supreme bama against contempt order aof deny review rules dural membership lists. disclose refusal its arising from NAACP nonfed- if defeated not is jurisdiction “our saidWe any fair ‘without court state by the relied ground eral ” v.Ward (quoting 455 atS.,U. 357 support.’ substantial (1920)). S.U. Cty., Love Commr’s Board height at “sit-in” counter a lunch stemming from Bouie, Carolina South held movement, rights civil trespass laws—criminal itsof construction Court’s clear otherwise an by text covered izing conduct process due violated thus “unforeseeable” statute —was at S.,U. petitioners. retroactively applied when 350, 354. might cases these citation casual Justice’s Chief larger collection of a part they believe one lead to us impelled Constitution said we which cases law. state portrayal court’s state aon eye skeptical train additional find think, I pressed, hard would one But convincingly Breyer As Justice mold. fit the cases case this (dissenting opinion), 149-152 at post, see explains, involves nothing close to the kind of by recalcitrance a state high court that warrants extraordinary by action this Court. The Florida Supreme Court concluded that counting every legal vote was the overriding concern of the Florida Legisla- ture when it enacted the State’s Election Code. The court surely should not be bracketed with high courts of the Jim Crow South. says The Chief that Article Justice II, providing that
state legislatures shall direct the manner of appointing elec tors, authorizes federal superintendence over the relation ship between state courts and state legislatures, and licenses departure from the usual, deference give we to state-court interpretations of state law. Ante, at 115 (concurring opin ion) (“To attach definitive weight pronouncement to the of a *37 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 explicit the requirements II.”). of Article The Framers of our Constitu tion, however, understood that in a republican government, the judiciary would construe the legislature’s enactments. See U. S. Const., Art. III; The (A. Federalist No. 78 Hamil
ton).
In light of guarantee
constitutional
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
republican
State’s
regime. Yet The Chief
today
Justice
would reach out to
just
do
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
contradicts basic principle that a
Justice
State may organize itself as it sees fit. See, g.,
e. Gregory v.
Ashcroft, 501 U.
(1991)
S. 452, 460
(“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,
142 scru- call not II does itself.”)-2 Article state by this Court.
tiny undertaken obscured has case this setting extraordinary Federal resolution: proper its dictates ordinary principle of the interpretations court’s high state ato defer courts of federal- core reflects principle This law. own State’s atom split the Framers “The agree. all which ism, on citizens our idea their genius It was sovereignty. federal, one and one capacities, political two would Roe, v. Saenz other.” by the incursion from protected each Limits, Inc. Term S. (1999)(citing U. n. 17 504, 489, U. S. concur- J., (1995) (Kennedy, S. U. Thornton, 514 v. Leg- for the solicitude ring)). Justice’s Chief solici- fundamental more expense at comes islature Const., S. sovereign. U. legislature’s owe we tude Manner such appoint, (“Each shall State 2cl.1, II, Art. for Presi- electors direct,” may Legislature thereof as 123-124 added)); ante, at (emphasis President Vice dent this Members other dissenting).3 Were J., (Stevens, of dual system our generally they as mindful con making “manner” a State’s which case rare Even this Congress, constraint, a structural implicate might laws struing constraint. enforce entity governmental proper likely Court, is Davis rel. ex Ohio 1-15; cf. §§ S. C. 12; U. Const., Amdt. S. U. See *38 political nonjusticiable aas (1916) (treating 565, 569 Hildebrant, S. 241 U. district- congressional override a referendum use whether question v. §4); Luther I, Art. violates legislature state by enacted plan ing (1849). 1, 42 Borden, 7 How. identity were and power recognized Framers “[B]eeause Con 39, No. Federalist balance, see federal parts essential other an States, even prerogatives of the solicitous is stitution cer States grants ... Constitution province. federal sovereign wise elections federal manner times, places, over powers tain States allows 1..., 4, §I, cl. revision), Art. congressional (subject Term S.U. 2.” 1, § cl. II, President, Art. electors appoint J., (Kennedy, (1995) 779, 841-842 S. Thornton, U. Limits, Inc. concurring).
sovereignty, they would affirm the judgment of the Florida Supreme Court.
II
I agree with Justice
petitioners
Stevens
have not
presented a
equal
substantial
protection claim. Ideally, per-
fection 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,
yield
would
a result any less fair
precise
than the
certification
preceded
that recount. See, g.,
e. McDon-
ald v. Board
Election Comm’rs
Chicago,
155 (dissenting opinion), the December 12 date for bringing Florida’s electoral votes § into 3 U. S. C. 5’s safe harbor lacks 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. g., See, e. 7 (spec- *39 give and meet “shall electors date as18 December
ifying De- Wednesday in fourth “the (specifying votes”); 12 their which on date 27—as December year, cember”—this votes, shall electoral State’s a received not has it if Congress, return certified a send secretary of state request signifi- ultimate has dates of these none immediately). But determin- provisions detailed Congress’ light cance electoral validity of January,” day of sixth “the ing, §15. votes. “orderly judi- permit not will time assumes Court The Ante, arise.” might matters disputed any review cial diligence and faith good doubted has one noBut at sides all attorneys for officials, Florida which with performed lawof courts controversy, this has. Court Supreme Florida Notably, duties. their oral hours within opinions substantial two produced constitu- conclusion the Court’s sum, In argument. prophecy is a impractical recount adequate tionally an Such tested. allow not will judgment own Court’s Presidency of the decide should prophecy untested States. United
I dissent. Jus Stevens Justice whom with Breyer, Justice Part toas except join Ginsburg join except as to Part I-A-1, and with whom tice dissenting. I, Part to joins Souter Justice wrong to It was case. this take wrong to was Court permit stay and vacate now should stay. It grant recount whether decide resume. should I country are case this implications political presented, questions legal federal But
momentous. insubstantial. exception, one *40 A
1 The majorityraises 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 re counted in some, but not all, counties; and third, the absence of a uniform, specific guide standard to the recounts. As far as the first issue is petitioners concerned, presented no evidence, to this Court or any Florida court, that a manual recount of overvotes would identify additional legal votes. The same is true of the second, and, in addition, majori ty’s reasoning would seem to any invalidate 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 Equal Protection Clause requires that a manual recount be governed only not by the general uniform standard of the “clear intent of the voter,” but also by uniform subsidiary (for standards example, a uniform determination whether indented, but not perforated, “undervotes” count). should The opinion points out that the Florida Supreme Court or- dered the inclusion of Broward County’s undercounted “legal votes” even though those votes included ballots that were perforated but simply “dimpled,” while newly recounted ballots from other counties likely will include only votes de- termined “legal” on the basis of a stricter standard. light In previous our remand, the Florida Supreme Court
may have been reluctant to adopt a more specific standard than provided legislature for fear of exceed- ing 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 permit lower courts to iron out significant differences through ordi- was distinction relevant since review, and judicial
nary agree I court, highest the State’s order embodied principles circumstances, basic special very these that, a uniform adoption of counseled should fairness majority’s light of In problem. to address standard disposition, extent whether, decide *41 not need I place would Constitution the matter, a remedial which, standard. uniform the content upon the limits majority’s the for justification is no Nonetheless, there halt and court lower the reverse to simply is remedy, which in- be, remedy would appropriate An entirely. recount the at even that, instructions case with this remand to stead, to Supreme Court Florida the permit would date, late this require Florida, includ- in votes recounting undereounted all Miami- Beach, and Palm Volusia, Broward, from ing those to prior recounted previously not Counties, whether Dade in accordance sodo to period, protest of the end the standard. single uniform entirely on recount stopping justifies majority major- particular, In time. more nois there ground (Sec- Secretary of State for time lack on the ity relies separate to needed equipment approve review retary) to conclusion this reaches majority But undervotes. could recount evidence any record absence Su- by Florida allowed time completed been record outside facts finds majority Court. preme position better a far are courts state on matters recount any such late too is it course, Of address. dis- which date by December place take advantage of take tois a State if decided must putes there §5. Whether C.S.U.3of provisions harbor safe 18, when December prior recount conduct time matter ais meet, scheduled electors Flor- law, under whether, And determine. courts ida could or could not take further action is obviously a mat- ter for Florida courts, not this Court, to decide. See ante, at 111 (per curiam).
By halting the manual recount, and thus ensuring that the legal uncounted votes will not be counted under any stand- ard, this Court crafts a remedy out proportion to the as- serted 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 points out, see ante, at 126, Stevens and n. 4 (dissenting opinion), the ballots of voters in counties punchcard use systems are more likely to be disqualified than those in counties using optical-scanning systems. Ac- cording to recent news reports, variations in the undervote rate are even pronounced. more See Fessenden, No-Vote Rates Higher in Punch Card Count, N. Y. Times, Dec. 1, *42 p. 2000, A29 (reporting that 0.3%of ballots cast in 30 Florida
counties using optical-scanning systems registered no Presi- dential vote, in comparison to 1.53%in the 15 counties using punchcard Votomatic ballots). Thus, in system that allows counties to use types different of voting systems, voters al- ready arrive at polls the with an unequal chance that their votes will be I counted. do not see how fact that this results from counties’ selection of different voting machines rather than a court order makes the outcome any more fair.
Nor do I why understand the Florida Supreme Court’s re- count order, which helps to redress this inequity, must be entirely prohibited based on a deficiency that could easily be remedied.
B The remainder petitioners’ of claims, which are the focus of The CHIEF Justice’s concurrence, raise significant no fed- eral questions. I agree cannot that The Chief Justice’s unusual review of state law in this case, see ante, at 135-143 J., dissenting), justified (Ginsburg, is by reference either to § Art. II, 1, or to 3 § U. S. C. 5. Moreover, even were such the that conclusion proper, review untenable. is law federal contravenes decision Court’s respect “comity and cases, most in that, conceding While of state decisions to to defer us compel federalism some on relies concurrence law,” state of issues on courts its justify §5 to C.S.U.3 §1, and II, Art. of combination may we which few of one case this conclusion (opinion Ante, at aside. principle fundamental lay that foundation primary concurrence’s J.). The C. of Rehnquist, II, Art. text: plain to appeal an rests conclusion this to electors Presidential appoint power § of grant l’s Arti- text neither But Ibid. “Legislature.” state inter- cites concurrence only case nor itself II cle (1892), 1S.U. Blacker, v. McPherson II, Article prets power unlimited grants II Article conclusion leads limita- constitutional any state devoid legislature, id., See electors. appointing manner select tions, provision constitutional referring state (specifically 41at electors). Nor, selection regarding law upholding fed- interpreted we out, points Stevens Justice § 1—II, Art. analogous most provision constitutional eral concur- in the forth put manner strained § 4—in I,Art. opinion). (dissenting n. 1 123, Ante, at rence. in- its “inform[ing]” § 5 as treatment concurrence’s (opinion ante, at 2, cl. II, Article terpretation Jus- convincing. Chief more nois J.), C. Rehnquist, Beach Palm Bush opinion our contends tice I), (Bush curiam) *43 (per p. 70 ante, Bd., Canvassing County advantage take towish legislative “a that stated we in which law of Florida construction against” counsel 5] would [§ at ante, law, change in abe might deem Congress that postelection ensure “must this means now desire legislative frustrate do not actions state-court at Ante, §5.” by provided harbor’ ‘safe attain Congress’ govern rules part §5 is However, we didI Bush Nowhere electors. of slates recognition establish that this Court had the authority §5. to enforce Nor did we suggest that permissive against” “counsel 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 con- currence’s logic turns the presumption 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 express. did But, in any event, the concurrence, having conducted its review, now reaches the wrong conclusion. It says that “the Court’s interpretation of the Florida elec- tion laws impermissibly distorted them beyond what a fair reading required, in violation of Article II.” Ante, at 115 (opinion of J.). C. But what precisely is the Rehnquist, distortion? Apparently, it has three elements. First, the Florida court, in its opinion, earlier changed the election cer- tification date from November 14 to November 26. Second, the Florida court ordered a manual recount of “under- counted” ballots that could not have been fully completed the December 12 “safe harbor” deadline. Third, the Florida court, in the opinion now under review, give failed to ade- quate deference to the determinations of canvassing boards and the Secretary.
To characterize the first element as a “distortion,” how- requires ever, the concurrence to second-guess the way which state court resolved plain conflict in the language of different statutes. Compare Fla. §102.166 Stat. Ann. (Supp. 2001) (foreseeing manual recounts during 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 re- turns) §102.111(1) (stating that the Secretary “shall” ignore returns). late any In event, that issue no longer has *44 of reversal the justify cannot importance practical
any now. us before decision court Florida different the re- “distortion” as a element second the To characterize inability the that the fact overlook concurrence the quires in is, time on recount the conduct courts Florida the of making. The own Court’s the problem a part, significant be could recount the thought that Court Supreme Florida Circuit Florida hours, the within and, time, completed deadline. the meet orderly fashion anin moving was Court we result, As a stay. a entered improvidently Court This been have could recount the whether know never will completed. “impermis- as element third the characterize one can Nor two are there that understands one distortion]” once sibl[e] Florida that argument opinion’s sides Secretary’s discretion.” eliminated] “virtually Court Florida The concurring). J.,C. 115,118 at Ante, (Rehnquist, that provide amended was question statute “rejection include contesting election” an “grounds doubt place . . . sufficient legal votes number a (3)(c) §§102.168(3), Ann. Stat. Fla. election.” of the result proper about argued parties 2001). And (Supp. Secretary “legal vote.” term statute’s meaning executed “properly vote a “legal vote” a that claimed has registered to all provided instructions in accordance in- On 10. al. et Harris Respondent Brief voters.” can- machines for which ballots punchcard terpretation, at Id., votes. “legal” not vote a register not it But accept her definition. did Supreme Florida provision different was reason Its reason. had damaged addresses (a provision laws “if disregarded shall ballots) vote no says defective deter- voter intent indication clear ais there should ballots (adding that canvassing board” by the mined elector’s to determine impossible “if it is counted not be 2001). Given 101.5614(5)(Supp. choice”). Ann. Stat. Fla.
this statutory language, certain roughly analogous judicial
precedent,
g.,
e. Darby v. State ex rel. McCollough,
(Fla. 1917) (per curiam), and somewhat similar determina- tions courts throughout the Nation, see cases cited infra, at 152, the Supreme Florida Court concluded that the term “legal vote” means a vote recorded on a ballot that clearly reflects what the voter intended. Gore v. Harris, 772 So. 2d (2000). 1243, 1254 That conclusion differs from the conclu- sion 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 distortion]” of Florida law.
The Supreme Florida Court, applying this definition, de- cided, on the basis of the record, that respondents had shown that the ballots undercounted by the voting machines con- tained enough “legal votes” place “the result[s]” of the election “in doubt.” Since only a few hundred votes sepa- rated 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 discre- tion. The boards retain their traditional discretionary au- thority during the protest period. And during the contest period, as court stated, “the Canvassing Board’s actions [during protest period] may constitute evidence that a ballot does or does not qualify as a legal vote.” Id., at Whether a local county canvassing board’s discretionary judgment during protest period not to conduct a manual recount will be set aside during a period contest depends upon whether a provides candidate additional evidence that the rejected votes contain enough “legal votes” place outcome of the race in doubt. To limit the local canvassing discre- eliminate way is reasonably this discretion
board’s believe. so could one least, At the tion. judge circuit Florida provide goes on statute deems she or he orders such “fashion authority to investigated, ... allegation each ensure necessary to appro any relief provide . and . checked, . examined, 2001) (emphasis 102.168(8)(Supp. §Ann. Stat. Fla. priate.” that., One just did added). *46 Court’s Supreme Florida the disagree with reasonably might But statute. in words other, or these, of interpretation interpreta language plain its call could one how see not doI to longer noas misguided change so statutory 1999 of a tion of usurpation aasor interpretation judicial qualify courts state other Indeed, legislature. state authority of similar statutes similar roughly interpreted Representative U.S. for Election re g., In e. See, ways. 2dA. 621, 653 602, Conn. 231 Dist., Congressional Second to vote used process (“Whatever the (1994) 90-91 79, a furnish not technology should differences votes, count purpose principle bedrock disregarding basis voters”); intent ascertain tois process voting theof 404-405 401, 2dE.S. 460, Va.W. Carr, Brown depends . .. counted shall ballot (“[Wjhether a (1947) any resort decry Courts .... voter intent intent toas conclusion reaching a rules technical voter”). distortion? “impermissible” is where repeat, I an involves Despite the case this reminder II (Rehn at ante, States,” United President concern, legal preeminent concurring), no J.,C. quist, this required questions, legal related concern practical stopped stay that issue alone case, let this hear exception, one With tracks. in its process recount Florida’s constitutional vindicate tous ask not do claims petitioners’ provision designed to protect a basic right. human See, g., e. Brown v. Board Education, 347 (1954). U. S. 483 Petitioners invoke fundamental fairness, namely, the need for procedural fairness, including finality. But with the one “equal protection” exception, they rely upon law that fo cuses, upon not that basic need, upon but the constitutional allocation power. Respondents invoke a competing fun damental consideration—the need to determine the voter’s true intent. But they look to state law, not to federal consti tutional law, protect that interest. Neither side claims electoral fraud, dishonesty, or the like. And the more funda equal mental 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 condi upon tioned issuance of a uniform standard; it does not re quire reversing the Court. Of course, the selection of the President is of fundamental importance. national But that importance political,
legal. And this Court should resist the temptation unneces- *47 sarily 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 roadmap foresees resolu- tion of electoral disputes by state courts. See 3 U. S. C. 5 (providing that, where a “State shall provided, have by laws prior enacted [election to day], for its final determination of any controversy or contest concerning the appointment of . . . electors by judicial ... or other methods,” the subse- quently chosen electors enter a safe harbor free from con- gressional challenge). But it provides nowhere for involve- by ment the United States Court. To the contrary, the Twelfth Amendment commits to Con- gress the authority and responsibility to count electoral votes. A federal statute, the Electoral Count Act, enacted
154 spec- election, Presidential Hayes-Tilden close the
after (through disputes, resolve to tried States after that, ifies body primarily the means), Congress other “judicial” Electoral See disputes. remaining resolve to authorized §§ and 6,5, C.S. 3 U. 378, 24 Stat. 1887, ofAct Count to intent its clear makes Act history the of legislative The Congress, to disputes such resolve to power the commit courts: the than rather authorized Constitution, by the are, Houses two “The only They can votes. electoral of count make from determine, must doing so in and votes, legal count .... votes legal had, what evidence best houses, two rests to determine power “The R.H. tribunal.” constitutional other is no there
and (1886) (report Sess., Cong., 1st 49th Rep. No. Committee Select Caldwell, Rep. submitted Vice-President). President of Election added: Act introduced Congress who Member The ais votes legality judge power “The necessary exist- count. power consequent of pres- necessity to absolute is of power of this ence all interests the Government. ervation Federal other each relations their States decide tribunal ultimate demand Union constituent abe should President upon the relation- federal their States body, in which should capacity sovereign in their people ships (remarks (1886) Cong. Rec. represented.” *48 Caldwell). Rep. Who decide? could else who Constitution “Under vital question determining a State to the nearer constit- than of States union whole importance devolved has Constitution upon whom body uent Id., at vote?” duty count goes Act on to set out rules for the congressional de- termination of disputes about those votes. If, for example, a State submits a single slate of electors, Congress must count those votes unless both agree Houses that the votes “have not been ... regularly given.” 3 § U. S. C. 15. If, as occurred in 1876,a State submits two slates of electors, then Congress must determine whether a slate has entered the safe harbor of 5, in which case its votes will have “conclu- sive” effect. Ibid. If, as also occurred in 1876,there is con- troversy about “which of two or more of such State authori- ties ... 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 by authorized its law.” Ibid. If the two Houses of Congress agree, the votes they approved will be counted. If they disagree, then “the votes of the electors whose appointment shall have been certified 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 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 allow- ing the judiciary to choose the Presidential electors “was out of question.” Madison, July 25, 1787 (reprinted in 5 Elliot’s Debates on the Federal (2d Constitution 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. How- ever awkward or difficult it may be for Congress to resolve difficult electoral disputes, Congress, being 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.
156 danger the aware fully was Moreover, Congress appropriate with unarmed judges, ask it should arise
would Presidential contested hotly resolve to standards, legal election, Presidential the after Just contest. election slates two sent each Louisiana and Carolina, Florida, South Tilden, States, these Without Washington. to electors num- the short one votes, electoral Democrat, had the States, those With Presidency. the win required ber In had would opponent, Republican his Hayes, electors, Congress slates two the between choose order five composed commission electoral an to appoint decided Jus- Court Supreme five and five Senators, Representatives, be- divided evenly towas Commission Initially tices. Davis, David Justice Democrats, and Republicans tween However, vote. decisive to possess Independent, an Jus- elected Legislature Illinois minute last at when position final Senate, States United Davis tice Joseph Justice by filled was Commission Bradley. P. re- lines, and partisan along divided Commission Bradley. to Justice fell vote deciding cast sponsibility electors, Republican of the votes accept decided He to Hayes. Presidency awarded thereby and of vocif- subject became immediately Bradley Justice bribes, accepting accused was Bradley attacks. erous eleventh-hour anof and interests, railroad by captured being sur- “was house his which night after in position change rail- and partisans of Republican carriages” by rounded 159-160 Reaction Woodward, Reunion C. officials. road concluded Bickel Professor later, years Many (1966). “‘the thought He impartial. honest was Bradley Congress whether fact, was, Bradley question’ great accept had returns behind to go entitled was of princi- “issue an authorities,” certified them Nonethe- (1962). Branch Dangerous Least ple.” Justice which upon question legal out, points Bickel less, *50 Bradley’s decision turned was very not important in the con- temporaneous political context. He says that “in the cir- cumstances the issue of principle was trivial, it was over- whelmed all that hung in the balance, and it should not have been decisive.” Ibid. present
For 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 process legitimacy. Nor did it assure the pub- lic that process had worked fairly, guided by the law. Rather, simply it embroiled Members of the Court parti- san conflict, thereby undermining respect for 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 sim- ply to have terminated the Florida recount. Those who cau- judicial tion restraint in resolving political disputes have de- scribed 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 judicial unbalance judg- ment,” and “the inner vulnerability, the self-doubt of an insti- tution which is electorally irresponsible and has no earth to draw strength from.” Id., at 184. Those characteristics mark this case.
At same time, as I have said, the Court is not acting to vindicate a fundamental constitutional principle, such protect need to a basic human liberty. No other strong reason to act present. Congressional statutes tend to ob- viate 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 public a 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 basic protect effort any successful ingredient
necessary risk no runWe itself. of law the rule indeed, liberty and, this (responding President days when returning to Indians) might have Cherokee protect efforts Court’s him let now decision; his made has Marshall “John said, Marshall John Justice Loth, Chief D. it!” enforce do (1948). we But Republic American Growth just harm may wound wound—a self-inflicted risk Nation. Court, but long election agonizingly this bring order fear I *51 adequately not have we conclusion, a definitive process exercise own upon our necessary “check attended States United self-restraint.” sense “our own power,” dissenting). Justice (Stone, (1936) J., 791,S. 297 U. Butler, thing important most “The Court, of the said once Brandéis does itWhat supra, at Bickel, doing.” isdowe repair I would undone. left should today, the permitting can, now we damage as best standards. uniform under to continue recount dissent. respectfully I