GEORGE W. BUSH,et al., PETITIONERS v. ALBERT GORE, Jr., et al.
on writ
of certiorari to the florida supreme court
(December 12, 2000)
Per Curiam.
I
On December 8,
2000, the Supreme Court of Florida ordered that the Circuit Court of Leon County
tabulate by hand 9,000 ballots in Miami-Dade County. It also ordered the
inclusion in the certified vote totals of 215 votes identified in Palm Beach
County and 168 votes identified in Miami-Dade County for Vice President Albert
Gore, Jr., and Senator Joseph Lieberman, Democratic Candidates for President and
Vice President. The Supreme Court noted that petitioner, Governor George W. Bush
asserted that the net gain for Vice President Gore in Palm Beach County was 176
votes, and directed the Circuit Court to resolve that dispute on remand.------
So. 2d, at------ (slip op., at 4, n. 6). The court further held that relief
would require manual recounts in all Florida counties where so-called
"undervotes" had not been subject to manual tabulation. The court ordered all
manual recounts to begin at once. Governor Bush and Richard Cheney, Republican
Candidates for the Presidency and Vice Presidency, filed an emergency
application for a stay of this mandate. On December 9, we granted the
application, treated the application as a petition for a writ of certiorari, and
granted certiorari. Post, p.------.
The
proceedings leading to the present controversy are discussed in some detail in
our opinion in Bush v. Palm Beach County Canvassing Bd., ante, p.-------- (per
curiam) (Bush I). On November 8, 2000, the day following the Presidential
election, the Florida Division of Elections reported that petitioner, Governor
Bush, had received 2,909,135 votes, and respondent, Vice President Gore, had
received 2,907,351 votes, a margin of 1,784 for Governor Bush. Because Governor
Bush's margin of victory was less than "one-half of a percent . . . of the votes
cast," an automatic machine recount was conducted under Sec. 102.141(4) of the
election code, the results of which showed Governor Bush still winning the race
but by a diminished margin. Vice President Gore then sought manual recounts in
Volusia, Palm Beach, Broward, and Miami-Dade Counties, pursuant to Florida's
election protest provisions. Fla. Stat. Sec. 102.166 (2000). A dispute arose
concerning the deadline for local county canvassing boards to submit their
returns to the Secretary of State (Secretary). The Secretary declined to waive
the November 14 deadline imposed by statute. Sec. Sec. 102.111, 102.112. The
Florida Supreme Court, however, set the deadline at November 26. We granted
certiorari and vacated the Florida Supreme Court's decision, finding
considerable uncertainty as to the grounds on which it was based. Bush I, ante,
at------------- (slip. op., at 6-7). On December 11, the Florida Supreme Court
issued a decision on remand reinstating that date.------ So. 2d------,------
(slip op. at 30-31).
On November 26, the
Florida Elections Canvassing Commission certified the results of the election
and declared Governor Bush the winner of Florida's 25 electoral votes. On
November 27, Vice President Gore, pursuant to Florida's contest provisions,
filed a complaint in Leon County Circuit Court contesting the certification.
Fla. Stat. Sec. 102.168 (2000). He sought relief pursuant to Sec. 102.168(3)(c),
which provides that "(r)eceipt of a number of illegal votes or rejection of a
number of legal votes sufficient to change or place in doubt the result of the
election" shall be grounds for a contest. The Circuit Court denied relief,
stating that Vice President Gore failed to meet his burden of proof. He appealed
to the First District Court of Appeal, which certified the matter to the Florida
Supreme Court.
Accepting jurisdiction, the
Florida Supreme Court affirmed in part and reversed in part. Gore v.
Harris,------ So. 2d.-------- (2000). The court held that the Circuit Court had
been correct to reject Vice President Gore's challenge to the results certified
in Nassau County and his challenge to the Palm Beach County Canvassing Board's
determination that 3,300 ballots cast in that county were not, in the statutory
phrase, "legal votes."
The Supreme Court held
that Vice President Gore had satisfied his burden of proof under Sec.
102.168(3)(c) with respect to his challenge to Miami-Dade County's failure to
tabulate, by manual count, 9,000 ballots on which the machines had failed to
detect a vote for President ("undervotes").------ So. 2d., at------ (slip. op.,
at 22-23). Noting the closeness of the election, the Court explained that "(o)n
this record, there can be no question that there are legal votes within the
9,000 uncounted votes sufficient to place the results of this election in
doubt." Id., at------ (slip. op., at 35). A "legal vote," as determined by the
Supreme Court, is "one in which there is a 'clear indication of the intent of
the voter. ' " Id., at-------- (slip op., at 25). The court therefore ordered a
hand recount of the 9,000 ballots in Miami-Dade County. Observing that the
contest provisions vest broad discretion in the circuit judge to "provide any
relief appropriate under such circumstances," Fla. Stat. Sec. 102.168(8) (2000),
the Supreme Court further held that the Circuit Court could order "the
Supervisor of Elections and the Canvassing Boards, as well as the necessary
public officials, in all counties that have not conducted a manual recount or
tabulation of the undervotes ...to do so forthwith, said tabulation to take
place in the individual counties where the ballots are located."-------- So. 2d,
at-------- (slip. op., at 38).
The Supreme
Court also determined that both Palm Beach County and Miami-Dade County, in
their earlier manual recounts, had identified a net gain of 215 and 168 legal
votes for Vice President Gore. Id., at------ (slip. op., at 33-34). Rejecting
the Circuit Court's conclusion that Palm Beach County lacked the authority to
include the 215 net votes submitted past the November 26 deadline, the Supreme
Court explained that the deadline was not intended to exclude votes identified
after that date through ongoing manual recounts. As to Miami-Dade County, the
Court concluded that although the 168 votes identified were the result of a
partial recount, they were "legal votes (that) could change the outcome of the
election." Id., at (slip op., at 34). The Supreme Court therefore directed the
Circuit Court to include those totals in the certified results, subject to
resolution of the actual vote total from the Miami-Dade partial
recount.
The petition presents the following
questions: whether the Florida Supreme Court established new standards for
resolving Presidential election contests, thereby violating Art. II, Sec. 1, cl.
2, of the United States Constitution and failing to comply with 3 U. S. C. Sec.
5, and whether the use of standardless manual recounts violates the Equal
Protection and Due Process Clauses. With respect to the equal protection
question, we find a violation of the Equal Protection Clause.
II
A
The closeness of
this election, and the multitude of legal challenges which have followed in its
wake, have brought into sharp focus a common, if heretofore unnoticed,
phenomenon.Nationwide statistics reveal that an estimated 2% of ballots cast do
not register a vote for President for whatever reason, including deliberately
choosing no candidate at all or some voter error, such as voting for two
candidates or insufficiently marking a ballot. See Ho, More Than 2M Ballots
Uncounted, AP Online (Nov. 28, 2000); Kelley, Balloting Problems Not Rare But
Only In A Very Close Election Do Mistakes And Mismarking Make A Difference,
Omaha World-Herald (Nov. 15, 2000). In certifying election results, the votes
eligible for inclusion in the certification are the votes meeting the properly
established legal requirements.
This case has
shown that punch card balloting machines can produce an unfortunate number of
ballots which are not punched in a clean, complete way by the voter. After the
current counting, it is likely legislative bodies nationwide will examine ways
to improve the mechanisms and machinery for voting.
B
The individual
citizen has no federal constitutional right to vote for electors for the
President of the United States unless and until the state legislature chooses a
statewide election as the means to implement its power to appoint members of the
Electoral College. U. S. Const., Art. II, Sec. 1. This is the source for the
statement in McPherson v. Blacker, 146 U. S. 1, 35 (1892), that the State
legislature's power to select the manner for appointing electors is plenary; it
may, if it so chooses, select the electors itself, which indeed was the manner
used by State legislatures in several States for many years after the Framing of
our Constitution. Id., at 28-33. History has now favored the voter, and in each
of the several States the citizens themselves vote for Presidential electors.
When the state legislature vests the right to vote for President in its people,
the right to vote as the legislature has prescribed is fundamental; and one
source of its fundamental nature lies in the equal weight accorded to each vote
and the equal dignity owed to each voter. The State, of course, after granting
the franchise in the special context of Article II, can take back the power to
appoint electors. See id., at 35 ("(T)here is no doubt of the right of the
legislature to resume the power at any time, for it can neither be taken away
nor abdicated") (quoting S. Rep. No. 395, 43d Cong., 1st
Sess.).
The right to vote is protected in more
than the initial allocation of the franchise. Equal protection applies as well
to the manner of its exercise. Having once granted the right to vote on equal
terms, the State may not, by later arbitrary and disparate treatment, value one
person's vote over that of another. See, e.g., Harper v. Virginia Bd. of
Elections, 383 U. S. 663, 665 (1966) ("(O)nce the franchise is granted to the
electorate, lines may not be drawn which are inconsistent with the Equal
Protection Clause of the Fourteenth Amendment"). It must be remembered that "the
right of suffrage can be denied by a debasement or dilution of the weight of a
citizen's vote just as effectively as by wholly prohibiting the free exercise of
the franchise." Reynolds v. Sims, 377 U. S. 533, 555
(1964).
There is no difference between the two
sides of the present controversy on these basic propositions. Respondents say
that the very purpose of vindicating the right to vote justifies the recount
procedures now at issue. The question before us, however, is whether the recount
procedures the Florida Supreme Court has adopted are consistent with its
obligation to avoid arbitrary and disparate treatment of the members of its
electorate.
Much of the controversy seems to
revolve around ballot cards designed to be perforated by a stylus but which,
either through error or deliberate omission, have not been perforated with
sufficient precision for a machine to count them. In some cases a piece of the
card--a chad--is hanging, say by two corners. In other cases there is no
separation at all, just an indentation.
The
Florida Supreme Court has ordered that the intent of the voter be discerned from
such ballots. For purposes of resolving the equal protection challenge, it is
not necessary to decide whether the Florida Supreme Court had the authority
under the legislative scheme for resolving election disputes to define what a
legal vote is and to mandate a manual recount implementing that definition. The
recount mechanisms implemented in response to the decisions of the Florida
Supreme Court do not satisfy the minimum requirement for non-arbitrary treatment
of voters necessary to secure the fundamental right. Florida's basic command for
the count of legally cast votes is to consider the "intent of the voter." Gore
v. Harris,------ So. 2d, at------ (slip op., at 39). This is unobjectionable as
an abstract proposition and a starting principle. The problem inheres in the
absence of specific standards to ensure its equal application. The formulation
of uniform rules to determine intent based on these recurring circumstances is
practicable and, we conclude, necessary.
The
law does not refrain from searching for the intent of the actor in a multitude
of circumstances; and in some cases the general command to ascertain intent is
not susceptible to much further refinement. In this instance, however, the
question is not whether to believe a witness but how to interpret the marks or
holes or scratches on an inanimate object, a piece of cardboard or paper which,
it is said, might not have registered as a vote during the machine count. The
factfinder confronts a thing, not a person. The search for intent can be
confined by specific rules designed to ensure uniform
treatment.
The want of those rules here has led
to unequal evaluation of ballots in various respects. See Gore v. Harris,------
So. 2d, at------ (slip op., at 51) (Wells, J., dissenting) ("Should a county
canvassing board count or not count a 'dimpled chad' where the voter is able to
successfully dislodge the chad in every other contest on that ballot? Here, the
county canvassing boards disagree"). As seems to have been acknowledged at oral
argument, the standards for accepting or rejecting contested ballots might vary
not only from county to county but indeed within a single county from one
recount team to another.
The record provides
some examples. A monitor in Miami-Dade County testified at trial that he
observed that three members of the county canvassing board applied different
standards in defining a legal vote. 3 Tr. 497, 499 (Dec. 3, 2000). And testimony
at trial also revealed that at least one county changed its evaluative standards
during the counting process. Palm Beach County, for example, began the process
with a 1990 guideline which precluded counting completely attached chads,
switched to a rule that considered a vote to be legal if any light could be seen
through a chad, changed back to the 1990 rule, and then abandoned any pretense
of a per se rule, only to have a court order that the county consider dimpled
chads legal. This is not a process with sufficient guarantees of equal
treatment.
An early case in our one person, one
vote jurisprudence arose when a State accorded arbitrary and disparate treatment
to voters in its different counties. Gray v. Sanders, 372 U. S. 368 (1963). The
Court found a constitutional violation. We relied on these principles in the
context of the Presidential selection process in Moore v. Ogilvie, 394 U. S. 814
(1969), where we invalidated a county-based procedure that diluted the influence
of citizens in larger counties in the nominating process. There we observed that
"(t)he idea that one group can be granted greater voting strength than another
is hostile to the one man, one vote basis of our representative government."
Id., at 819.
The State Supreme Court ratified
this uneven treatment. It mandated that the recount totals from two counties,
Miami-Dade and Palm Beach, be included in the certified total. The court also
appeared to hold sub silentio that the recount totals from Broward County, which
were not completed until after the original November 14 certification by the
Secretary of State, were to be considered part of the new certified vote totals
even though the county certification was not contested by Vice President Gore.
Yet each of the counties used varying standards to determine what was a legal
vote. Broward County used a more forgiving standard than Palm Beach County, and
uncovered almost three times as many new votes, a result markedly
disproportionate to the difference in population between the
counties.
In addition, the recounts in these
three counties were not limited to so-called undervotes but extended to all of
the ballots. The distinction has real consequences. A manual recount of all
ballots identifies not only those ballots which show no vote but also those
which contain more than one, the so-called overvotes. Neither category will be
counted by the machine. This is not a trivial concern. At oral argument,
respondents estimated there are as many as 110,000 overvotes statewide. As a
result, the citizen whose ballot was not read by a machine because he failed to
vote for a candidate in a way readable by a machine may still have his vote
counted in a manual recount; on the other hand, the citizen who marks two
candidates in a way discernable by the machine will not have the same
opportunity to have his vote count, even if a manual examination of the ballot
would reveal the requisite indicia of intent. Furthermore, the citizen who marks
two candidates, only one of which is discernable by the machine, will have his
vote counted even though it should have been read as an invalid ballot. The
State Supreme Court's inclusion of vote counts based on these variant standards
exemplifies concerns with the remedial processes that were under
way.
That brings the analysis to yet a further
equal protection problem. The votes certified by the court included a partial
total from one county, Miami-Dade. The Florida Supreme Court's decision thus
gives no assurance that the recounts included in a final certification must be
complete. Indeed, it is respondent's submission that it would be consistent with
the rules of the recount procedures to include whatever partial counts are done
by the time of final certification, and we interpret the Florida Supreme Court's
decision to permit this. See-------- So. 2d, at--------, n. 21 (slip op., at 37,
n. 21) (noting "practical difficulties" may control outcome of election, but
certifying partial Miami-Dade total nonetheless). This accommodation no doubt
results from the truncated contest period established by the Florida Supreme
Court in Bush I, at respondents' own urging. The press of time does not diminish
the constitutional concern. A desire for speed is not a general excuse for
ignoring equal protection guarantees.
In
addition to these difficulties the actual process by which the votes were to be
counted under the Florida Supreme Court's decision raises further concerns. That
order did not specify who would recount the ballots. The county canvassing
boards were forced to pull together ad hoc teams comprised of judges from
various Circuits who had no previous training in handling and interpreting
ballots. Furthermore, while others were permitted to observe, they were
prohibited from objecting during the
recount.
The recount process, in its features
here described, is inconsistent with the minimum procedures necessary to protect
the fundamental right of each voter in the special instance of a statewide
recount under the authority of a single state judicial officer. Our
consideration is limited to the present circumstances, for the problem of equal
protection in election processes generally presents many
complexities.
The question before the Court is
not whether local entities, in the exercise of their expertise, may develop
different systems for implementing elections. Instead, we are presented with a
situation where a state court with the power to assure uniformity has ordered a
statewide recount with minimal procedural safeguards. When a court orders a
statewide remedy, there must be at least some assurance that the rudimentary
requirements of equal treatment and fundamental fairness are
satisfied.
Given the Court's assessment that
the recount process underway was probably being conducted in an unconstitutional
manner, the Court stayed the order directing the recount so it could hear this
case and render an expedited decision. The contest provision, as it was mandated
by the State Supreme Court, is not well calculated to sustain the confidence
that all citizens must have in the outcome of elections. The State has not shown
that its procedures include the necessary safeguards. The problem, for instance,
of the estimated 110,000 overvotes has not been addressed, although Chief
Justice Wells called attention to the concern in his dissenting opinion.
See-------- So. 2d, at--------, n. 26 (slip op., at 45, n.
26).
Upon due consideration of the difficulties
identified to this point, it is obvious that the recount cannot be conducted in
compliance with the requirements of equal protection and due process without
substantial additional work. It would require not only the adoption (after
opportunity for argument) of adequate statewide standards for determining what
is a legal vote, and practicable procedures to implement them, but also orderly
judicial review of any disputed matters that might arise. In addition, the
Secretary of State has advised that the recount of only a portion of the ballots
requires that the vote tabulation equipment be used to screen out undervotes, a
function for which the machines were not designed. If a recount of overvotes
were also required, perhaps even a second screening would be necessary. Use of
the equipment for this purpose, and any new software developed for it, would
have to be evaluated for accuracy by the Secretary of State, as required by Fla.
Stat. Sec. 101.015 (2000).
The Supreme Court of
Florida has said that the legislature intended the State's electors to
"participat(e) fully in the federal electoral process," as provided in 3 U. S.
C. Sec. 5.------ So. 2d, at------ (slip op. at 27); see also Palm Beach
Canvassing Bd. v. Harris, 2000 WL 1725434, ..13 (Fla. 2000). That statute, in
turn, requires that any controversy or contest that is designed to lead to a
conclusive selection of electors be completed by December 12. That date is upon
us, and there is no recount procedure in place under the State Supreme Court's
order that comports with minimal constitutional standards. Because it is evident
that any recount seeking to meet the December 12 date will be unconstitutional
for the reasons we have discussed, we reverse the judgment of the Supreme Court
of Florida ordering a recount to proceed.
Seven
Justices of the Court agree that there are constitutional problems with the
recount ordered by the Florida Supreme Court that demand a remedy. See post, at
6 (Souter, J., dissenting); post, at 2, 15 (Breyer, J., dissenting). The only
disagreement is as to the remedy. Because the Florida Supreme Court has said
that the Florida Legislature intended to obtain the safe-harbor benefits of 3 U.
S. C. Sec. 5, Justice Breyer's proposed remedy--remanding to the Florida Supreme
Court for its ordering of a constitutionally proper contest until December
18-contemplates action in violation of the Florida election code, and hence
could not be part of an "appropriate" order authorized by Fla. Stat. Sec.
102.168(8) (2000).
None are more conscious of
the vital limits on judicial authority than are the members of this Court, and
none stand more in admiration of the Constitution's design to leave the
selection of the President to the people, through their legislatures, and to the
political sphere. When contending parties invoke the process of the courts,
however, it becomes our unsought responsibility to resolve the federal and
constitutional issues the judicial system has been forced to
confront.
The judgment of the Supreme Court of
Florida is reversed, and the case is remanded for further proceedings not
inconsistent with this opinion.
Pursuant to
this Court's Rule 45.2, the Clerk is directed to issue the mandate in this case
forthwith.
It is so ordered.------
---
Chief Justice
Rehnquist, with whom Justice Scalia and Justice Thomas join,
concurring.
We join the per curiam opinion. We
write separ- ately because we believe there are additional grounds that require
us to reverse the Florida Supreme Court's decision.
I
We deal here not
with an ordinary election, but with an election for the President of the United
States. In Burroughs v. United States, 290 U. S. 534, 545 (1934), we
said:
"While presidential electors are not
officers or agents of the federal government (In re Green, 134 U. S. 377, 379),
they exercise federal functions under, and discharge duties in virtue of
authority conferred by, the Constitution of the United States. The President is
vested with the executive power of the nation. The importance of his election
and the vital character of its relationship to and effect upon the welfare and
safety of the whole people cannot be too strongly
stated."
Likewise, in Anderson v. Celebrezze,
460 U. S. 780, 794-795 (1983) (footnote omitted), we said: "(I)n the context of
a Presidential election, state-imposed restrictions implicate a uniquely
important national interest. For the President and the Vice President of the
United States are the only elected officials who represent all the voters in the
Nation."
In most cases, comity and respect for
federalism compel us to defer to the decisions of state courts on issues of
state law. That practice reflects our understanding that the decisions of state
courts are definitive pronouncements of the will of the States as sovereigns.
Cf. Erie R. Co. v. Tompkins, 304 U. S. 64 (1938). Of course, in ordinary cases,
the distribution of powers among the branches of a State's government raises no
questions of federal constitutional law, subject to the requirement that the
government be republican in character. See U. S. Const., Art. IV, Sec. 4. But
there are a few exceptional cases in which the Constitution imposes a duty or
confers a power on a particular branch of a State's government. This is one of
them. Article II, Sec. 1, cl. 2, provides that "(e)ach State shall appoint, in
such Manner as the Legislature thereof may direct," electors for President and
Vice President. (Emphasis added.) Thus, the text of the election law itself, and
not just its interpretation by the courts of the States, takes on independent
significance.
In McPherson v. Blacker, 146 U.
S. 1 (1892), we explained that Art. II, Sec. 1, cl. 2, "convey(s) the broadest
power of determination" and "leaves it to the legislature exclusively to define
the method" of appointment. Id., at 27. A significant departure from the
legislative scheme for appointing Presidential electors presents a federal
constitutional question.
3 U. S. C. Sec. 5
informs our application of Art. II, Sec. 1, cl. 2, to the Florida statutory
scheme, which, as the Florida Supreme Court acknowledged, took that statute into
account. Section 5 provides that the State's selection of electors "shall be
conclusive, and shall govern in the counting of the electoral votes" if the
electors are chosen under laws enacted prior to election day, and if the
selection process is completed six days prior to the meeting of the electoral
college. As we noted in Bush v. Palm Beach County Canvassing Bd., ante, at
6.
"Since Sec. 5 contains a principle of
federal law that would assure finality of the State's determination if made
pursuant to a state law in effect before the election, a legislative wish to
take advantage of the 'safe harbor' would counsel against any construction of
the Election Code that Congress might deem to be a change in the
law."
If we are to respect the legislature's
Article II powers, therefore, we must ensure that postelection state-court
actions do not frustrate the legislative desire to attain the "safe harbor"
provided by Sec. 5.
In Florida, the legislature
has chosen to hold statewide elections to appoint the State's 25 electors.
Importantly, the legislature has delegated the authority to run the elections
and to oversee election disputes to the Secretary of State (Secretary), Fla.
Stat. Sec. 97.012(1) (2000), and to state circuit courts, Sec. Sec. 102.168(1),
102.168(8). Isolated sections of the code may well admit of more than one
interpretation, but the general coherence of the legislative scheme may not be
altered by judicial interpretation so as to wholly change the statutorily
provided apportionment of responsibility among these various bodies. In any
election but a Presidential election, the Florida Supreme Court can give as
little or as much deference to Florida's executives as it chooses, so far as
Article II is concerned, and this Court will have no cause to question the
court's actions. But, with respect to a Presidential election, the court must be
both mindful of the legislature's role under Article II in choosing the manner
of appointing electors and deferential to those bodies expressly empowered by
the legislature to carry out its constitutional
mandate.
In order to determine whether a state
court has infringed upon the legislature's authority, we necessarily must
examine the law of the State as it existed prior to the action of the court.
Though we generally defer to state courts on the interpretation of state
law--see, e.g., Mullaney v. Wilbur, 421 U. S. 684 (1975)--there are of course
areas in which the Constitution requires this Court to undertake an independent,
if still deferential, analysis of state
law.
For example, in NAACP v. Alabama ex rel.
Patterson, 357 U. S. 449 (1958), it was argued that we were without jurisdiction
because the petitioner had not pursued the correct appellate remedy in Alabama's
state courts. Petitioners had sought a state-law writ of certiorari in the
Alabama Supreme Court when a writ of mandamus, according to that court, was
proper. We found this state-law ground inadequate to defeat our jurisdiction
because we were "unable to reconcile the procedural holding of the Alabama
Supreme Court" with prior Alabama precedent. Id., at 456. The purported
state-law ground was so novel, in our independent estimation, that "petitioner
could not fairly be deemed to have been apprised of its existence." Id., at
457.
Six years later we decided Bouie v. City
of Columbia, 378 U. S. 347 (1964), in which the state court had held, contrary
to precedent, that the state trespass law applied to black sit-in demonstrators
who had consent to enter private property but were then asked to leave. Relying
upon NAACP, we concluded that the South Carolina Supreme Court's interpretation
of a state penal statute had impermissibly broadened the scope of that statute
beyond what a fair reading provided, in violation of due process. See 378 U. S.,
at 361-362. What we would do in the present case is precisely parallel: Hold
that the Florida Supreme Court's interpretation of the Florida election laws
impermissibly distorted them beyond what a fair reading required, in violation
of Article II.(Footnote 1)
This inquiry does
not imply a disrespect for state courts but rather a respect for the
constitutionally prescribed role of state legislatures. To attach definitive
weight to the pronouncement of a state court, when the very question at issue is
whether the court has actually departed from the statutory meaning, would be to
abdicate our responsibility to enforce the explicit requirements of Article
II.
II
Acting pursuant
to its constitutional grant of authority, the Florida Legislature has created a
detailed, if not perfectly crafted, statutory scheme that provides for
appointment of Presidential electors by direct election. Fla. Stat. Sec. 103.011
(2000). Under the statute, "(v)otes cast for the actual candidates for President
and Vice President shall be counted as votes cast for the presidential electors
supporting such candidates." Ibid. The legislature has designated the Secretary
of State as the "chief election officer," with the responsibility to "(o)btain
and maintain uniformity in the application, operation, and interpretation of the
election laws." Sec. 97.012. The state legislature has delegated to county
canvassing boards the duties of administering elections. Sec. 102.141. Those
boards are responsible for providing results to the state Elections Canvassing
Commission, comprising the Governor, the Secretary of State, and the Director of
the Division of Elections. Sec. 102.111. Cf. Boardman v. Esteva, 323 So. 2d 259,
268, n. 5 (1975) ("The election process . . . is committed to the executive
branch of government through duly designated officials all charged with specific
duties ... . (The) judgments (of these officials) are entitled to be regarded by
the courts as presumptively correct . . .
").
After the election has taken place, the
canvassing boards receive returns from precincts, count the votes, and in the
event that a candidate was defeated by .5% or less, conduct a mandatory recount.
Fla. Stat. Sec. 102.141(4) (2000). The county canvassing boards must file
certified election returns with the Department of State by 5 p.m. on the seventh
day following the election. Sec. 102.112(1). The Elections Canvassing Commission
must then certify the results of the election. Sec.
102.111(1).
The state legislature has also
provided mechanisms both for protesting election returns and for contesting
certified election results. Section 102.166 governs protests. Any protest must
be filed prior to the certification of election results by the county canvassing
board. Sec. 102.166(4)(b). Once a protest has been filed, "the county canvassing
board may authorize a manual recount." Sec. 102.166(4)(c). If a sample recount
conducted pursuant to Sec. 102.166(5) "indicates an error in the vote tabulation
which could affect the outcome of the election," the county canvassing board is
instructed to: "(a) Correct the error and recount the remaining precincts with
the vote tabulation system; (b) Request the Department of State to verify the
tabulation software; or (c) Manually recount all ballots," Sec. 102.166(5). In
the event a canvassing board chooses to conduct a manual recount of all ballots,
Sec. 102.166(7) prescribes procedures for such a
recount.
Contests to the certification of an
election, on the other hand, are controlled by Sec. 102.168. The grounds for
contesting an election include "(r)eceipt of a number of illegal votes or
rejection of a number of legal votes sufficient to change or place in doubt the
result of the election." Sec. 102.168(3)(c). Any contest must be filed in the
appropriate Florida circuit court, Fla. Stat. Sec. 102.168(1), and the
canvassing board or election board is the proper party defendant, Sec.
102.168(4). Section 102.168(8) provides that "(t)he circuit judge to whom the
contest is presented may fashion such orders as he or she deems necessary to
ensure that each allegation in the complaint is investigated, examined, or
checked, to prevent or correct any alleged wrong, and to provide any relief
appropriate under such circumstances." In Presidential elections, the contest
period necessarily terminates on the date set by 3 U. S. C. Sec. 5 for
concluding the State's "final determination" of election
controversies."
In its first decision, Palm
Beach Canvassing Bd. v. Harris,------ So. 2d,------ (Nov. 21, 2000) (Harris I),
the Florida Supreme Court extended the 7-day statutory certification deadline
established by the legislature.(Footnote 2) This modification of the code, by
lengthening the protest period, necessarily shortened the contest period for
Presidential elections. Underlying the extension of the certification deadline
and the shortchanging of the contest period was, presumably, the clear
implication that certification was a matter of significance: The certified
winner would enjoy presumptive validity, making a contest proceeding by the
losing candidate an uphill battle. In its latest opinion, however, the court
empties certification of virtually all legal consequence during the contest, and
in doing so departs from the provisions enacted by the Florida
Legislature.
The court determined that
canvassing boards' decisions regarding whether to recount ballots past the
certification deadline (even the certification deadline established by Harris I)
are to be reviewed de novo, although the election code clearly vests discretion
whether to recount in the boards, and sets strict deadlines subject to the
Secretary's rejection of late tallies and monetary fines for tardiness. See Fla.
Stat. Sec. 102.112 (2000). Moreover, the Florida court held that all late vote
tallies arriving during the contest period should be automatically included in
the certification regardless of the certification deadline (even the
certification deadline established by Harris I), thus virtually eliminating both
the deadline and the Secretary's discretion to disregard recounts that violate
it.(Footnote 3)
Moreover, the court's
interpretation of "legal vote," and hence its decision to order a contest-period
recount, plainly departed from the legislative scheme. Florida statutory law
cannot reasonably be thought to require the counting of improperly marked
ballots. Each Florida precinct before election day provides instructions on how
properly to cast a vote, Sec. 101.46; each polling place on election day
contains a working model of the voting machine it uses, Sec. 101.5611; and each
voting booth contains a sample ballot, Sec. 101.46. In precincts using
punch-card ballots, voters are instructed to punch out the ballot
cleanly:
AFTER VOTING, CHECK YOUR BALLOT CARD
TO BE SURE YOUR VOTING SELECTIONS ARE CLEARLY AND CLEANLY PUNCHED AND THERE ARE
NO CHIPS LEFT HANGING ON THE BACK OF THE
CARD.
Instructions to Voters, quoted in
Touchston v. McDermott, 2000 WL 1781942, ..6 & n. 19 (CA11) (Tjoflat, J.,
dissenting). No reasonable person would call it "an error in the vote
tabulation," Fla. Stat. Sec. 102.166(5), or a "rejection of legal votes," Fla.
Stat. Sec. 102.168(3)(c),(Footnote 4) when electronic or electromechanical
equipment performs precisely in the manner designed, and fails to count those
ballots that are not marked in the manner that these voting instructions
explicitly and prominently specify. The scheme that the Florida Supreme Court's
opinion attributes to the legislature is one in which machines are required to
be "capable of correctly counting votes," Sec. 101.5606(4), but which
nonetheless regularly produces elections in which legal votes are predictably
not tabulated, so that in close elections manual recounts are regularly
required. This is of course absurd. The Secretary of State, who is authorized by
law to issue binding interpretations of the election code, Sec. Sec. 97.012,
106.23, rejected this peculiar reading of the statutes. See DE 00-13 (opinion of
the Division of Elections). The Florida Supreme Court, although it must defer to
the Secretary's interpretations, see Krivanek v. Take Back Tampa Political
Committee, 625 So. 2d 840, 844 (Fla. 1993), rejected her reasonable
interpretation and embraced the peculiar one. See Palm Beach County Canvassing
Board v. Harris, No. SC00-2346 (Dec. 11, 2000) (Harris
III).
But as we indicated in our remand of the
earlier case, in a Presidential election the clearly expressed intent of the
legislature must prevail. And there is no basis for reading the Florida statutes
as requiring the counting of improperly marked ballots, as an examination of the
Florida Supreme Court's textual analysis shows. We will not parse that analysis
here, except to note that the principal provision of the election code on which
it relied, Sec. 101.5614(5), was, as the Chief Justice pointed out in his
dissent from Harris II, entirely irrelevant. See Gore v. Harris, No. SC00-2431,
slip op., at 50 (Dec. 8, 2000). The State's Attorney General (who was supporting
the Gore challenge) confirmed in oral argument here that never before the
present election had a manual recount been conducted on the basis of the
contention that "undervotes" should have been examined to determine voter
intent. Tr. of Oral Arg. in Bush v. Palm Beach County Canvassing Bd., 39-40
(Dec. 1, 2000); cf. Broward County Canvassing Board v. Hogan, 607 So. 2d 508,
509 (Fla. Ct. App. 1992) (denial of recount for failure to count ballots with
"hanging paper chads"). For the court to step away from this established
practice, prescribed by the Secretary of State, the state official charged by
the legislature with "responsibility to ...(o)btain and maintain uniformity in
the application, operation, and interpretation of the election laws," Sec.
97.012(1), was to depart from the legislative scheme.
III
The scope and
nature of the remedy ordered by the Florida Supreme Court jeopardizes the
"legislative wish" to take advantage of the safe harbor provided by 3 U. S. C.
Sec. 5. Bush v. Palm Beach County Canvassing Bd., ante, at 6. December 12, 2000,
is the last date for a final determination of the Florida electors that will
satisfy Sec. 5. Yet in the late afternoon of December 8th--four days before this
deadline--the Supreme Court of Florida ordered recounts of tens of thousands of
so-called "undervotes" spread through 64 of the State's 67 counties. This was
done in a search for elusive--perhaps delusive--certainty as to the exact count
of 6 million votes. But no one claims that these ballots have not previously
been tabulated; they were initially read by voting machines at the time of the
election, and thereafter reread by virtue of Florida's automatic recount
provision. No one claims there was any fraud in the election. The Supreme Court
of Florida ordered this additional recount under the provision of the election
code giving the circuit judge the authority to provide relief that is
"appropriate under such circumstances." Fla. Stat. Sec. 102.168(8)
(2000).
Surely when the Florida Legislature
empowered the courts of the State to grant "appropriate" relief, it must have
meant relief that would have become final by the cut-off date of 3 U. S. C. Sec.
5. In light of the inevitable legal challenges and ensuing appeals to the
Supreme Court of Florida and petitions for certiorari to this Court, the entire
recounting process could not possibly be completed by that date. Whereas the
majority in the Supreme Court of Florida stated its confidence that "the
remaining undervotes in these counties can be (counted) within the required time
frame,"------ So. 2d. at------, n. 22 (slip op., at 38, n. 22), it made no
assertion that the seemingly inevitable appeals could be disposed of in that
time. Although the Florida Supreme Court has on occasion taken over a year to
resolve disputes over local elections, see, e.g., Beckstrom v. Volusia County
Canvassing Bd., 707 So. 2d 720 (1998) (resolving contest of sheriff's race 16
months after the election), it has heard and decided the appeals in the present
case with great promptness. But the federal deadlines for the Presidential
election simply do not permit even such a shortened
process.
As the dissent
noted:
"In (the four days remaining), all
questionable ballots must be reviewed by the judicial officer appointed to
discern the intent of the voter in a process open to the public. Fairness
dictates that a provision be made for either party to object to how a particular
ballot is counted. Additionally, this short time period must allow for judicial
review. I respectfully submit this cannot be completed without taking Florida's
presidential electors outside the safe harbor provision, creating the very real
possibility of disenfranchising those nearly 6 million voters who are able to
correctly cast their ballots on election day."------ So. 2d, at------ (slip op.,
at 55) (Wells, C. J., dissenting).
The other
dissenters echoed this concern: "(T)he majority is departing from the essential
requirements of the law by providing a remedy which is impossible to achieve and
which will ultimately lead to chaos." Id., at------ (slip op., at 67 (Harding,
J., dissenting, Shaw, J. concurring).
Given all
these factors, and in light of the legislative intent identified by the Florida
Supreme Court to bring Florida within the "safe harbor" provision of 3 U. S. C.
Sec. 5, the remedy prescribed by the Supreme Court of Florida cannot be deemed
an "appropriate" one as of December 8. It significantly departed from the
statutory framework in place on November 7, and authorized open-ended further
proceedings which could not be completed by December 12, thereby preventing a
final determination by that date.
For these
reasons, in addition to those given in the per curiam, we would
reverse.------
Similarly, 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 Carolina Coastal Council, 505 U. S. 1003 (1992). In
one of our oldest cases, we similarly made an independent evaluation of state
law in order to protect federal treaty guarantees. In Fairfax's Devisee v.
Hunter's Lessee, 7 Cranch 603 (1813), we disagreed with the Supreme Court of
Appeals of Virginia that a 1782 state law had extinguished the property
interests of one Denny Fairfax, so that a 1789 ejectment order against Fairfax
supported by a 1785 state law did not constitute a future confiscation under the
1783 peace treaty with Great Britain. See id., at 623; Hunter v. Fairfax's
Devisee, 1 Munf. 218 (Va. 1809). (Footnote
2)
We vacated that decision and remanded that
case; the Florida Supreme Court reissued the same judgment with a new opinion on
December 11, 2000,------ So. 2d,------. (Footnote
3)
Specifically, the Florida Supreme Court
ordered the Circuit Court to include in the certified vote totals those votes
identified for Vice President Gore in Palm Beach County and Miami-Dade County.
(Footnote 4)
It 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 contest phase.
---
Justice Stevens, with
whom Justice Ginsburg and Justice Breyer join,
dissenting.
The Constitution assigns to the
States the primary responsibility for determining the manner of selecting the
Presidential electors. See Art. II, Sec. 1, cl. 2. When questions arise about
the meaning of state laws, including election laws, it is our settled practice
to accept the opinions of the highest courts of the States as providing the
final answers. On rare occasions, however, either federal statutes or the
Federal Constitution may require federal judicial intervention in state
elections. This is not such an occasion.
The
federal questions that ultimately emerged in this case are not substantial.
Article II provides that "(e)ach State shall appoint, in such Manner as the
Legislature thereof may direct, a Number of Electors." Ibid. (emphasis added).
It does not create state legislatures out of whole cloth, but rather takes them
as they come--as creatures born of, and constrained by, their state
constitutions. Lest there be any doubt, we stated over 100 years ago in
McPherson v. Blacker, 146 U. S. 1, 25 (1892), that "(w)hat is forbidden or
required to be done by a State" in the Article II context "is forbidden or
required of the legislative power under state constitutions as they exist." In
the same vein, we also observed that "(t)he (State's) legislative power is the
supreme authority except as limited by the constitution of the State." Ibid.;
cf. Smiley v. Holm, 285 U. S. 355, 367 (1932).(Footnote 1) The legislative power
in Florida is subject to judicial review pursuant to Article V of the Florida
Constitution, and nothing in Article II of the Federal Constitution frees the
state legislature from the constraints in the state constitution that created
it. Moreover, the Florida Legislature's own decision to employ a unitary code
for all elections indicates that it intended the Florida Supreme Court to play
the same role in Presidential elections that it has historically played in
resolving electoral disputes. The Florida Supreme Court's exercise of appellate
jurisdiction therefore was wholly consistent with, and indeed contemplated by,
the grant of authority in Article II.
It hardly
needs stating that Congress, pursuant to 3 U. S. C. Sec. 5, did not impose any
affirmative duties upon the States that their governmental branches could
"violate." Rather, Sec. 5 provides a safe harbor for States to select electors
in contested elections "by judicial or other methods" established by laws prior
to the election day. Section 5, like Article II, assumes the involvement of the
state judiciary in interpreting state election laws and resolving election
disputes under those laws. Neither Sec. 5 nor Article II grants federal judges
any special authority to substitute their views for those of the state judiciary
on matters of state law.
Nor are petitioners
correct in asserting that the failure of the Florida Supreme Court to specify in
detail the precise manner in which the "intent of the voter," Fla. Stat. Sec.
101.5614(5) (Supp. 2001), is to be determined rises to the level of a
constitutional violation.(Footnote 2) We found such a violation when individual
votes within the same State were weighted unequally, see, e.g., Reynolds v.
Sims, 377 U. S. 533, 568 (1964), but we have never before called into question
the substantive standard by which a State determines that a vote has been
legally cast. And there is no reason to think that the guidance provided to the
factfinders, specifically the various canvassing boards, by the "intent of the
voter" standard is any less sufficient--or will lead to results any less
uniform--than, for example, the "beyond a reasonable doubt" standard employed
everyday by ordinary citizens in courtrooms across this country.(Footnote
3)
Admittedly, the use of differing
substandards for determining voter intent in different counties employing
similar voting systems may raise serious concerns. Those concerns are
alleviated--if not eliminated--by the fact that a single impartial magistrate
will ultimately adjudicate all objections arising from the recount process. Of
course, as a general matter, "(t)he interpretation of constitutional principles
must not be too literal. We must remember that the machinery of government would
not work if it were not allowed a little play in its joints." Bain Peanut Co. of
Tex. v. Pinson, 282 U. S. 499, 501 (1931) (Holmes, J.). If it were otherwise,
Florida's decision to leave to each county the determination of what balloting
system to employ--despite enormous differences in accuracy(Footnote 4)--might
run afoul of equal protection. So, too, might the similar decisions of the vast
majority of state legislatures to delegate to local authorities certain
decisions with respect to voting systems and ballot
design.
Even assuming that aspects of the
remedial scheme might ultimately be found to violate the Equal Protection
Clause, I could not subscribe to the majority's disposition of the case. As the
majority explicitly holds, once a state legislature determines to select
electors through a popular vote, the right to have one's vote counted is of
constitutional stature. As the majority further acknowledges, Florida law holds
that all ballots that reveal the intent of the voter constitute valid votes.
Recognizing these principles, the majority nonetheless orders the termination of
the contest proceeding before all such votes have been tabulated. Under their
own reasoning, the appropriate course of action would be to remand to allow more
specific procedures for implementing the legislature's uniform general standard
to be established.
In the interest of finality,
however, the majority effectively orders the disenfranchisement of an unknown
number of voters whose ballots reveal their intent--and are therefore legal
votes under state law--but were for some reason rejected by ballot-counting
machines. It does so on the basis of the deadlines set forth in Title 3 of the
United States Code. Ante, at 11. But, as I have already noted, those provisions
merely provide rules of decision for Congress to follow when selecting among
conflicting slates of electors. Supra, at 2. They do not prohibit a State from
counting what the majority concedes to be legal votes until a bona fide winner
is determined. Indeed, in 1960, Hawaii appointed two slates of electors and
Congress chose to count the one appointed on January 4, 1961, well after the
Title 3 deadlines. See Josephson & Ross, Repairing the Electoral College, 22
J. Legis. 145, 166, n. 154 (1996).(Footnote 5) Thus, nothing prevents the
majority, even if it properly found an equal protection violation, from ordering
relief appropriate to remedy that violation without depriving Florida voters of
their right to have their votes counted. As the majority notes, "(a) desire for
speed is not a general excuse for ignoring equal protection guarantees." Ante,
at 10.
Finally, neither in this case, nor in
its earlier opinion in Palm Beach County Canvassing Bd. v. Harris, 2000 WL
1725434 (Fla., Nov. 21, 2000), did the Florida Supreme Court make any
substantive change in Florida electoral law.(Footnote 6) Its decisions were
rooted in long-established precedent and were consistent with the relevant
statutory provisions, taken as a whole. It did what courts do(Footnote 7)--it
decided the case before it in light of the legislature's intent to leave no
legally cast vote uncounted. In so doing, it relied on the sufficiency of the
general "intent of the voter" standard articulated by the state legislature,
coupled with a procedure for ultimate review by an impartial judge, to resolve
the concern about disparate evaluations of contested ballots. If we assume--as I
do--that the members of that court and the judges who would have carried out its
mandate are impartial, its decision does not even raise a colorable federal
question.
What must underlie petitioners'
entire federal assault on the Florida election procedures is an unstated lack of
confidence in the impartiality and capacity of the state judges who would make
the critical decisions if the vote count were to proceed. Otherwise, their
position is wholly without merit. The endorsement of that position by the
majority of this Court can only lend credence to the most cynical appraisal of
the work of judges throughout the land. It is confidence in the men and women
who administer the judicial system that is the true backbone of the rule of law.
Time will one day heal the wound to that confidence that will be inflicted by
today's decision. One thing, however, is certain. Although we may never know
with complete certainty the identity of the winner of this year's Presidential
election, the identity of the loser is perfectly clear. It is the Nation's
confidence in the judge as an impartial guardian of the rule of
law.
I respectfully
dissent.------
"Wherever the term
'legislature' is used in the Constitution it is necessary to consider the nature
of the particular action in view." 285 U. S., at 367. It is perfectly clear that
the meaning of the words "Manner" and "Legislature" as used in Article II, Sec.
1, parallels the usage in Article I, Sec. 4, rather than the language in Article
V. U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 805 (1995). Article I,
Sec. 4, and Article II, Sec. 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. 130 (1922), and Hawke v. Smith (No. 1), 253 U. S. 221
(1920), is misplaced. (Footnote 2)
The Florida
statutory standard is consistent with the practice of the majority of States,
which apply either an "intent of the voter" standard or an "impossible to
determine the elector's choice" standard in ballot recounts. The following
States use an "intent of the voter" standard: Ariz. Rev. Stat. Ann. Sec.
16-645(A) (Supp. 2000) (standard for canvassing write-in votes); Conn. Gen.
Stat. Sec. 9-150a(j) (1999) (standard for absentee ballots, including three
conclusive presumptions); Ind. Code Sec. 3-12-1-1 (1992); Me. Rev. Stat. Ann.,
Tit. 21-A, Sec. 1(13) (1993); Md. Ann. Code, Art. 33, Sec. 11-302(d) (2000
Supp.) (standard for absentee ballots); Mass. Gen. Laws Sec. 70E (1991)
(applying standard to Presidential primaries); Mich. Comp. Laws Sec. 168.799a(3)
(Supp. 2000); Mo. Rev. Stat. Sec. 115.453(3) (Cum. Supp. 1998) (looking to
voter's intent where there is substantial compliance with statutory
requirements); Tex. Elec. Code Ann. Sec. 65.009(c) (1986); Utah Code Ann. Sec.
20A-4-104(5)(b) (Supp. 2000) (standard for write-in votes), Sec. 20A-4-105(6)(a)
(standard for mechanical ballots); Vt. Stat. Ann., Tit. 17, Sec. 2587(a) (1982);
Va. Code Ann. Sec. 24.2-644(A) (2000); Wash. Rev. Code Sec. 29.62.180(1) (Supp.
2001) (standard for write-in votes); Wyo. Stat. Ann. Sec. 22-14-104 (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 Sec.
11-46-44(c) (1992), Ala. Code Sec. 17-13-2 (1995); Ariz. Rev. Stat. Ann. Sec.
16-610 (1996) (standard for rejecting ballot); Cal. Elec. Code Ann. Sec.
15154(c) (West Supp. 2000); Colo. Rev. Stat. Sec. 1-7-309(1) (1999) (standard
for paper ballots), Sec. 1-7-508(2) (standard for electronic ballots); Del. Code
Ann., Tit. 15, Sec. 4972(4) (1999); Idaho Code Sec. 34-1203 (1981); Ill. Comp.
Stat., ch. 10, Sec. 5/7-51 (1993) (standard for primaries), id., ch. 10, Sec.
5/17-16 (1993) (standard for general elections); Iowa Code Sec. 49.98 (1999);
Me. Rev. Stat. Ann., Tit. 21-A Sec. Sec. 696(2)(B), (4) (Supp. 2000); Minn.
Stat. Sec. 204C.22(1) (1992); Mont. Code Ann. Sec. 13-15-202 (1997) (not
counting votes if "elector's choice cannot be determined"); Nev. Rev. Stat. Sec.
293.367(d) (1995); N. Y. Elec. Law Sec. 9-112(6) (McKinney 1998); N. C. Gen.
Stat. Sec. Sec. 163-169(b), 163-170 (1999); N. D. Cent. Code Sec. 16.1-15-01(1)
(Supp. 1999); Ohio Rev. Code Ann. Sec. 3505.28 (1994); 26 Okla. Stat., Tit. 26,
Sec. 7-127(6) (1997); Ore. Rev. Stat. Sec. 254.505(1) (1991); S. C. Code Ann.
Sec. 7-13-1120 (1977); S. D. Codified Laws Sec. 12-20-7 (1995); Tenn. Code Ann.
Sec. 2-7-133(b) (1994); W. Va. Code Sec. 3-6-5(g) (1999). (Footnote
3)
Cf. Victor v. Nebraska, 511 U. S. 1, 5
(1994) ("The beyond a reasonable doubt standard is a requirement of due process,
but the Constitution neither prohibits trial courts from defining reasonable
doubt nor requires them to do so"). (Footnote
4)
The percentage of nonvotes in this election
in counties using a punch-card system was 3.92%; in contrast, the rate of error
under the more modern optical-scan systems was only 1.43%. Siegel v. LePore, No.
00-15981, 2000 WL 1781946, ..31, ..32, ..43 (charts C and F) (CA11, Dec. 6,
2000). Put in other terms, for every 10,000 votes cast, punch-card systems
result in 250 more nonvotes than optical-scan systems. A total of 3,718,305
votes were cast under punch-card systems, and 2,353,811 votes were cast under
optical-scan systems. Ibid. (Footnote
5)
Republican electors were certified by the
Acting Governor on November 28, 1960. A recount was ordered to begin on December
13, 1960. 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, 22 J. Legis., at
166, n. 154. (Footnote 6)
When, for example, it
resolved the previously unanswered question whether the word "shall" in Fla.
Stat. Sec. 102.111 or the word "may" in Sec. 102.112 governs the scope of the
Secretary of State's authority to ignore untimely election returns, it did not
"change the law." Like any other judicial interpretation of a statute, its
opinion was an authoritative interpretation of what the statute's relevant
provisions have meant since they were enacted. Rivers v. Roadway Express, Inc.,
511 U. S. 298, 312-313 (1994). (Footnote 7)
"It
is emphatically the province and duty of the judicial department to say what the
law is." Marbury v. Madison., 1 Cranch 137, 177 (1803).
---
Justice Souter, with
whom Justice Breyer joins and with whom Justice Stevens and Justice Ginsburg
join with regard to all but Part C,
dissenting.
The Court should not have reviewed
either Bush v. Palm Beach County Canvassing Bd., ante, p.------ (per curiam), or
this case, and should not have stopped Florida's attempt to recount all
undervote ballots, see ante at------, by issuing a stay of the Florida Supreme
Court's orders during the period of this review, see Bush v. Gore, post
at-------- (slip op., at 1). If this Court had allowed the State to follow the
course indicated by the opinions of its own Supreme Court, it is entirely
possible that there would ultimately have been no issue requiring our review,
and political tension could have worked itself out in the Congress following the
procedure provided in 3 U. S. C. Sec. 15. The case being before us, however, its
resolution by the majority is another erroneous
decision.
As will be clear, I am in substantial
agreement with the dissenting opinions of Justice Stevens, Justice Ginsburg and
Justice Breyer. I write separately only to say how straightforward the issues
before us really are.
There are three issues:
whether the State Supreme Court's interpretation of the statute providing for a
contest of the state election results somehow violates 3 U. S. C. Sec. 5;
whether that court's construction of the state statutory provisions governing
contests impermissibly changes a state law from what the State's legislature has
provided, in violation of Article II, Sec. 1, cl. 2, of the national
Constitution; and whether the manner of interpreting markings on disputed
ballots failing to cause machines to register votes for President (the undervote
ballots) violates the equal protection or due process guaranteed by the
Fourteenth Amendment. None of these issues is difficult to describe or to
resolve.
A
The 3 U. S. C.
Sec. 5 issue is not serious. That provision sets certain conditions for treating
a State's certification of Presidential electors as conclusive in the event that
a dispute over recognizing those electors must be resolved in the Congress under
3 U. S. C. Sec. 15. Conclusiveness requires selection under a legal scheme in
place before the election, with results determined at least six days before the
date set for casting electoral votes. But no State is required to conform to
Sec. 5 if it cannot do that (for whatever reason); the sanction for failing to
satisfy the conditions of Sec. 5 is simply loss of what has been called its
"safe harbor." And even that determination is to be made, if made anywhere, in
the Congress.
B
The second matter
here goes to the State Supreme Court's interpretation of certain terms in the
state statute governing election "contests," Fla. Stat. Sec. 102.168 (2000);
there is no question here about the state court's interpretation of the related
provisions dealing with the antecedent process of "protesting" particular vote
counts, Sec. 102.166, which was involved in the previous case, Bush v. Palm
Beach County Canvassing Board. The issue is whether the judgment of the state
supreme court has displaced the state legislature's provisions for election
contests: is the law as declared by the court different from the provisions made
by the legislature, to which the national Constitution commits responsibility
for determining how each State's Presidential electors are chosen? See U. S.
Const., Art. II, Sec. 1, cl. 2. Bush does not, of course, claim that any
judicial act interpreting a statute of uncertain meaning is enough to displace
the legislative provision and violate Article II; statutes require
interpretation, which does not without more affect the legislative character of
a statute within the meaning of the Constitution. Brief for Petitioners 48, n.
22, in Bush v. Palm Beach County Canvassing Bd., et al., 531 U. S.------ (2000).
What Bush does argue, as I understand the contention, is that the interpretation
of Sec. 102.168 was so unreasonable as to transcend the accepted bounds of
statutory interpretation, to the point of being a nonjudicial act and producing
new law untethered to the legislative act in
question.
The starting point for evaluating the
claim that the Florida Supreme Court's interpretation effectively re-wrote Sec.
102.168 must be the language of the provision on which Gore relies to show his
right to raise this contest: that the previously certified result in Bush's
favor was produced by "rejection of a number of legal votes sufficient to change
or place in doubt the result of the election." Fla. Stat. Sec. 102.168(3)(c)
(2000). None of the state court's interpretations is unreasonable to the point
of displacing the legislative enactment quoted. As I will note below, other
interpretations were of course possible, and some might have been better than
those adopted by the Florida court's majority; the two dissents from the
majority opinion of that court and various briefs submitted to us set out
alternatives. But the majority view is in each instance within the bounds of
reasonable interpretation, and the law as declared is consistent with Article
II.
1. The statute does not define a "legal
vote," the rejection of which may affect the election. The State Supreme Court
was therefore required to define it, and in doing that the court looked to
another election statute, Sec. 101.5614(5), dealing with damaged or defective
ballots, which contains a provision that no vote shall be disregarded "if there
is a clear indication of the intent of the voter as determined by a canvassing
board." The court read that objective of looking to the voter's intent as
indicating that the legislature probably meant "legal vote" to mean a vote
recorded on a ballot indicating what the voter intended. Gore v. Harris,---- So.
2d---- (slip op., at 23-25) (Dec. 8, 2000). It is perfectly true that the
majority might have chosen a different reading. See, e.g., Brief for Respondent
Harris et al. 10 (defining "legal votes" as "votes properly executed in
accordance with the instructions provided to all registered voters in advance of
the election and in the polling places"). But even so, there is no
constitutional violation in following the majority view; Article II is
unconcerned with mere disagreements about interpretive
merits.
I respectfully
dissent.------
2. The Florida court next
interpreted "rejection" to determine what act in the counting process may be
attacked in a contest. Again, the statute does not define the term. The court
majority read the word to mean simply a failure to count.-------- So. 2d,
at------ (slip op., at 26-27). That reading is certainly within the bounds of
common sense, given the objective to give effect to a voter's intent if that can
be determined. A different reading, of course, is possible. The majority might
have concluded that "rejection" should refer to machine malfunction, or that a
ballot should not be treated as "reject(ed)" in the absence of wrongdoing by
election officials, lest contests be so easy to claim that every election will
end up in one. Cf. id., at-------- (slip op., at 48) (Wells, C. J., dissenting).
There is, however, nothing nonjudicial in the Florida majority's more hospitable
reading.
3. The same is true about the court
majority's understanding of the phrase "votes sufficient to change or place in
doubt" the result of the election in Florida. The court held that if the
uncounted ballots were so numerous that it was reasonably possible that they
contained enough "legal" votes to swing the election, this contest would be
authorized by the statute.(Footnote 1) While the majority might have thought (as
the trial judge did) that a probability, not a possibility, should be necessary
to justify a contest, that reading is not required by the statute's text, which
says nothing about probability. Whatever people of good will and good sense may
argue about the merits of the Florida court's reading, there is no warrant for
saying that it transcends the limits of reasonable statutory interpretation to
the point of supplanting the statute enacted by the "legislature" within the
meaning of Article II.
In sum, the
interpretations by the Florida court raise no substantial question under Article
II. That court engaged in permissible construction in determining that Gore had
instituted a contest authorized by the state statute, and it proceeded to direct
the trial judge to deal with that contest in the exercise of the discretionary
powers generously conferred by Fla. Stat. Sec. 102.168(8) (2000), to "fashion
such orders as he or she deems necessary to ensure that each allegation in the
complaint is investigated, examined, or checked, to prevent or correct any
alleged wrong, and to provide any relief appropriate under such circumstances."
As Justice Ginsburg has persuasively explained in her own dissenting opinion,
our customary respect for state interpretations of state law counsels against
rejection of the Florida court's determinations in this case.
C
It is only on the
third issue before us that there is a meritorious argument for relief, as this
Court's Per Curiam opinion recognizes. It is an issue that might well have been
dealt with adequately by the Florida courts if the state proceedings had not
been interrupted, and if not disposed of at the state level it could have been
considered by the Congress in any electoral vote dispute. But because the course
of state proceedings has been interrupted, time is short, and the issue is
before us, I think it sensible for the Court to address
it.
Petitioners have raised an equal protection
claim (or, alternatively, a due process claim, see generally Logan v. Zimmerman
Brush Co., 455 U. S. 422 (1982)), in the charge that unjustifiably disparate
standards are applied in different electoral jurisdictions to otherwise
identical facts. It is true that the Equal Protection Clause does not forbid the
use of a variety of voting mechanisms within a jurisdiction, even though
different mechanisms will have different levels of effectiveness in recording
voters' intentions; local variety can be justified by concerns about cost, the
potential value of innovation, and so on. But evidence in the record here
suggests that a different order of disparity obtains under rules for determining
a voter's intent that have been applied (and could continue to be applied) to
identical types of ballots used in identical brands of machines and exhibiting
identical physical characteristics (such as "hanging" or "dimpled" chads). See,
e.g., Tr., at 238-242 (Dec. 2-3, 2000) (testimony of Palm Beach County
Canvassing Board Chairman Judge Charles Burton describing varying standards
applied to imperfectly punched ballots in Palm Beach County during
precertification manual recount); id., at 497-500 (similarly describing varying
standards applied in Miami-Dade County); Tr. of Hearing 8-10 (Dec. 8, 2000)
(soliciting from county canvassing boards proposed protocols for determining
voters' intent but declining to provide a precise, uniform standard). I can
conceive of no legitimate state interest served by these differing treatments of
the expressions of voters' fundamental rights. The differences appear wholly
arbitrary.
In deciding what to do about this,
we should take account of the fact that electoral votes are due to be cast in
six days. I would therefore remand the case to the courts of Florida with
instructions to establish uniform standards for evaluating the several types of
ballots that have prompted differing treatments, to be applied within and among
counties when passing on such identical ballots in any further recounting (or
successive recounting) that the courts might
order.
Unlike the majority, I see no warrant
for this Court to assume that Florida could not possibly comply with this
requirement before the date set for the meeting of electors, December 18.
Although one of the dissenting justices of the State Supreme Court estimated
that disparate standards potentially affected 170,000 votes, Gore v. Harris,
supra,------ So. 2d, at------ (slip op., at 66), the number at issue is
significantly smaller. The 170,000 figure apparently represents all uncounted
votes, both undervotes (those for which no Presidential choice was recorded by a
machine) and overvotes (those rejected because of votes for more than one
candidate). Tr. of Oral Arg. 61-62. But as Justice Breyer has pointed out, no
showing has been made of legal overvotes uncounted, and counsel for Gore made an
uncontradicted representation to the Court that the statewide total of
undervotes is about 60,000. Id., at 62. To recount these manually would be a
tall order, but before this Court stayed the effort to do that the courts of
Florida were ready to do their best to get that job done. There is no
justification for denying the State the opportunity to try to count all disputed
ballots now.
When the Florida court ruled, the
totals for Bush and Gore were then less than 1,000 votes apart. One dissent
pegged the number of uncounted votes in question at 170,000. Gore v. Harris,
supra,---- So. 2d---- , (slip op., at 66) (opinion of Harding, J.). Gore's
counsel represented to us that the relevant figure is approximately 60,000, Tr.
of Oral Arg. 62, the number of ballots in which no vote for President was
recorded by the machines.
---
Justice Ginsburg, with
whom Justice Stevens joins, and with whom Justice Souter and Justice Breyer join
as to Part I, dissenting.
I
The Chief Justice
acknowledges that provisions of Florida's Election Code "may well admit of more
than one interpretation." Ante, at 3. But instead of respecting the state high
court's province to say what the State's Election Code means, The Chief Justice
maintains that Florida's Supreme Court has veered so far from the ordinary
practice of judicial review that what it did cannot properly be called judging.
My colleagues have offered a reasonable construction of Florida's law. Their
construction coincides with the view of one of Florida's seven Supreme Court
justices. Gore v. Harris,---- So. 2d----,---- (Fla. 2000) (slip op., at 45-55)
(Wells, C. J., dissenting); Palm Beach County Canvassing Bd. v. Harris,---- So.
2d----,---- (Fla. 2000) (slip op., at 34) (on remand) (confirming, 6-1, the
construction of Florida law advanced in Gore). I might join The Chief Justice
were it my commission to interpret Florida law. But disagreement with the
Florida court's interpretation of its own State's law does not warrant the
conclusion that the justices of that court have legislated. There is no cause
here to believe that the members of Florida's high court have done less than
"their mortal best to discharge their oath of office," Sumner v. Mata, 449 U. S.
539, 549 (1981), and no cause to upset their reasoned interpretation of Florida
law.
This Court more than occasionally affirms
statutory, and even constitutional, interpretations with which it disagrees. For
example, when reviewing challenges to administrative agencies' interpretations
of laws they implement, we defer to the agencies unless their interpretation
violates "the unambiguously expressed intent of Congress." Chevron U. S. A. Inc.
v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843 (1984). We do so
in the face of the declaration in Article I of the United States Constitution
that "All legislative Powers herein granted shall be vested in a Congress of the
United States." Surely the Constitution does not call upon us to pay more
respect to a federal administrative agency's construction of federal law than to
a state high court's interpretation of its own state's law. And not uncommonly,
we let stand state-court interpretations of federal law with which we might
disagree. Notably, in the habeas context, the Court adheres to the view that
"there is 'no intrinsic reason why the fact that a man is a federal judge should
make him more competent, or conscientious, or learned with respect to (federal
law) than his neighbor in the state courthouse.' " Stone v. Powell, 428 U. S.
465, 494, n. 35 (1976) (quoting Bator, Finality in Criminal Law and Federal
Habeas Corpus For State Prisoners, 76 Harv. L. Rev. 441, 509 (1963)); see O'Dell
v. Netherland, 521 U. S. 151, 156 (1997) ("(T)he Teague doctrine validates
reasonable, good-faith interpretations of existing precedents made by state
courts even though they are shown to be contrary to later decisions.") (citing
Butler v. McKellar, 494 U. S. 407, 414 (1990)); O'Connor, Trends in the
Relationship Between the Federal and State Courts from the Perspective of a
State Court Judge, 22 Wm. & Mary L. Rev. 801, 813 (1981) ("There is no
reason to assume that state court judges cannot and will not provide a
'hospitable forum' in litigating federal constitutional
questions.").
No doubt there are cases in which
the proper application of federal law may hinge on interpretations of state law.
Unavoidably, this Court must sometimes examine state law in order to protect
federal rights. But we have dealt with such cases ever mindful of the full
measure of respect we owe to interpretations of state law by a State's highest
court. In the Contract Clause case, General Motors Corp. v. Romein, 503 U. S.
181 (1992), for example, we said that although "ultimately we are bound to
decide for ourselves whether a contract was made," the Court "accord(s)
respectful consideration and great weight to the views of the State's highest
court." Id., at 187 (citation omitted). And in Central Union Telephone Co. v.
Edwardsville, 269 U. S. 190 (1925), we upheld the Illinois Supreme Court's
interpretation of a state waiver rule, even though that interpretation resulted
in the forfeiture of federal constitutional rights. Refusing to supplant
Illinois law with a federal definition of waiver, we explained that the state
court's declaration "should bind us unless so unfair or unreasonable in its
application to those asserting a federal right as to obstruct it." Id., at
195.(Footnote 1)
In deferring to state courts
on matters of state law, we appropriately recognize that this Court acts as an
"'outside(r)' lacking the common exposure to local law which comes from sitting
in the jurisdiction." Lehman Brothers v. Schein, 416 U. S. 386, 391 (1974). That
recognition has sometimes prompted us to resolve doubts about the meaning of
state law by certifying issues to a State's highest court, even when federal
rights are at stake. Cf. Arizonans for Official English v. Arizona, 520 U. S.
43, 79 (1997) ("Warnings against premature adjudication of constitutional
questions bear heightened attention when a federal court is asked to invalidate
a State's law, for the federal tribunal risks friction-generating error when it
endeavors to construe a novel state Act not yet reviewed by the State's highest
court."). Notwithstanding our authority to decide issues of state law underlying
federal claims, we have used the certification devise to afford state high
courts an opportunity to inform us on matters of their own State's law because
such restraint "helps build a cooperative judicial federalism." Lehman Brothers,
416 U. S., at 391.
Just last Term, in Fiore v.
White, 528 U. S. 23 (1999), we took advantage of Pennsylvania's certification
procedure. In that case, a state prisoner brought a federal habeas action
claiming that the State had failed to prove an essential element of his charged
offense in violation of the Due Process Clause. Id., at 25-26. Instead of
resolving the state-law question on which the federal claim depended, we
certified the question to the Pennsylvania Supreme Court for that court to "help
determine the proper state-law predicate for our determination of the federal
constitutional questions raised." Id., at 29; id., at 28 (asking the
Pennsylvania Supreme Court whether its recent interpretation of the statute
under which Fiore was convicted "was always the statute's meaning, even at the
time of Fiore's trial"). The Chief Justice's willingness to reverse the Florida
Supreme Court's interpretation of Florida law in this case is at least in
tension with our reluctance in Fiore even to interpret Pennsylvania law before
seeking instruction from the Pennsylvania Supreme Court. I would have thought
the "cautious approach" we counsel when federal courts address matters of state
law, Arizonans, 520 U. S., at 77, and our commitment to "build(ing) cooperative
judicial federalism," Lehman Brothers, 416 U. S., at 391, demanded greater
restraint.
Rarely has this Court rejected
outright an interpretation of state law by a state high court. Fairfax's Devisee
v. Hunter's Lessee, 7 Cranch 603 (1813), NAACP v. Alabama ex rel. Patterson, 357
U. S. 449 (1958), and Bouie v. City of Columbia, 378 U. S. 347 (1964), cited by
The Chief Justice, are three such rare instances. See ante, at 4, 5, and n. 2.
But those cases are embedded in historical contexts hardly comparable to the
situation here. Fairfax's Devisee, which held that the Virginia Court of Appeals
had misconstrued its own forfeiture laws to deprive a British subject of lands
secured to him by federal treaties, occurred amidst vociferous States' rights
attacks on the Marshall Court. G. Gunther & K. Sullivan, Constitutional Law
61-62 (13th ed. 1997). The Virginia court refused to obey this Court's Fairfax's
Devisee mandate to enter judgment for the British subject's successor in
interest. That refusal led to the Court's pathmarking decision in Martin v.
Hunter's Lessee, 1 Wheat. 304 (1816). Patterson, a case decided three months
after Cooper v. Aaron, 358 U. S. 1 (1958), in the face of Southern resistance to
the civil rights movement, held that the Alabama Supreme Court had irregularly
applied its own procedural rules to deny review of a contempt order against the
NAACP arising from its refusal to disclose membership lists. We said that "our
jurisdiction is not defeated if the nonfederal ground relied on by the state
court is without any fair or substantial support." 357 U. S., at 455. Bouie,
stemming from a lunch counter "sit-in" at the height of the civil rights
movement, held that the South Carolina Supreme Court's construction of its
trespass laws--criminalizing conduct not covered by the text of an otherwise
clear statute--was "unforeseeable" and thus violated due process when applied
retroactively to the petitioners. 378 U. S., at 350,
354.
The Chief Justice's casual citation of
these cases might lead one to believe they are part of a larger collection of
cases in which we said that the Constitution impelled us to train a skeptical
eye on a state court's portrayal of state law. But one would be hard pressed, I
think, to find additional cases that fit the mold. As Justice Breyer
convincingly explains, see post, at 5-9 (dissenting opinion), this case involves
nothing close to the kind of recalcitrance by a state high court that warrants
extraordinary action by this Court. The Florida Supreme Court concluded that
counting every legal vote was the overriding concern of the Florida Legislature
when it enacted the State's Election Code. The court surely should not be
bracketed with state high courts of the Jim Crow
South.
The Chief Justice says that Article II,
by providing that state legislatures shall direct the manner of appointing
electors, authorizes federal superintendence over the relationship between state
courts and state legislatures, and licenses a departure from the usual deference
we give to state court interpretations of state law. Ante, at 5 ("To attach
definitive weight to the pronouncement of a state court, when the very question
at issue is whether the court has actually departed from the statutory meaning,
would be to abdicate our responsibility to enforce the explicit requirements of
Article II."). The Framers of our Constitution, however, understood that in a
republican government, the judiciary would construe the legislature's
enactments. See U. S. Const., Art. III; The Federalist No. 78 (A. Hamilton). In
light of the constitutional guarantee to States of a "Republican Form of
Government," U. S. Const., Art. IV, Sec. 4, Article II can hardly be read to
invite this Court to disrupt a State's republican regime. Yet The Chief Justice
today would reach out to do just that. By holding that Article II requires our
revision of a state court's construction of state laws in order to protect one
organ of the State from another, The Chief Justice contradicts the basic
principle that a State may organize itself as it sees fit. See, e.g., Gregory v.
Ashcroft, 501 U. S. 452, 460 (1991) ("Through the structure of its government,
and the character of those who exercise government authority, a State defines
itself as a sovereign."); Highland Farms Dairy, Inc. v. Agnew, 300 U. S. 608,
612 (1937) ("How power shall be distributed by a state among its governmental
organs is commonly, if not always, a question for the state itself.").(Footnote
2) Article II does not call for the scrutiny undertaken by this
Court.
The extraordinary setting of this case
has obscured the ordinary principle that dictates its proper resolution: Federal
courts defer to state high courts' interpretations of their state's own law.
This principle reflects the core of federalism, on which all agree. "The Framers
split the atom of sovereignty. It was the genius of their idea that our citizens
would have two political capacities, one state and one federal, each protected
from incursion by the other." Saenz v. Roe, 526 U. S. 489, 504, n. 17 (1999)
(citing U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 838 (1995) (Kennedy,
J., concurring)). The Chief Justice's solicitude for the Florida Legislature
comes at the expense of the more fundamental solicitude we owe to the
legislature's sovereign. U. S. Const., Art. II, Sec. 1, cl. 2 ("Each State shall
appoint, in such Manner as the Legislature thereof may direct," the electors for
President and Vice President) (emphasis added); ante, at 1-2 (Stevens, J.,
dissenting).(Footnote 3) Were the other members of this Court as mindful as they
generally are of our system of dual sovereignty, they would affirm the judgment
of the Florida Supreme Court.
II
I agree with
Justice Stevens that petitioners have not presented a substantial equal
protection claim. Ideally, perfection would be the appropriate standard for
judging the recount. But we live in an imperfect world, one in which thousands
of votes have not been counted. I cannot agree that the recount adopted by the
Florida court, flawed as it may be, would yield a result any less fair or
precise than the certification that preceded that recount. See, e.g., McDonald
v. Board of Election Comm'rs of Chicago, 394 U.S. 802, 807 (1969) (even in the
context of the right to vote, the state is permitted to reform " 'one step at a
time' ") (quoting Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 489
(1955)).
Even if there were an equal protection
violation, I would agree with Justice Stevens, Justice Souter, and Justice
Breyer that the Court's concern about "the December 12 deadline," ante, at 12,
is misplaced. Time is short in part because of the Court's entry of a stay on
December 9, several hours after an able circuit judge in Leon County had begun
to superintend the recount process. More fundamentally, the Court's reluctance
to let the recount go forward--despite its suggestion that "(t)he search for
intent can be confined by specific rules designed to ensure uniform treatment,"
ante, at 8--ultimately turns on its own judgment about the practical realities
of implementing a recount, not the judgment of those much closer to the
process.
Equally important, as Justice Breyer
explains, post, at 12 (dissenting opinion), the December 12 "deadline" for
bringing Florida's electoral votes into 3 U. S. C. Sec. 5's safe harbor lacks
the significance the Court assigns it. Were that date to pass, Florida would
still be entitled to deliver electoral votes Congress must count unless both
Houses find that the votes "ha(d) not been ...regularly given." 3 U. S. C. Sec.
15. The statute identifies other significant dates. See, e.g., Sec. 7
(specifying December 18 as the date electors "shall meet and give their votes");
Sec. 12 (specifying "the fourth Wednesday in December"--this year, December
27--as the date on which Congress, if it has not received a State's electoral
votes, shall request the state secretary of state to send a certified return
immediately). But none of these dates has ultimate significance in light of
Congress' detailed provisions for determining, on "the sixth day of January,"
the validity of electoral votes. Sec. 15.
The
Court assumes that time will not permit "orderly judicial review of any disputed
matters that might arise." Ante, at 12. But no one has doubted the good faith
and diligence with which Florida election officials, attorneys for all sides of
this controversy, and the courts of law have performed their duties. Notably,
the Florida Supreme Court has produced two substantial opinions within 29 hours
of oral argument. In sum, the Court's conclusion that a constitutionally
adequate recount is impractical is a prophecy the Court's own judgment will not
allow to be tested. Such an untested prophecy should not decide the Presidency
of the United States.
I
dissent.------
See also Lucas v. South
Carolina Coastal Council, 505 U. S. 1003, 1032, n. 18 (1992) (South Carolina
could defend a regulatory taking "if an objectively reasonable application of
relevant precedents (by its courts) would exclude ...beneficial uses in the
circumstances in which the land is presently found"); Bishop v. Wood, 426 U. S.
341, 344-345 (1976) (deciding whether North Carolina had created a property
interest cognizable under the Due Process Clause by reference to state law as
interpreted by the North Carolina Supreme Court). Similarly, in Gurley v.
Rhoden, 421 U. S. 200 (1975), a gasoline retailer claimed that due process
entitled him to deduct a state gasoline excise tax in computing the amount of
his sales subject to a state sales tax, on the grounds that the legal incidence
of the excise tax fell on his customers and that he acted merely as a collector
of the tax. The Mississippi Supreme Court held that the legal incidence of the
excise tax fell on petitioner. Observing that "a State's highest court is the
final judicial arbiter of the meaning of state statutes," we said that "(w)hen a
state court has made its own definitive determination as to the operating
incidence, ...(w)e give this finding great weight in determining the natural
effect of a statute, and if it is consistent with the statute's reasonable
interpretation it will be deemed conclusive." Id., at 208. (Footnote
2)
Even in the rare case in which a State's
"manner" of making and construing laws might implicate a structural constraint,
Congress, not this Court, is likely the proper governmental entity to enforce
that constraint. See U. S. Const., amend. XII; 3 U. S. C. Sec. Sec. 1-15; cf.
Ohio ex rel. Davis v. Hildebrant, 241 U. S. 565, 569 (1916) (treating as a
nonjusticiable political question whether use of a referendum to override a
congressional districting plan enacted by the state legislature violates Art. I,
Sec. 4); Luther v. Borden, 7 How. 1, 42 (1849). (Footnote
3)
"(B)ecause the Framers recognized that state
power and identity were essential parts of the federal balance, see The
Federalist No. 39, the Constitution is solicitous of the prerogatives of the
States, even in an otherwise sovereign federal province. The Constitution
...grants States certain powers over the times, places, and manner of federal
elections (subject to congressional revision), Art. I, Sec. 4, cl. 1 ... , and
allows States to appoint electors for the President, Art. II, Sec. 1, cl. 2." U.
S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 841-842 (1995) (Kennedy, J.,
concurring).
---
Justice Breyer, with
whom Justice Stevens and Justice Ginsburg join except as to Part I-A-1, and with
whom Justice Souter joins as to Part I,
dissenting.
The Court was wrong to take this
case. It was wrong to grant a stay. It should now vacate that stay and permit
the Florida Supreme Court to decide whether the recount should resume.
I
The political
implications of this case for the country are momentous. But the federal legal
questions presented, with one exception, are insubstantial.
A
1
The majority
raises three Equal Protection problems with the Florida Supreme Court's recount
order: first, the failure to include overvotes in the manual recount; second,
the fact that all ballots, rather than simply the undervotes, were recounted in
some, but not all, counties; and third, the absence of a uniform, specific
standard to guide the recounts. As far as the first issue is concerned,
petitioners presented no evidence, to this Court or to any Florida court, that a
manual recount of overvotes would identify additional legal votes. The same is
true of the second, and, in addition, the majority's reasoning would seem to
invalidate any state provision for a manual recount of individual counties in a
statewide election.
The majority's third
concern does implicate principles of fundamental fairness. The majority
concludes that the Equal Protection Clause requires that a manual recount be
governed not only by the uniform general standard of the "clear intent of the
voter," but also by uniform subsidiary standards (for example, a uniform
determination whether indented, but not perforated, "undervotes" should count).
The opinion points out that the Florida Supreme Court ordered the inclusion of
Broward County's undercounted "legal votes" even though those votes included
ballots that were not perforated but simply "dimpled," while newly recounted
ballots from other counties will likely include only votes determined to be
"legal" on the basis of a stricter standard. In light of our previous remand,
the Florida Supreme Court may have been reluctant to adopt a more specific
standard than that provided for by the legislature for fear of exceeding its
authority under Article II. However, since the use of different standards could
favor one or the other of the candidates, since time was, and is, too short to
permit the lower courts to iron out significant differences through ordinary
judicial review, and since the relevant distinction was embodied in the order of
the State's highest court, I agree that, in these very special circumstances,
basic principles of fairness may well have counseled the adoption of a uniform
standard to address the problem. In light of the majority's disposition, I need
not decide whether, or the extent to which, as a remedial matter, the
Constitution would place limits upon the content of the uniform standard.
2
Nonetheless, there
is no justification for the majority's remedy, which is simply to reverse the
lower court and halt the recount entirely. An appropriate remedy would be,
instead, to remand this case with instructions that, even at this late date,
would permit the Florida Supreme Court to require recounting all undercounted
votes in Florida, including those from Broward, Volusia, Palm Beach, and
Miami-Dade Counties, whether or not previously recounted prior to the end of the
protest period, and to do so in accordance with a single-uniform
substandard.
The majority justifies stopping
the recount entirely on the ground that there is no more time. In particular,
the majority relies on the lack of time for the Secretary to review and approve
equipment needed to separate undervotes. But the majority reaches this
conclusion in the absence of any record evidence that the recount could not have
been completed in the time allowed by the Florida Supreme Court. The majority
finds facts outside of the record on matters that state courts are in a far
better position to address. Of course, it is too late for any such recount to
take place by December 12, the date by which election disputes must be decided
if a State is to take advantage of the safe harbor provisions of 3 U. S. C. Sec.
5. Whether there is time to conduct a recount prior to December 18, when the
electors are scheduled to meet, is a matter for the state courts to determine.
And whether, under Florida law, Florida could or could not take further action
is obviously a matter for Florida courts, not this Court, to decide. See ante,
at 13 (per curiam).
By halting the manual
recount, and thus ensuring that the uncounted legal votes will not be counted
under any standard, this Court crafts a remedy out of proportion to the asserted
harm. And that remedy harms the very fairness interests the Court is attempting
to protect. The manual recount would itself redress a problem of unequal
treatment of ballots. As Justice Stevens points out, see ante, at 4 and n. 4
(Stevens, J., dissenting opinion), the ballots of voters in counties that use
punch-card systems are more likely to be disqualified than those in counties
using optical-scanning systems. According to recent news reports, variations in
the undervote rate are even more pronounced. See Fessenden, No-Vote Rates Higher
in Punch Card Count, N. Y. Times, Dec. 1, 2000, p. A29 (reporting that 0.3% of
ballots cast in 30 Florida counties using optical-scanning systems registered no
Presidential vote, in comparison to 1.53% in the 15 counties using Votomatic
punch card ballots). Thus, in a system that allows counties to use different
types of voting systems, voters already arrive at the polls with an unequal
chance that their votes will be counted. I do not see how the fact that this
results from counties' selection of different voting machines rather than a
court order makes the outcome any more fair. Nor do I understand why the Florida
Supreme Court's recount order, which helps to redress this inequity, must be
entirely prohibited based on a deficiency that could easily be remedied.
B
The remainder of
petitioners' claims, which are the focus of the Chief Justice's concurrence,
raise no significant federal questions. I cannot agree that the Chief Justice's
unusual review of state law in this case, see ante, at 5-8 (Ginsburg, J.,
dissenting opinion), is justified by reference either to Art. II, Sec. 1, or to
3 U. S. C. Sec. 5. Moreover, even were such review proper, the conclusion that
the Florida Supreme Court's decision contravenes federal law is
untenable.
While conceding that, in most cases,
"comity and respect for federalism compel us to defer to the decisions of state
courts on issues of state law," the concurrence relies on some combination of
Art. II, Sec. 1, and 3 U. S. C. Sec. 5 to justify the majority's conclusion that
this case is one of the few in which we may lay that fundamental principle
aside. Ante, at 2 (Opinion of Rehnquist, C. J. The concurrence's primary
foundation for this conclusion rests on an appeal to plain text: Art. II, Sec.
1's grant of the power to appoint Presidential electors to the State
"Legislature." Ibid. But neither the text of Article II itself nor the only case
the concurrence cites that interprets Article II, McPherson v. Blacker, 146 U.
S. 1 (1892), leads to the conclusion that Article II grants unlimited power to
the legislature, devoid of any state constitutional limitations, to select the
manner of appointing electors. See id., at 41 (specifically referring to state
constitutional provision in upholding state law regarding selection of
electors). Nor, as Justice Stevens points out, have we interpreted the Federal
constitutional provision most analogous to Art. II, Sec. 1--Art. I, Sec. 4--in
the strained manner put forth in the concurrence. Ante, at 1-2 and n. 1
(dissenting opinion).
The concurrence's
treatment of Sec. 5 as "inform(ing)" its interpretation of Article II, Sec. 1,
cl. 2, ante, at 3 (Rehnquist, C. J., concurring), is no more convincing. The
Chief Justice contends that our opinion in Bush v. Palm Beach County Canvassing
Bd., ante, p.--------, (per curiam) (Bush I), in which we stated that "a
legislative wish to take advantage of (Sec. 5) would counsel against" a
construction of Florida law that Congress might deem to be a change in law, id.,
(slip op. at 6), now means that this Court "must ensure that post-election state
court actions do not frustrate the legislative desire to attain the 'safe
harbor' provided by Sec. 5." Ante, at 3. However, Sec. 5 is part of the rules
that govern Congress' recognition of slates of electors. Nowhere in Bush I did
we establish that this Court had the authority to enforce Sec. 5. Nor did we
suggest that the permissive "counsel against" could be transformed into the
mandatory "must ensure." And nowhere did we intimate, as the concurrence does
here, that a state court decision that threatens the safe harbor provision of
Sec. 5 does so in violation of Article II. The concurrence's logic turns the
presumption that legislatures would wish to take advantage of
Sec.
5's "safe harbor" provision into a mandate
that trumps other statutory provisions and overrides the intent that the
legislature did express.
But, in any event, the
concurrence, having conducted its review, now reaches the wrong conclusion. It
says that "the Florida Supreme Court's interpretation of the Florida election
laws impermissibly distorted them beyond what a fair reading required, in
violation of Article II." Ante, at 4-5 (Rehnquist, C. J, concurring). But what
precisely is the distortion? Apparently, it has three elements. First, the
Florida court, in its earlier opinion, changed the election certification date
from November 14 to November 26. Second, the Florida court ordered a manual
recount of "undercounted" ballots that could not have been fully completed by
the December 12 "safe harbor" deadline. Third, the Florida court, in the opinion
now under review, failed to give adequate deference to the determinations of
canvassing boards and the Secretary.
To
characterize the first element as a "distortion," however, requires the
concurrence to second-guess the way in which the state court resolved a plain
conflict in the language of different statutes. Compare Fla. Stat. Sec. 102.166
(2001) (foreseeing manual recounts during the protest period) with Sec. 102.111
(setting what is arguably too short a deadline for manual recounts to be
conducted); compare Sec. 102.112(1) (stating that the Secretary "may" ignore
late returns) with Sec. 102.111(1) (stating that the Secretary "shall" ignore
late returns). In any event, that issue no longer has any practical importance
and cannot justify the reversal of the different Florida court decision before
us now.
To characterize the second element as a
"distortion" requires the concurrence to overlook the fact that the inability of
the Florida courts to conduct the recount on time is, in significant part, a
problem of the Court's own making. The Florida Supreme Court thought that the
recount could be completed on time, and, within hours, the Florida Circuit Court
was moving in an orderly fashion to meet the deadline. This Court improvidently
entered a stay. As a result, we will never know whether the recount could have
been completed.
Nor can one characterize the
third element as "impermissibl(e) distort(ing)" once one understands that there
are two sides to the opinion's argument that the Florida Supreme Court
"virtually eliminated the Secretary's discretion." Ante, at 9 (Rehnquist, C. J,
concurring). The Florida statute in question was amended in 1999 to provide that
the "grounds for contesting an election" include the "rejection of a number of
legal votes sufficient to ...place in doubt the result of the election." Fla.
Stat. Sec. Sec. 102.168(3), (3)(c) (2000). And the parties have argued about the
proper meaning of the statute's term "legal vote." The Secretary has claimed
that a "legal vote" is a vote "properly executed in accordance with the
instructions provided to all registered voters." Brief for Respondent Harris et
al. 10. On that interpretation, punchcard ballots for which the machines cannot
register a vote are not "legal" votes. Id., at 14. The Florida Supreme Court did
not accept her definition. But it had a reason. Its reason was that a different
provision of Florida election laws (a provision that addresses damaged or
defective ballots) says that no vote shall be disregarded "if there is a clear
indication of the intent of the voter as determined by the canvassing board"
(adding that ballots should not be counted "if it is impossible to determine the
elector's choice"). Fla. Stat. Sec. 101.5614(5) (2000). Given this statutory
language, certain roughly analogous judicial precedent, e.g., Darby v. State ex
rel. McCollough, 75 So. 411 (Fla. 1917) (per curiam), and somewhat similar
determinations by courts throughout the Nation, see cases cited infra, at 9, the
Florida Supreme Court concluded that the term "legal vote" means a vote recorded
on a ballot that clearly reflects what the voter intended. Gore v. Harris,------
So. 2d------,------ (2000) (slip op., at 19). That conclusion differs from the
conclusion of the Secretary. But nothing in Florida law requires the Florida
Supreme Court to accept as determinative the Secretary's view on such a matter.
Nor can one say that the Court's ultimate determination is so unreasonable as to
amount to a constitutionally "impermissible distort(ion)" of Florida
law.
The Florida Supreme Court, applying this
definition, decided, on the basis of the record, that respondents had shown that
the ballots undercounted by the voting machines contained enough "legal votes"
to place "the results" of the election "in doubt." Since only a few hundred
votes separated the candidates, and since the "undercounted" ballots numbered
tens of thousands, it is difficult to see how anyone could find this conclusion
unreasonable-however strict the standard used to measure the voter's "clear
intent." Nor did this conclusion "strip" canvassing boards of their discretion.
The boards retain their traditional discretionary authority during the protest
period. And during the contest period, as the court stated, "the Canvassing
Board's actions (during the protest period) may constitute evidence that a
ballot does or does not qualify as a legal vote." Id., at ..13. Whether a local
county canvassing board's discretionary judgment during the protest period not
to conduct a manual recount will be set aside during a contest period depends
upon whether a candidate provides additional evidence that the rejected votes
contain enough "legal votes" to place the outcome of the race in doubt. To limit
the local canvassing board's discretion in this way is not to eliminate that
discretion. At the least, one could reasonably so
believe.
The statute goes on to provide the
Florida circuit judge with authority to "fashion such orders as he or she deems
necessary to ensure that each allegation . . . is investigated, examined, or
checked, . . . and to provide any relief appropriate." Fla. Stat. Sec.
102.168(8) (2000) (emphasis added). The Florida Supreme Court did just that. One
might reasonably disagree with the Florida Supreme Court's interpretation of
these, or other, words in the statute. But I do not see how one could call its
plain language interpretation of a 1999 statutory change so misguided as no
longer to qualify as judicial interpretation or as a usurpation of the authority
of the State legislature. Indeed, other state courts have interpreted roughly
similar state statutes in similar ways. See, e.g., In re Election of U. S.
Representative for Second Congressional Dist., 231 Conn. 602, 621, 653 A. 2d 79,
90-91 (1994) ("Whatever the process used to vote and to count votes, differences
in technology should not furnish a basis for disregarding the bedrock principle
that the purpose of the voting process is to ascertain the intent of the
voters"); Brown v. Carr, 130 W. Va. 401, 460, 43 S. E.2d 401, 404-405 (1947)
("(W)hether a ballot shall be counted . . . depends on the intent of the voter .
. . . Courts decry any resort to technical rules in reaching a conclusion as to
the intent of the voter").
I repeat, where is
the "impermissible" distortion?
II
Despite the
reminder that this case involves "an election for the President of the United
States," ante, at 1 (Rehnquist, C. J., concurring), no preeminent legal concern,
or practical concern related to legal questions, required this Court to hear
this case, let alone to issue a stay that stopped Florida's recount process in
its tracks. With one exception, petitioners' claims do not ask us to vindicate a
constitutional provision designed to protect a basic human right. See, e.g.,
Brown v. Board of Education, 347 U. S. 483 (1954). Petitioners invoke
fundamental fairness, namely, the need for procedural fairness, including
finality. But with the one "equal protection" exception, they rely upon law that
focuses, not upon that basic need, but upon the constitutional allocation of
power. Respondents invoke a competing fundamental consideration--the need to
determine the voter's true intent. But they look to state law, not to federal
constitutional law, to protect that interest. Neither side claims electoral
fraud, dishonesty, or the like. And the more fundamental equal protection claim
might have been left to the state court to resolve if and when it was discovered
to have mattered. It could still be resolved through a remand conditioned upon
issuance of a uniform standard; it does not require reversing the Florida
Supreme Court.
Of course, the selection of the
President is of fundamental national importance. But that importance is
political, not legal. And this Court should resist the temptation unnecessarily
to resolve tangential legal disputes, where doing so threatens to determine the
outcome of the election.
The Constitution and
federal statutes themselves make clear that restraint is appropriate. They set
forth a road map of how to resolve disputes about electors, even after an
election as close as this one. That road map foresees resolution of electoral
disputes by state courts. See 3 U. S. C. Sec. 5 (providing that, where a "State
shall have provided, by laws enacted prior to (election day), for its final
determination of any controversy or contest concerning the appointment of . . .
electors . . . by judicial or other methods," the subsequently chosen electors
enter a safe harbor free from congressional challenge). But it nowhere provides
for involvement by the United States Supreme
Court.
To the contrary, the Twelfth Amendment
commits to Congress the authority and responsibility to count electoral votes. A
federal statute, the Electoral Count Act, enacted after the close 1876
Hayes-Tilden Presidential election, specifies that, after States have tried to
resolve disputes (through "judicial" or other means), Congress is the body
primarily authorized to resolve remaining disputes. See Electoral Count Act of
1887, 24 Stat. 373, 3 U. S. C. Sec. Sec. 5, 6, and
15.
The legislative history of the Act makes
clear its intent to commit the power to resolve such disputes to Congress,
rather than the courts:
"The two Houses are, by
the Constitution, authorized to make the count of electoral votes. They can only
count legal votes, and in doing so must determine, from the best evidence to be
had, what are legal votes .... The power to determine rests with the two Houses,
and there is no other constitutional tribunal." H. Rep. No. 1638, 49th Cong.,
1st Sess., 2 (1886) (report submitted by Rep. Caldwell, Select Committee on the
Election of President and Vice-President).
The
Member of Congress who introduced the Act
added:
"The power to judge of the legality of
the votes is a necessary consequent of the power to count. The existence of this
power is of absolute necessity to the preservation of the Government. The
interests of all the States in their relations to each other in the Federal
Union demand that the ultimate tribunal to decide upon the election of President
should be a constituent body, in which the States in their federal relationships
and the people in their sovereign capacity should be represented." 18 Cong. Rec.
30 (1886).
"Under the Constitution who else
could decide? Who is nearer to the State in determining a question of vital
importance to the whole union of States than the constituent body upon whom the
Constitution has devolved the duty to count the vote?" Id., at
31.
The Act goes on to set out rules for the
congressional determination of disputes about those votes. If, for example, a
state submits a single slate of electors, Congress must count those votes unless
both Houses agree that the votes "have not been . . . regularly given." 3 U. S.
C. Sec. 15. If, as occurred in 1876, one or more states submits two sets of
electors, then Congress must determine whether a slate has entered the safe
harbor of Sec. 5, in which case its votes will have "conclusive" effect. Ibid.
If, as also occurred in 1876, there is controversy about "which of two or more
of such State authorities . . . is the lawful tribunal" authorized to appoint
electors, then each House shall determine separately which votes are "supported
by the decision of such State so authorized by its law." Ibid. If the two Houses
of Congress agree, the votes they have approved will be counted. If they
disagree, then "the votes of the electors whose appointment shall have been
certified by the executive of the State, under the seal thereof, shall be
counted." Ibid.
Given this detailed,
comprehensive scheme for counting electoral votes, there is no reason to believe
that federal law either foresees or requires resolution of such a political
issue by this Court. Nor, for that matter, is there any reason to that think the
Constitution's Framers would have reached a different conclusion. Madison, at
least, believed that allowing the judiciary to choose the presidential electors
"was out of the question." Madison, July 25, 1787 (reprinted in 5 Elliot's
Debates on the Federal Constitution 363 (2d ed.
1876)).
The decision by both the Constitution's
Framers and the 1886 Congress to minimize this Court's role in resolving close
federal presidential elections is as wise as it is clear. However awkward or
difficult it may be for Congress to resolve difficult electoral disputes,
Congress, being a political body, expresses the people's will far more
accurately than does an unelected Court. And the people's will is what elections
are about.
Moreover, Congress was fully aware
of the danger that would arise should it ask judges, unarmed with appropriate
legal standards, to resolve a hotly contested Presidential election contest.
Just after the 1876 Presidential election, Florida, South Carolina, and
Louisiana each sent two slates of electors to Washington. Without these States,
Tilden, the Democrat, had 184 electoral votes, one short of the number required
to win the Presidency. With those States, Hayes, his Republican opponent, would
have had 185. In order to choose between the two slates of electors, Congress
decided to appoint an electoral commission composed of five Senators, five
Representatives, and five Supreme Court Justices. Initially the Commission was
to be evenly divided between Republicans and Democrats, with Justice David
Davis, an Independent, to possess the decisive vote. However, when at the last
minute the Illinois Legislature elected Justice Davis to the United States
Senate, the final position on the Commission was filled by Supreme Court Justice
Joseph P. Bradley.
The Commission divided along
partisan lines, and the responsibility to cast the deciding vote fell to Justice
Bradley. He decided to accept the votes by the Republican electors, and thereby
awarded the Presidency to Hayes.
Justice
Bradley immediately became the subject of vociferous attacks. Bradley was
accused of accepting bribes, of being captured by railroad interests, and of an
eleventh-hour change in position after a night in which his house "was
surrounded by the carriages" of Republican partisans and railroad officials. C.
Woodward, Reunion and Reaction 159-160 (1966). Many years later, Professor
Bickel concluded that Bradley was honest and impartial. He thought that " 'the
great question' for Bradley was, in fact, whether Congress was entitled to go
behind election returns or had to accept them as certified by state
authorities," an "issue of principle." The Least Dangerous Branch 185 (1962).
Nonetheless, Bickel points out, the legal question upon which Justice Bradley's
decision turned was not very important in the contemporaneous political context.
He says that "in the circumstances the issue of principle was trivial, it was
overwhelmed by all that hung in the balance, and it should not have been
decisive." Ibid.
For present purposes, the
relevance of this history lies in the fact that the participation in the work of
the electoral commission by five Justices, including Justice Bradley, did not
lend that process legitimacy. Nor did it assure the public that the process had
worked fairly, guided by the law. Rather, it simply embroiled Members of the
Court in partisan conflict, thereby undermining respect for the judicial
process. And the Congress that later enacted the Electoral Count Act knew
it.
This history may help to explain why I
think it not only legally wrong, but also most unfortunate, for the Court simply
to have terminated the Florida recount. Those who caution judicial restraint in
resolving political disputes have described the quintessential case for that
restraint as a case marked, among other things, by the "strangeness of the
issue," its "intractability to principled resolution," its "sheer momentousness,
. . . which tends to unbalance judicial judgment," and "the inner vulnerability,
the self-doubt of an institution which is electorally irresponsible and has no
earth to draw strength from." Bickel, supra, at 184. Those characteristics mark
this case.
At the same time, as I have said,
the Court is not acting to vindicate a fundamental constitutional principle,
such as the need to protect a basic human liberty. No other strong reason to act
is present. Congressional statutes tend to obviate the need. And, above all, in
this highly politicized matter, the appearance of a split decision runs the risk
of undermining the public's confidence in the Court itself. That confidence is a
public treasure. It has been built slowly over many years, some of which were
marked by a Civil War and the tragedy of segregation. It is a vitally necessary
ingredient of any successful effort to protect basic liberty and, indeed, the
rule of law itself. We run no risk of returning to the days when a President
(responding to this Court's efforts to protect the Cherokee Indians) might have
said, "John Marshall has made his decision; now let him enforce it!" Loth, Chief
Justice John Marshall and The Growth of the American Republic 365 (1948). But we
do risk a self-inflicted wound--a wound that may harm not just the Court, but
the Nation.
I fear that in order to bring this
agonizingly long election process to a definitive conclusion, we have not
adequately attended to that necessary "check upon our own exercise of power,"
"our own sense of self-restraint." United States v. Butler, 297 U. S. 1, 79
(1936) (Stone, J., dissenting). Justice Brandeis once said of the Court, "The
most important thing we do is not doing." Bickel, supra, at 71. What it does
today, the Court should have left undone. I would repair the damage done as best
we now can, by permitting the Florida recount to continue under uniform
standards.
I respectfully
dissent.------