OCTOBER TERM, 2000
Syllabus
BUSH ET AL.
v. GORE ET AL.
CERTIORARI TO THE SUPREME COURT OF FLORIDA
No. 00-949. Argued December 11, 2000-Decided December
12,2000
On December 8, 2000, the Florida Supreme Court ordered,
inter
alia, that manual recounts of ballots for the recent
Presidential election were required in all Florida counties where
so-called "undervotes" had not been subject to manual tabulation,
and that the manual recounts should begin at once. Noting the
closeness of the election, the court explained that, on the record
before it, there could be no question that there were uncounted
"legal votes"-i.
e., those in which there was a clear
indication of the voter's intent-sufficient to place the results of
the election in doubt. Petitioners, the Republican candidates for
President and Vice President who had been certified as the winners
in Florida, filed an emergency application for a stay of this
mandate. On December 9, this Court granted the stay application,
treated it as a petition for a writ of certiorari, and granted
certiorari.
Held: Because it is evident that any recount seeking to
meet 3 U. S. C. § 5's December 12 "safe-harbor" date would be
unconstitutional under the Equal Protection Clause, the Florida
Supreme Court's judgment ordering manual recounts is reversed. The
Clause's requirements apply to the manner in which the voting
franchise is exercised. Having once granted the right to vote on
equal terms, Florida 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. The recount mechanisms implemented in response to the state
court's decision do not satisfy the minimum requirement for
nonarbitrary treatment of voters. The record shows that 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. In addition, the recounts in
three counties were not limited to so-called undervotes but
extended to all of the ballots. Furthermore, the actual process by
which the votes were to be counted raises further concerns because
the court's order did not specify who would recount the ballots.
Where, as here, 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. The State has not
shown that its procedures include the necessary safeguards. Upon
due consideration of the difficulties identified to this point, it
is obvious that the recount cannot be conducted in compliance
99
with the requirements of equal protection and due process
without substantial additional work. The court below has said that
the legislature intended the State's electors to participate fully
in the federal electoral process, as provided in 3 U. S. C. § 5,
which 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 here, but there is no recount procedure in place
under the state court's order that comports with minimal
constitutional standards.
772 So. 2d 1243, reversed and remanded.
Theodore B. Olson argued the cause for petitioners. With him on
the brief were Douglas R. Cox, Thomas G. Hungar, Benjamin L.
Ginsberg, Michael A. Carvin, Barry Richard, Miguel A. Estrada,
George J. Terwilliger III, Timothy E. Flanigan, William K. Kelley,
John F. Manning, and Bradford R. Clark. Joseph P. Klock, Jr.,
argued the cause for Katherine Harris et al., respondents under
this Court's Rule 12.6 in support of petitioners. With him on the
brief were John W Little III, Alvin F. Lindsay III, Ricardo M.
Martinez-Cid, and Bill L. Bryant, Jr. Briefs in support of
petitioners were filed by William Kemper Jennings for Glenda Carr
et al.; by Robert A. Destro for Stephen Cruce et al.; and by George
S. LeMieux and Frederick J. Springer for John E. Thrasher, all
respondents under this Court's Rule 12.6.
David Boies argued the cause for respondents Gore et
al.
With him on the brief were Laurence H. Tribe, Andrew J. Pincus,
Thomas C. Goldstein, Jonathan S. Massey, Kendall Coffey, and Peter
J. Rubin. *
*Briefs of amici curiae urging reversal were filed for the State
of Alabama by Bill Pryor, Attorney General, and Charles B.
Campbell, Scott L. Rouse, and A. Vernon Barnett TV; Assistant
Attorneys General; for the Florida House of Representatives et al.
by Charles Fried, Einer Elhauge, and Roger J. Magnuson; for William
H. Haynes et al. by Jay Alan Sekulow, Thomas P. Monaghan, Stuart J.
Roth, Colby M. May, James M. Henderson, Sr., David A. Cortman,
Griffin B. Bell, Paul D. Clement, and Jeffrey S. Bucholtz.
Briefs of
amici curiae urging affirmance were filed for
the Brennan Center for Justice at New York University School of Law
by
Burt Neuborne; and for Robert A. Butterworth, Attorney
General of Florida, by
100
Per Curiam
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 State Supreme Court noted that
petitioner 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.
Gore v.
Harris, 772 So. 2d 1243, 1248, 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
President and Vice President, 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. 1046.
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. 70
(per curiam) (Bush
I). On November 8, 2000, the day following the Presidential
election, the Florida Division of Elections reported that
petitioner Bush had received 2,909,135 votes, and respondent Gore
had received 2,907,351 votes, a margin of
Mr. Butterworth, pro se, Paul F. Hancock, Deputy Attorney
General, Jason Vail, Assistant Attorney General, and Kimberly J.
Tucker.
Briefs of amici curiae were filed for the National Bar
Association by David Earl Honig; for Robert Harris et al. by Bruce
J. Terris, Carolyn Smith Pravlik, Kathleen L. Millian, Sarah A.
Adams, and Roger J. Bernstein; and for Michael F. Wasserman, pro
se.
101
1,784 for Governor Bush. Because Governor Bush's margin of
victory was less than "one-half of a percent ... of the votes
cast," an automatic machine recount was conducted under §
102.141(4) of the Florida Election Code, the results of which
showed Governor Bush still winning the race but by a diminished
margin. Vice President Gore then sought manual recounts in Volusia,
Palm Beach, Broward, and Miami-Dade Counties, pursuant to Florida's
election protest provisions. Fla. Stat. Ann. § 102.166 (Supp.
2001). A dispute arose concerning the deadline for local county
canvassing boards to submit their returns to the Secretary of State
(Secretary). The Secretary declined to waive the November 14
deadline imposed by statute. §§ 102.111, 102.112. The Florida
Supreme Court, however, set the deadline at November 26. We granted
certiorari and vacated the Florida Supreme Court's decision,
finding considerable uncertainty as to the grounds on which it was
based.
Bush I, ante, at 78. On December 11, the Florida
Supreme Court issued a decision on remand reinstating that date.
Palm Beach County Canvassing Bd. v.
Harris, 772 So.
2d 1273, 1290.
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. Ann. § 102.168 (Supp. 2001). He sought
relief pursuant to § 102.168(3)(c), which provides that "[r]eceipt
of a number of illegal votes or rejection of a number of legal
votes sufficient to change or place in doubt the result of the
election" shall be grounds for a contest. The Circuit Court denied
relief, stating that Vice President Gore failed to meet his burden
of proof. He appealed to the First District Court of Appeal, which
certified the matter to the Florida Supreme Court.
Accepting jurisdiction, the Florida Supreme Court affirmed in
part and reversed in part.
Gore v.
Harris, 772
102
Per Curiam
So. 2d 1243 (2000). The court held that the Circuit Court had
been correct to reject Vice President Gore's challenge to the
results certified in Nassau County and his challenge to the Palm
Beach County Canvassing Board's determination that 3,300 ballots
cast in that county were not, in the statutory phrase, "legal
votes."
The Supreme Court held that Vice President Gore had satisfied
his burden of proof under § 102.168(3)(c) with respect to his
challenge to Miami-Dade County's failure to tabulate, by manual
count, 9,000 ballots on which the machines had failed to detect a
vote for President ("undervotes").
Id., at 1256. 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 1261. 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 1257. 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," § 102.168(8), 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."
Id., at 1262.
The Supreme Court also determined that Palm Beach County and
Miami-Dade County, in their earlier manual recounts, had identified
a net gain of 215 and 168 legal votes, respectively, for Vice
President Gore.
Id., at 1260. Rejecting the Circuit Court's
conclusion that Palm Beach County lacked the authority to include
the 215 net votes sub-
103
mitted 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."
Ibid. The Supreme Court therefore directed the Circuit Court
to include those totals in the certified results, subject to
resolution of the actual vote total from the Miami-Dade partial
recount.
The petition presents the following questions: whether the
Florida Supreme Court established new standards for resolving
Presidential election contests, thereby violating Art. II, § 1, cl.
2, of the United States Constitution and failing to comply with 3
U. S. C. § 5, and whether the use of standardless manual recounts
violates the Equal Protection and Due Process Clauses. With respect
to the equal protection question, we find a violation of the Equal
Protection Clause.
II A
The closeness of this election, and the multitude of legal
challenges which have followed in its wake, have brought into sharp
focus a common, if heretofore unnoticed, phenomenon. Nationwide
statistics reveal that an estimated 2% of ballots cast do not
register a vote for President for whatever reason, including
deliberately choosing no candidate at all or some voter error, such
as voting for two candidates or insufficiently marking a ballot.
See Ho, More Than 2M Ballots Uncounted, AP Online (Nov. 28, 2000);
Kelley, Balloting Problems Not Rare But Only in a Very Close
Election Do Mistakes and Mismarking Make a Difference, Omaha
World-Herald (Nov. 15,2000). In certifying election results, the
votes eligible for inclusion in the certification are the votes
meeting the properly established legal requirements.
104
Per Curiam
This case has shown that punchcard balloting machines can
produce an unfortunate number of ballots which are not punched in a
clean, complete way by the voter. After the current counting, it is
likely legislative bodies nationwide will examine ways to improve
the mechanisms and machinery for voting.
B
The individual citizen has no federal constitutional right to
vote for electors for the President of the United States unless and
until the state legislature chooses a statewide election as the
means to implement its power to appoint members of the electoral
college. U. S. Const., Art. II, § 1. This is the source for the
statement in
McPherson v.
Blacker, 146 U. S. 1, 35 (1892),
that the state legislature's power to select the manner for
appointing electors is plenary; it may, if it so chooses, select
the electors itself, which indeed was the manner used by state
legislatures in several States for many years after the framing of
our Constitution.
Id., at 28-33. History has now favored the
voter, and in each of the several States the citizens themselves
vote for Presidential electors. When the state legislature vests
the right to vote for President in its people, the right to vote as
the legislature has prescribed is fundamental; and one source of
its fundamental nature lies in the equal weight accorded to each
vote and the equal dignity owed to each voter. The State, of
course, after granting the franchise in the special context of
Article II, can take back the power to appoint electors. See id.,
at 35 (" '[T]here is no doubt of the right of the legislature to
resume the power at any time, for it can neither be taken away nor
abdicated''') (quoting
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
105
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 register the perforations. 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 nonarbitrary 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
106
Per Curiam
the voter." 772 So. 2d, at 1262. 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 id., at 1267 (Wells, C. 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
consid-
107
ered 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, 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,
108
Per Curiam
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
discernible 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 discernible
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 respondents'
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 772 So. 2d, at
1261-1262, 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
Palm Beach County Canvassing Bd. v.
Harris, 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.
109
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 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
110
Per Curiam
addressed, although Chief Justice Wells called attention to the
concern in his dissenting opinion. See 772 So. 2d, at 1264, 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 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, as required by Fla.
Stat. Ann. § 101.015 (Supp. 2001).
The Supreme Court of Florida has said that the legislature
intended the State's electors to "participat[e] fully in the
federal electoral process," as provided in 3 U. S. C. § 5. 772 So.
2d, at 1289; see also
Palm Beach County Canvassing Bd. v.
Harris, 772 So. 2d 1220, 1237 (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.
111
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 134 (SOUTER, J., dissenting);
post, at 145-146 (BREYER, J., dissenting). The only
disagreement is as to the remedy. Because the Florida Supreme Court
has said that the Florida Legislature intended to obtain the
safe-harbor benefits of 3 U. S. C. § 5, JUSTICE BREYER'S proposed
remedy-remanding to the Florida Supreme Court for its ordering of a
constitutionally proper contest until December 18-contemplates
action in violation of the Florida Election Code, and hence could
not be part of an "appropriate" order authorized by Fla. Stat. Ann.
§ 102.168(8) (Supp. 2001).
***
None are more conscious of the vital limits on judicial
authority than are the Members of this Court, and none stand more
in admiration of the Constitution's design to leave the selection
of the President to the people, through their legislatures, and to
the political sphere. When contending parties invoke the process of
the courts, however, it becomes our unsought responsibility to
resolve the federal and constitutional issues the judicial system
has been forced to confront.
The judgment of the Supreme Court of Florida is reversed, and
the case is remanded for further proceedings not inconsistent with
this opinion.
Pursuant to this Court's Rule 45.2, the Clerk is directed to
issue the mandate in this case forthwith.
It is so ordered.
CHIEF JUSTICE REHNQUIST, with whom JUSTICE SCALIA and JUSTICE
THOMAS join, concurring.
We join the
per curiam opinion. We write separately
because we believe there are additional grounds that require us to
reverse the Florida Supreme Court's decision.
112
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
[(1890)]), 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, 794795
(1983) (footnote omitted), we said: "[I]n the context of a
Presidential election, state-imposed restrictions implicate a
uniquely important national interest. For the President and the
Vice President of the United States are the only elected officials
who represent all the voters in the Nation."
In most cases, comity and respect for federalism compel us to
defer to the decisions of state courts on issues of state law. That
practice reflects our understanding that the decisions of state
courts are definitive pronouncements of the will of the States as
sovereigns. Cf.
Erie R. Co. v.
Tompkins, 304 U. S. 64 (1938). Of
course, in ordinary cases, the distribution of powers among the
branches of a State's government raises no questions of federal
constitutional law, subject to the requirement that the government
be republican in character. See U. S. Const., Art. IV; § 4. But
there are a few exceptional cases in which the Constitution imposes
a duty or confers a power on a particular branch of a State's
government. This is one of them. Article II, § 1, cl. 2, provides
that "[e]ach State shall appoint, in such Manner as the
Legislature thereof may direct," electors for President and
Vice President. (Emphasis added.) Thus,
113
the text of the election law itself, and not just its
interpretation by the courts of the States, takes on independent
significance.
In
McPherson v.
Blacker, 146 U. S. 1 (1892), we
explained that Art. II, § 1, cl. 2, "convey[s] the broadest power
of determination" and "leaves it to the legislature exclusively to
define the method" of appointment. 146 U. S., at 27. A significant
departure from the legislative scheme for appointing Presidential
electors presents a federal constitutional question.
Title 3 U. S. C. § 5 informs our application of Art. II, § 1,
cl. 2, to the Florida statutory scheme, which, as the Florida
Supreme Court acknowledged, took that statute into account. Section
5 provides that the State's selection of electors "shall be
conclusive, and shall govern in the counting of the electoral
votes" if the electors are chosen under laws enacted prior to
election day, and if the selection process is completed six days
prior to the meeting of the electoral college. As we noted in
Bush v.
Palm Beach County Canvassing Bd., ante, at
78:
"Since § 5 contains a principle of federal law that would assure
finality of the State's determination if made pursuant to a state
law in effect before the election, a legislative wish to take
advantage of the 'safe harbor' would counsel against any
construction of the Election Code that Congress might deem to be a
change in the law."
If we are to respect the legislature's Article II powers,
therefore, we must ensure that postelection state-court actions do
not frustrate the legislative desire to attain the "safe harbor"
provided by § 5.
In Florida, the legislature has chosen to hold statewide
elections to appoint the State's 25 electors. Importantly, the
legislature has delegated the authority to run the elections and to
oversee election disputes to the Secretary of
114
State (Secretary), Fla. Stat. Ann. § 97.012(1) (Supp. 2001), and
to state circuit courts, §§ 102.168(1), 102.168(8). Isolated
sections of the code may well admit of more than one
interpretation, but the general coherence of the legislative scheme
may not be altered by judicial interpretation so as to wholly
change the statutorily provided apportionment of responsibility
among these various bodies. In any election but a Presidential
election, the Florida Supreme Court can give as little or as much
deference to Florida's executives as it chooses, so far as Article
II is concerned, and this Court will have no cause to question the
court's actions. But, with respect to a Presidential election, the
court must be both mindful of the legislature's role under Article
II in choosing the manner of appointing electors and deferential to
those bodies expressly empowered by the legislature to carry out
its constitutional mandate.
In order to determine whether a state court has infringed upon
the legislature's authority, we necessarily must examine the law of
the State as it existed prior to the action of the court. Though we
generally defer to state courts on the interpretation of state
law-see,
e. g.,
Mullaney v.
Wilbur, 421 U. S. 684
(1975)-there are of course areas in which the Constitution requires
this Court to undertake an independent, if still deferential,
analysis of state law.
For example, in
NAACP v.
Alabama ex rel.
Patterson, 357 U.
S. 449 (1958), it was argued that we were without jurisdiction
because the petitioner had not pursued the correct appellate remedy
in Alabama's state courts. Petitioner 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
115
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 361362. 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
11.1
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.
1 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 Mum. 218 (Va. 1809).
116
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. Ann. § 103.011
(1992). 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 as the "chief election
officer," with the responsibility to "[o]btain and maintain
uniformity in the application, operation, and interpretation of the
election laws." Fla. Stat. Ann. § 97.012 (Supp. 2001). The state
legislature has delegated to county canvassing boards the duties of
administering elections. § 102.141. Those boards are responsible
for providing results to the state Elections Canvassing Commission,
comprising the Governor, the Secretary of State, and the Director
of the Division of Elections. § 102.111. Cf.
Boardman v.
Esteva, 323 So. 2d 259, 268, n. 5 (1975) ("The election
process ... is committed to the executive branch of government
through duly designated officials all charged with specific duties
.... [The] judgments [of these officials] are entitled to be
regarded by the courts as presumptively correct ... ").
After the election has taken place, the canvassing boards
receive returns from precincts, count the votes, and in the event
that a candidate was defeated by 0.5% or less, conduct a mandatory
recount. Fla. Stat. Ann. § 102.141(4) (Supp. 2001). The county
canvassing boards must file certified election returns with the
Department of State by 5 p.m. on the seventh day following the
election. § 102.112(1). The Elections Canvassing Commission must
then certify the results of the election. § 102.111(1).
The state legislature has also provided mechanisms both for
protesting election returns and for contesting certified
117
election results. Section 102.166 governs protests. Any protest
must be filed prior to the certification of election results by the
county canvassing board. § 102.166(4)(b). Once a protest has been
filed, "[t]he county canvassing board may authorize a manual
recount." § 102.166(4)(c). If a sample recount conducted pursuant
to § 102.166(5) "indicates an error in the vote tabulation which
could affect the outcome of the election," the county canvassing
board is instructed to: "(a) Correct the error and recount the
remaining precincts with the vote tabulation system; (b) Request
the Department of State to verify the tabulation software; or (c)
Manually recount all ballots," § 102.166(5). In the event a
canvassing board chooses to conduct a manual recount of all
ballots, § 102.166(7) prescribes procedures for such a recount.
Contests to the certification of an election, on the other hand,
are controlled by § 102.168. The grounds for contesting an election
include "[r]eceipt of a number of illegal votes or rejection of a
number of legal votes sufficient to change or place in doubt the
result of the election." § 102.168(3)(c). Any contest must be filed
in the appropriate Florida circuit court, § 102.168(1), and the
canvassing board or election board is the proper party defendant, §
102.168(4). Section 102.168(8) provides that "[t]he circuit judge
to whom the contest is presented may fashion such orders as he or
she deems necessary to ensure that each allegation in the complaint
is investigated, examined, or checked, to prevent or correct any
alleged wrong, and to provide any relief appropriate under such
circumstances." In Presidential elections, the contest period
necessarily terminates on the date set by 3 U. S. C. § 5 for
concluding the State's "final determination" of election
controversies.
In its first decision,
Palm Beach Canvassing Bd. v.
Harris, 772 So. 2d 1220 (2000)
(Harris 1), the
Florida Supreme Court extended the 7-day statutory certification
deadline estab-
118
lished by the legislature.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 1) 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. Ann. § 102.112 (Supp.
2001). 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 1), thus
virtually eliminating both the deadline and the Secretary's
discretion to disregard recounts that violate it.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 im-
2We vacated that decision and remanded that case; the Florida
Supreme Court reissued the same judgment with a new opinion on
December 11,
2000, Palm Beach County Canvassing Bd. v.
Harris, 772 So. 2d 1273.
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.
119
properly marked ballots. Each Florida precinct before election
day provides instructions on how properly to cast a vote, Fla.
Stat. Ann. § 101.46 (1992); each polling place on election day
contains a working model of the voting machine it uses, Fla. Stat.
Ann. § 101.5611 (Supp. 2001); and each voting booth contains a
sample ballot, § 101.46. In precincts using punchcard 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 Brief for Respondent Harris et al. 13, n. 5.
No reasonable person would call it "an error in the vote
tabulation," Fla. Stat. Ann. § 102.166(5) (Supp. 2001), or a
"rejection of ... legal votes," § 102.168(3)(c),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," §
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, who is authorized by law to issue binding
interpretations of the Election Code, §§ 97.012,106.23, rejected
this peculiar reading of the statutes. See DE 00-13 (opinion of the
Division of Elections). The Florida Supreme Court,
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.
120
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
Bd. v.
Harris, 772 So. 2d 1273 (2000)
(Harris
III).
But as we indicated in our remand of the earlier case, in a
Presidential election the clearly expressed intent of the
legislature must prevail. And there is no basis for reading the
Florida statutes as requiring the counting of improperly marked
ballots, as an examination of the Florida Supreme Court's textual
analysis shows. We will not parse that analysis here, except to
note that the principal provision of the Election Code on which it
relied, § 101.5614(5), was, as Chief Justice Wells pointed out in
his dissent in
Gore v.
Harris, 772 So. 2d 1243, 1267
(2000)
(Harris II), entirely irrelevant. 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., O. T. 2000, No. 00-836, pp. 39-40; 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, the state
official charged by the legislature with "responsibility to ...
[o]btain and maintain uniformity in the application, operation, and
interpretation of the election laws," § 97.012(1), was to depart
from the legislative scheme.
III
The scope and nature of the remedy ordered by the Florida
Supreme Court jeopardizes the "legislative wish" to take
121
advantage of the safe harbor provided by 3 U. S. C. § 5.
Bush v.
Palm Beach County Canvassing Bd., ante, at 78
(per curiam). December 12, 2000, is the last date for a
final determination of the Florida electors that will satisfy § 5.
Yet in the late afternoon of December 8th-four days before this
deadline-the Supreme Court of Florida ordered recounts of tens of
thousands of so-called "undervotes" spread through 64 of the
State's 67 counties. This was done in a search for elusive-perhaps
delusive-certainty as to the exact count of 6 million votes. But no
one claims that these ballots have not previously been tabulated;
they were initially read by voting machines at the time of the
election, and thereafter reread by virtue of Florida's automatic
recount provision. No one claims there was any fraud in the
election. The Supreme Court of Florida ordered this additional
recount under the provision of the Election Code giving the circuit
judge the authority to provide relief that is "appropriate under
such circumstances." Fla. Stat. Ann. § 102.168(8) (Supp. 2001).
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 cutoff date of 3 U. S. C. § 5. In
light of the inevitable legal challenges and ensuing appeals to the
Supreme Court of Florida and petitions for certiorari to this
Court, the entire recounting process could not possibly be
completed by that date. Whereas the majority in the Supreme Court
of Florida stated its confidence that "the remaining undervotes in
these counties can be [counted] within the required time frame,"
772 So. 2d, at 1262, 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
122
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 six million voters who are able to
correctly cast their ballots on election day." 772 So. 2d, at 1269
(opinion of Wells, C. J.) (footnote omitted).
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 1273 (Harding, J., dissenting,
joined by Shaw, J.).
Given all these factors, and in light of the legislative intent
identified by the Florida Supreme Court to bring Florida within the
"safe harbor" provision of 3 U. S. C. § 5, the remedy prescribed by
the Supreme Court of Florida cannot be deemed an "appropriate" one
as of December 8. It significantly departed from the statutory
framework in place on November 7, and authorized open-ended further
proceedings which could not be completed by December 12, thereby
preventing a final determination by that date.
For these reasons, in addition to those given in the
per
curiam opinion, we would reverse.
123
JUSTICE STEVENS, with whom JUSTICE GINSBURG and JUSTICE BREYER
join, dissenting.
The Constitution assigns to the States the primary
responsibility for determining the manner of selecting the
Presidential electors. See Art. II, § 1, cl. 2. When questions
arise about the meaning of state laws, including election laws, it
is our settled practice to accept the opinions of the highest
courts of the States as providing the final answers. On rare
occasions, however, either federal statutes or the Federal
Constitution may require federal judicial intervention in state
elections. This is not such an occasion.
The federal questions that ultimately emerged in this case are
not substantial. Article II provides that "[e]ach
State
shall appoint, in such Manner as the Legislature
thereof may
direct, a Number of Electors."
Ibid. (emphasis added). It
does not create state legislatures out of whole cloth, but rather
takes them as they come-as creatures born of, and constrained by,
their state constitutions. Lest there be any doubt, we stated over
100 years ago in
McPherson v.
Blacker, 146 U. S. 1, 25 (1892),
that "[w]hat is forbidden or required to be done by a State" in the
Article II context "is forbidden or required of the legislative
power under state constitutions as they exist." In the same vein,
we also observed that "[t]he [State's] legislative power is the
supreme authority except as limited by the constitution of the
State."
Ibid.; cf.
Smiley v.
Holm, 285 U. S. 355, 367
(1932).1 The legislative power in Florida is subject to judicial
review pur-
1 "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 366. It is perfectly clear that the meaning of
the words "Manner" and "Legislature" as used in Article II, § 1,
parallels the usage in Article I, § 4, rather than the language in
Article V.
U. S.
Term Limits, Inc. v.
Thornton, 514
U. S. 779, 805 (1995). Article I, § 4, and Article II, § 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.
124
suant 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.
lt hardly needs stating that Congress, pursuant to 3 U. S. C. §
5, did not impose any affirmative duties upon the States that their
governmental branches could "violate." Rather, § 5 provides a safe
harbor for States to select electors in contested elections "by
judicial or other methods" established by laws prior to the
election day. Section 5, like Article II, assumes the involvement
of the state judiciary in interpreting state election laws and
resolving election disputes under those laws. Neither § 5 nor
Article II grants federal judges any special authority to
substitute their views for those of the state judiciary on matters
of state law.
Nor are petitioners correct in asserting that the failure of the
Florida Supreme Court to specify in detail the precise manner in
which the "intent of the voter," Fla. Stat. Ann. § 101.5614(5)
(Supp. 2001), is to be determined rises to the level of a
constitutional violation.2 We found such a viola-
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. § 16-645(A) (Supp. 2000) (standard for
canvassing write-in votes); Conn. Gen. Stat. § 9-150a(j) (1999)
(standard for absentee ballots, including three conclusive
presumptions); Ind. Code § 3-12-1-1 (1992); Me. Rev. Stat. Ann.,
Tit. 21-A, § 1(13) (1993); Md. Ann. Code, Art. 33, § 11-302(d)
(2000 Supp.) (standard for absentee ballots); Mass. Gen. Laws § 70E
(1991) (applying standard to Presidential primaries); Mich.
125
tion 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 every
day by ordinary citizens in courtrooms across this country.3
Compo Laws § 168.799a(3) (Supp. 2000); Mo. Rev. Stat. §
115.453(3) (Cum. Supp. 1998) (looking to voter's intent where there
is substantial compliance with statutory requirements); Tex. Elec.
Code Ann. § 65.009(c) (1986); Utah Code Ann. §20A-4-104(5)(b)
(Supp. 2000) (standard for write-in votes), §20A-4-105(6)(a)
(standard for mechanical ballots); Vt. Stat. Ann., Tit. 17,
§2587(a) (1982); Va. Code Ann. §24.2-644(A) (2000); Wash. Rev. Code
§29.62.180(1) (Supp. 2001) (standard for write-in votes); Wyo.
Stat. Ann. §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 §
11-46-44(c) (1992), Ala. Code § 17-13-2 (1995); Ariz. Rev. Stat.
Ann. § 16-610 (1996) (standard for rejecting ballot); Cal. Elec.
Code Ann. § 15154(c) (West Supp. 2000); Colo. Rev. Stat. §
1-7309(1) (1999) (standard for paper ballots), § 1-7-508(2)
(standard for electronic ballots); Del. Code Ann., Tit. 15, §
4972(4) (1999); Idaho Code § 341203 (1981); Ill. Compo Stat., ch.
10, § 5/7-51 (1993) (standard for primaries), § 5/17-16 (standard
for general elections); Iowa Code § 49.98 (1999); Me. Rev. Stat.
Ann., Tit. 21-A §§ 696(2)(B), (4) (Supp. 2000); Minn. Stat.
§204C.22(1) (1992); Mont. Code Ann. § 13-15-202 (1997) (not
counting votes if "elector's choice cannot be determined"); Nev.
Rev. Stat. § 293.367(d) (1995); N. Y. Elec. Law § 9-112(6)
(McKinney 1998); N. C. Gen. Stat. §§ 163-169(b), 163-170 (1999); N.
D. Cent. Code § 16.1-15-01(1) (Supp. 1999); Ohio Rev. Code Ann. §
3505.28 (1994); Okla. Stat., Tit. 26, § 7-127(6) (1997); Ore. Rev.
Stat. § 254.505(1) (1991); S. C. Code Ann. § 7-13-1120 (1977); S.
D. Codified Laws § 12-20-7 (1995); Tenn. Code Ann. §2-7-133(b)
(1994); W. Va. Code § 3-6-5(g) (1999).
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").
126
Admittedly, the use of differing sub standards 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 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 rea-
4 The percentage of nonvotes in this election in counties using
a punchcard system was 3.92%; in contrast, the rate of error under
the more modern optical-scan systems was only 1.43%.
Siegel
v.
LePore, 234 F.3d
1163, 1202, 1213 (charts C and F) (CAll 2000). Put in other
terms, for every 10,000 votes cast, punchcard systems result in 250
more nonvotes than optical-scan systems. A total of 3,718,305 votes
were cast under punchcard systems, and 2,353,811 votes were cast
under optical-scan systems.
Ibid.
127
soning, 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 110. 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 124. 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).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 108.
Finally, neither in this case, nor in its earlier opinion in
Palm Beach County Canvassing Bd. v.
Harris, 772 So.
2d 1220 (2000), did the Florida Supreme Court make any sub-
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.
128
stantive change in Florida electorallaw.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 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 dothat 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 to day'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,
6 When, for example, it resolved the previously unanswered
question whether the word "shall" in Fla. Stat. Ann. § 102.111
(Supp. 2001) or the word "may" in § 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
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).
129
the identity of the loser is perfectly clear. It is the Nation's
confidence in the judge as an impartial guardian of the rule of
law.
I respectfully dissent.
JUSTICE SOUTER, with whom JUSTICE BREYER joins, and with whom
JUSTICE STEVENS and JUSTICE GINSBURG join as to all but Part III,
dissenting.
The Court should not have reviewed either
Bush v.
Palm
Beach County Canvassing Bd., ante, p. 70
(per curiam),
or this case, and should not have stopped Florida's attempt to
recount all undervote ballots, see
ante, at 102, by issuing
a stay of the Florida Supreme Court's orders during the period of
this review, see
Bush v.
Gore, post, at 1046. If this
Court had allowed the State to follow the course indicated by the
opinions of its own Supreme Court, it is entirely possible that
there would ultimately have been no issue requiring our review, and
political tension could have worked itself out in the Congress
following the procedure provided in 3 U. S. C. § 15. The case being
before us, however, its resolution by the majority is another
erroneous decision.
As will be clear, I am in substantial agreement with the
dissenting opinions of JUSTICE STEVENS, JUSTICE GINSBURG, and
JUSTICE BREYER. I write separately only to say how straightforward
the issues before us really are.
There are three issues: whether the State Supreme Court's
interpretation of the statute providing for a contest of the state
election results somehow violates 3 U. S. C. § 5; whether that
court's construction of the state statutory provisions governing
contests impermissibly changes a state law from what the State's
legislature has provided, in violation of Article II, § 1, cl. 2,
of the National Constitution; and whether the manner of
interpreting markings on disputed ballots failing to cause machines
to register votes for President (the undervote ballots) violates
the equal protection or
130
due process guaranteed by the Fourteenth Amendment. None of
these issues is difficult to describe or to resolve.
I
The 3 U. S. C. § 5 issue is not serious. That provision sets
certain conditions for treating a State's certification of
Presidential electors as conclusive in the event that a dispute
over recognizing those electors must be resolved in the Congress
under 3 U. S. C. § 15. Conclusiveness requires selection under a
legal scheme in place before the election, with results determined
at least six days before the date set for casting electoral votes.
But no State is required to conform to § 5 if it cannot do that
(for whatever reason); the sanction for failing to satisfy the
conditions of § 5 is simply loss of what has been called its "safe
harbor." And even that determination is to be made, if made
anywhere, in the Congress.
II
The second matter here goes to the State Supreme Court's
interpretation of certain terms in the state statute governing
election "contests," Fla. Stat. Ann. § 102.168 (Supp. 2001); there
is no question here about the state court's interpretation of the
related provisions dealing with the antecedent process of
"protesting" particular vote counts, § 102.166, which was involved
in the previous case,
Bush v.
Palm Beach County
Canvassing Bd. The issue is whether the judgment of the State
Supreme Court has displaced the state legislature's provisions for
election contests: is the law as declared by the court different
from the provisions made by the legislature, to which the National
Constitution commits responsibility for determining how each
State's Presidential electors are chosen? See U. S. Const., Art.
II, § 1, cl. 2. Bush does not, of course, claim that any judicial
act interpreting a statute of uncertain meaning is enough to
displace the legislative provision and violate Article II; statutes
require interpretation, which does not without more affect the
legislative char-
131
acter of a statute within the meaning of the Constitution. Brief
for Petitioner in
Bush v.
Palm Beach County
Canvassing Bd., O. T. 2000, No. 00-836, p. 48, n. 22. What Bush
does argue, as I understand the contention, is that the
interpretation of § 102.168 was so unreasonable as to transcend the
accepted bounds of statutory interpretation, to the point of being
a nonjudicial act and producing new law untethered to the
legislative Act in question.
The starting point for evaluating the claim that the Florida
Supreme Court's interpretation effectively rewrote § 102.168 must
be the language of the provision on which Gore relies to show his
right to raise this contest: that the previously certified result
in Bush's favor was produced by "rejection of a number of legal
votes sufficient to change or place in doubt the result of the
election." Fla. Stat. Ann. § 102.168(3)(c) (Supp. 2001). None of
the state court's interpretations is unreasonable to the point of
displacing the legislative enactment quoted. As I will note below,
other interpretations were of course possible, and some might have
been better than those adopted by the Florida court's majority; the
two dissents from the majority opinion of that court and various
briefs submitted to us set out alternatives. But the majority view
is in each instance within the bounds of reasonable interpretation,
and the law as declared is consistent with Article II.
1. The statute does not define a "legal vote," the rejection of
which may affect the election. The State Supreme Court was
therefore required to define it, and in doing that the court looked
to another election statute, § 101.5614(5), dealing with damaged or
defective ballots, which contains a provision that no vote shall be
disregarded "if there is a clear indication of the intent of the
voter as determined by the 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, 772
132
So. 2d 1243, 1256-1257 (2000). It is perfectly true that the
majority might have chosen a different reading. See,
e. g.,
Brief for Respondent Harris et al. 10 (defining "legal votes" as
"votes properly executed in accordance with the instructions
provided to all registered voters in advance of the election and in
the polling places"). But even so, there is no constitutional
violation in following the majority view; Article II is unconcerned
with mere disagreements about interpretive merits.
2. The Florida court next interpreted "rejection" to determine
what act in the counting process may be attacked in a contest.
Again, the statute does not define the term. The court majority
read the word to mean simply a failure to count. 772 So. 2d, at
1257. 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 1266 (Wells, C. J., dissenting). There is,
however, nothing nonjudicial in the Florida majority's more
hospitable reading.
3. The same is true about the court majority's understanding of
the phrase "votes sufficient to change or place in doubt" the
result of the election in Florida. The court held that if the
uncounted ballots were so numerous that it was reasonably possible
that they contained enough "legal" votes to swing the election,
this contest would be authorized by the statute. * While the
majority might have thought (as
*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, 772 So. 2d 1243, 1272-1273 (2000) (Harding, J.,
dissenting). Gore's counsel represented to us that the
133
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 ArticleII.
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. Ann. §
102.168(8) (Supp. 2001), 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.
III
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
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.
134
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. 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
135
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, 772 So. 2d, at 1272-1273, the number
at issue is significantly smaller. The 170,000 figure apparently
represents all uncounted votes, both undervotes (those for which no
Presidential choice was recorded by a machine) and overvotes (those
rejected because of votes for more than one candidate). Tr. of Oral
Arg. 61-62. But as JUSTICE BREYER has pointed out, no showing has
been made of legal overvotes uncounted, and counsel for Gore made
an uncontradicted representation to the Court that the statewide
total of undervotes is about
60,000. Id., at 62. To recount
these manually would be a tall order, but before this Court stayed
the effort to do that the courts of Florida were ready to do their
best to get that job done. There is no justification for denying
the State the opportunity to try to count all disputed ballots
now.
I respectfully dissent.
JUSTICE GINSBURG, with whom JUSTICE STEVENS joins, and with whom
JUSTICE SOUTER and JUSTICE BREYER join as to Part I,
dissenting.
I
THE CHIEF JUSTICE acknowledges that provisions of Florida's
Election Code "may well admit of more than one interpretation."
Ante, at 114 (concurring opinion). But instead of respecting
the state high court's province to say what the State's Election
Code means, THE CHIEF JUSTICE maintains that Florida's Supreme
Court has veered so far from the ordinary practice of judicial
review that what it did cannot
136
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, 772 So. 2d 1243, 1264-1270
(Fla. 2000) (Wells, C. J., dissenting);
Palm Beach County
Canvassing Bd. v.
Harris, 772 So. 2d 1273, 1291-1292
(Fla. 2000) (on remand) (confirming, 6 to 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
offederal 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
137
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 (citing
Indiana ex
rel. Anderson v.
Brand, 303 U. S. 95, 100 (1938)).
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,
138
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
195.1
In deferring to state courts on matters of state law, we
appropriately recognize that this Court acts as an "'outside[rJ'
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
1 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 (citing
American Oil
Co. v.
Neill, 380 U. S. 451, 455-456
(1965)).
139
court."). Notwithstanding our authority to decide issues of
state law underlying federal claims, we have used the certification
device to afford state high courts an opportunity to inform us on
matters of their own State's law because such restraint "helps
build a cooperative judicial federalism."
Lehman Brothers,
416 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,
140
are three such rare instances. See
ante, at 114-115, and
n. 1. But those cases are embedded in historical contexts hardly
comparable to the situation here.
Fairfax's Devisee, which
held that the Virginia Court of Appeals had misconstrued its own
forfeiture laws to deprive a British subject of lands secured to
him by federal treaties, occurred amidst vociferous States' rights
attacks on the Marshall Court. G. Gunther & K. Sullivan,
Constitutional Law 61-62 (13th ed. 1997). The Virginia court
refused to obey this Court's
Fairfax's Devisee mandate to
enter judgment for the British subject's successor in interest.
That refusal led to the Court's pathmarking decision in
Martin v.
Hunter's Lessee, 1 Wheat. 304 (1816).
Patterson, a case decided three months after
Cooper
v.
Aaron, 358 U.
S. 1 (1958), in the face of Southern resistance to the civil
rights movement, held that the Alabama Supreme Court had
irregularly applied its own procedural rules to deny review of a
contempt order against the NAACP arising from its refusal to
disclose membership lists. We said that "our jurisdiction is not
defeated if the nonfederal ground relied on by the state court is
'without any fair or substantial support.''' 357 U. S., at 455
(quoting
Ward v.
Board of Commr's of Love Cty.,
253 U. S. 17, 22
(1920)).
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 149-152 (dissenting opinion), this case
141
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 115 (concurring opinion) ("To attach
definitive weight to the pronouncement of a state court, when the
very question at issue is whether the court has actually departed
from the statutory meaning, would be to abdicate our responsibility
to enforce the explicit requirements of Article 11."). The Framers
of our Constitution, however, understood that in a republican
government, the judiciary would construe the legislature's
enactments. See U. S. Const., Art. III; The Federalist No. 78 (A.
Hamilton). In light of the constitutional guarantee to States of a
"Republican Form of Government," U. S. Const., Art. IV, § 4,
Article II can hardly be read to invite this Court to disrupt a
State's republican regime. Yet THE CHIEF JUSTICE today would reach
out to do just that. By holding that Article II requires our
revision of a state court's construction of state laws in order to
protect one organ of the State from another, THE CHIEF JUSTICE
contradicts the basic principle that a State may organize itself as
it sees fit. See,
e. g., Gregory v.
Ashcroft,
501 U. S. 452,
460 (1991) ("Through the structure of its government, and the
character of those who exercise government authority, a State
defines itself as a sovereign.");
Highland Farms Dairy, Inc.
v.
Agnew, 300
U. S. 608, 612 (1937) ("How power shall be distributed by a
state among its governmental organs is commonly, if not always, a
question
142
for the state itself.").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 a state high court's interpretations of the State's own law.
This principle reflects the core of federalism, on which all agree.
"The Framers split the atom of sovereignty. It was the genius of
their idea that our citizens would have two political capacities,
one state and one federal, each protected from incursion by the
other."
Saenz v.
Roe, 526 U. S. 489, 504, n. 17
(1999) (citing
U. S.
Term Limits, Inc. v.
Thornton, 514
U. S. 779, 838 (1995) (KENNEDY, J., concurring)). THE CHIEF
JUSTICE'S solicitude for the Florida Legislature comes at the
expense of the more fundamental solicitude we owe to the
legislature's sovereign. U. S. Const., Art. II, § 1, cl. 2 ("Each
State shall appoint, in such Manner as the Legislature
thereof may direct," the electors for President and Vice
President (emphasis added));
ante, at 123-124 (STEVENS, J.,
dissenting).3 Were the other Members of this Court as mindful as
they generally are of our system of dual
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., Arndt. 12; 3 U. S. C.
§§ 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, § 4);
Luther v.
Borden, 7 How. 1, 42 (1849).
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, § 4, cl. 1 ... , and allows States
to appoint electors for the President, Art. II, § 1, cl. 2."
U. S.
Term Limits, Inc. v.
Thornton, 514 U. S. 779, 841-842
(1995) (KENNEDY, J., concurring).
143
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, 809 (1969) (even in the context of the right to vote,
the State is permitted to reform "one step at a time") (citing
Williamson v.
Lee Optical of Okla., Inc., 348 U. S. 483, 489
(1955)).
Even if there were an equal protection violation, I would agree
with JUSTICE STEVENS, JUSTICE SOUTER, and JusTICE BREYER that the
Court's concern about the December 12 date,
ante, at
110-111, 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 106-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
155 (dissenting opinion), the December 12 date for bringing
Florida's electoral votes into 3 U. S. C. § 5's safe harbor lacks
the significance the Court assigns it. Were that date to pass,
Florida would still be entitled to deliver electoral votes Congress
must count unless both Houses find that the votes "ha[d] not
been ... regularly given." 3 U. S. C. § 15. The statute identifies
other significant dates. See,
e. g., § 7 (spec-
144
ifying December 18 as the date electors "shall meet and give
their votes"); § 12 (specifying "the fourth Wednesday in
December"-this year, December 27-as the date on which Congress, if
it has not received a State's electoral votes, shall request the
state secretary of state to send a certified return immediately).
But none of these dates has ultimate significance in light of
Congress' detailed provisions for determining, on "the sixth day of
January," the validity of electoral votes. § 15.
The Court assumes that time will not permit "orderly judicial
review of any disputed matters that might arise."
Ante, at
110. But no one has doubted the good faith and diligence with which
Florida election officials, attorneys for all sides of this
controversy, and the courts of law have performed their duties.
Notably, the Florida Supreme Court has produced two substantial
opinions within 29 hours of oral argument. In sum, the Court's
conclusion that a constitutionally adequate recount is impractical
is a prophecy the Court's own judgment will not allow to be tested.
Such an untested prophecy should not decide the Presidency of the
United States.
I dissent.
JUSTICE BREYER, with whom JUSTICE STEVENS and JusTICE GINSBURG
join except as to Part I-A-l, 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.
145
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 ordi-
146
nary judicial review, and since the relevant distinction was
embodied in the order of the State's highest court, I agree that,
in these very special circumstances, basic principles of fairness
should have counseled the adoption of a uniform standard to address
the problem. In light of the majority's disposition, I need not
decide whether, or the extent to which, as a remedial matter, the
Constitution would place limits upon the content of the uniform
standard.
2
Nonetheless, there is no justification for the majority's
remedy, which is simply to reverse the lower court and halt the
recount entirely. An appropriate remedy would be, instead, to
remand this case with instructions that, even at this late date,
would permit the Florida Supreme Court to require recounting
all undercounted votes in Florida, including those from
Broward, Volusia, Palm Beach, and MiamiDade Counties, whether or
not previously recounted prior to the end of the protest period,
and to do so in accordance with a single uniform standard.
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 of State (Secretary)
to review and approve equipment needed to separate undervotes. But
the majority reaches this conclusion in the absence of
any
record evidence that the recount could not have been completed in
the time allowed by the Florida Supreme Court. The majority finds
facts outside of the record on matters that state courts are in a
far better position to address. Of course, it is too late for any
such recount to take place by December 12, the date by which
election disputes must be decided if a State is to take advantage
of the safe harbor provisions of 3 U. S. C. § 5. Whether there is
time to conduct a recount prior to December 18, when the electors
are scheduled to meet, is a matter for the state courts to
determine. And whether, under Florida law, Flor-
147
ida could or could not take further action is obviously a matter
for Florida courts, not this Court, to decide. See
ante, at
111 (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 126, and n. 4 (dissenting opinion), the
ballots of voters in counties that use punchcard 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 punchcard 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 135-143 (GINSBURG,
J., dissenting), is justified by reference either to Art. II, § 1,
or to 3 U. S. C. § 5. Moreover, even were such
148
review proper, the conclusion that the Florida Supreme Court's
decision contravenes federal law is untenable.
While conceding that, in most cases, "comity and respect for
federalism compel us to defer to the decisions of state courts on
issues of state law," the concurrence relies on some combination of
Art. II, § 1, and 3 U. S. C. § 5 to justify its conclusion that
this case is one of the few in which we may lay that fundamental
principle aside.
Ante, at 112 (opinion of REHNQUIST, C. J.).
The concurrence's primary foundation for this conclusion rests on
an appeal to plain text: Art. II, § l'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, § 1Art. I, §
4-in the strained manner put forth in the concurrence.
Ante,
at 123, and n. 1 (dissenting opinion).
The concurrence's treatment of § 5 as "inform[ing]" its
interpretation of Article II, § 1, cl. 2,
ante, at 113
(opinion of REHNQUIST, C. J.), is no more convincing. THE CHIEF
JusTICE contends that our opinion in
Bush v.
Palm Beach
County Canvassing Bd., ante, p. 70
(per curiam) (Bush
1), in which we stated that "a legislative wish to take
advantage of [§ 5] would counsel against" a construction of Florida
law that Congress might deem to be a change in law,
ante, at
78, now means that
this Court "must ensure that postelection
state-court actions do not frustrate the legislative desire to
attain the 'safe harbor' provided by § 5."
Ante, at 113.
However, § 5 is part of the rules that govern Congress' recognition
of slates of electors. Nowhere in
Bush I did we
149
establish that
this Court had the authority to enforce §
5. Nor did we suggest that the permissive "counsel against" could
be transformed into the mandatory "must ensure." And nowhere did we
intimate, as the concurrence does here, that a state-court decision
that threatens the safe harbor provision of § 5 does so in
violation of Article II. The concurrence's logic turns the
presumption that legislatures would wish to take advantage of § 5's
"safe harbor" provision into a mandate that trumps other statutory
provisions and overrides the intent that the legislature did
express.
But, in any event, the concurrence, having conducted its review,
now reaches the wrong conclusion. It says that "the Florida Supreme
Court's interpretation of the Florida election laws impermissibly
distorted them beyond what a fair reading required, in violation of
Article II."
Ante, at 115 (opinion of REHNQUIST, C. J.). 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. Ann. § 102.166 (Supp. 2001)
(foreseeing manual recounts during the protest period) with §
102.111 (setting what is arguably too short a deadline for manual
recounts to be conducted); compare § 102.112(1) (stating that the
Secretary "may" ignore late returns) with § 102.111(1) (stating
that the Secretary "shall" ignore late returns). In any event, that
issue no longer has
150
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[ion]" once one understands that there are two sides to the
opinion's argument that the Florida Supreme Court "virtually
eliminat[ed] the Secretary's discretion."
Ante, at 115, 118
(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. Ann. §§ 102.168(3), (3)(c) (Supp. 2001). 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. Ann.
§ 101.5614(5) (Supp. 2001). Given
151
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 152, 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, 772
So. 2d 1243, 1254 (2000). 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 result[s]" 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 1260. 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
152
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.
Ann. § 102.168(8) (Supp. 2001) (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. 455, 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 112
(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
153
provlSlon 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 roadmap of how to
resolve disputes about electors, even after an election as close as
this one. That roadmap foresees resolution of electoral disputes by
state courts. See 3 U. S. C. § 5 (providing that, where a
"State shall have provided, by laws enacted prior to [election
day], for its final determination of any controversy or contest
concerning the appointment of ... electors ... by
judicial
or other methods," the subsequently chosen electors enter a safe
harbor free from congressional challenge). But it nowhere provides
for involvement by the United States Supreme Court.
To the contrary, the Twelfth Amendment commits to Congress the
authority and responsibility to count electoral votes. A federal
statute, the Electoral Count Act, enacted
154
after the close 1876 Hayes-Tilden Presidential election,
specifies that, after States have tried to resolve disputes
(through "judicial" or other means), Congress is the body primarily
authorized to resolve remaining disputes. See Electoral Count Act
of 1887, 24 Stat. 373, 3 U. S. C. §§ 5, 6, and 15.
The legislative history of the Act makes clear its intent to
commit the power to resolve such disputes to Congress, rather than
the courts:
"The two Houses are, by the Constitution, authorized to make the
count of electoral votes. They can only count legal votes, and in
doing so must determine, from the best evidence to be had, what are
legal votes ....
"The power to determine rests with the two houses, and there is
no other constitutional tribunal." H. R. 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 Congo Rec. 30 (1886)
(remarks of Rep. Caldwell).
"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.
155
The Act goes on to set out rules for the congressional
determination of disputes about those votes. If, for example, a
State submits a single slate of electors, Congress must count those
votes unless both Houses agree that the votes "have not been ...
regularly given." 3 U. S. C. § 15. If, as occurred in 1876, a State
submits two slates of electors, then Congress must determine
whether a slate has entered the safe harbor of § 5, in which case
its votes will have "conclusive" effect.
Ibid. If, as also
occurred in 1876, there is controversy about "which of two or more
of such State authorities ... is the lawful tribunal" authorized to
appoint electors, then each House shall determine separately which
votes are "supported by the decision of such State so authorized by
its law."
Ibid. If the two Houses of Congress agree, the
votes they have approved will be counted. If they disagree, then
"the votes of the electors whose appointment shall have been
certified by the executive of the State, under the seal thereof,
shall be counted."
Ibid.
Given this detailed, comprehensive scheme for counting electoral
votes, there is no reason to believe that federal law either
foresees or requires resolution of such a political issue by this
Court. Nor, for that matter, is there any reason to think that the
Constitution's Framers would have reached a different conclusion.
Madison, at least, believed that allowing the judiciary to choose
the Presidential electors "was out of the question." Madison, July
25, 1787 (reprinted in 5 Elliot's Debates on the Federal
Constitution 363 (2d ed. 1876)).
The decision by both the Constitution's Framers and the 1886
Congress to minimize this Court's role in resolving close federal
Presidential elections is as wise as it is clear. However awkward
or difficult it may be for Congress to resolve difficult electoral
disputes, Congress, being a political body, expresses the people's
will far more accurately than does an unelected Court. And the
people's will is what elections are about.
156
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
The Commission divided along partisan lines, and the
responsibility to cast the deciding vote fell to Justice Bradley.
He decided to accept the votes of the Republican electors, and
thereby awarded the Presidency to Hayes.
Justice Bradley immediately became the subject of vociferous
attacks. Bradley was accused of accepting bribes, of being captured
by railroad interests, and of an eleventh-hour change in position
after a night in which his house "was surrounded by the carriages"
of Republican partisans and railroad officials. C. Woodward,
Reunion and Reaction 159-160 (1966). Many years later, Professor
Bickel concluded that Bradley was honest and impartial. He thought
that "'the great question' for Bradley was, in fact, whether
Congress was entitled to go behind election returns or had to
accept them as certified by state authorities," an "issue of
principle." The Least Dangerous Branch 185 (1962). Nonetheless,
Bickel points out, the legal question upon which Justice
157
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."
Id., 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
158
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!" D. Loth,
Chief Justice John Marshall and The Growth of the American Republic
365 (1948). But we do risk a self-inflicted wound-a wound that may
harm not just the Court, but the Nation.
I fear that in order to bring this agonizingly long election
process to a definitive conclusion, we have not adequately attended
to that necessary "check upon our own exercise of power," "our own
sense of self-restraint."
United States v.
Butler,
297 U. S. 1, 79
(1936) (Stone, J., dissenting). Justice Brandeis once said of the
Court, "The most important thing we do is not doing." Bickel,
supra, at 71. What it does today, the Court should have left
undone. I would repair the damage as best we now can, by permitting
the Florida recount to continue under uniform standards.
I respectfully dissent.
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