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GEORGE W. BUSH et al. v. ALBERT GORE, J r . et al .

on application for stay

[December 9, 2000]

The application for stay presented to Justice Kennedy and by him referred to the Court is granted, and it is ordered that the mandate of the Florida Supreme Court, case No. SC00-2431, is hereby stayed pending further order of the Court. In addition, the application for stay is treated as a petition for a writ of certiorari, and the petition for a writ of certiorari is granted. The briefs of the parties, not to exceed 50 pages, are to be filed with the Clerk and served upon opposing counsel on or before 4 p.m. Sunday, December 10, 2000. Rule 29.2 is suspended in this case. Briefs may be filed in compliance with Rule 33.2 to be replaced as soon as possible with briefs prepared in compliance with Rule 33.1. The case is set for oral argument on Monday, December 11, 2000, at 11 a.m., and a total of 1 1 / 2 hours is allotted for oral argument.

Justice Scalia , concurring.

Though it is not customary for the Court to issue an opinion in connection with its grant of a stay, I believe a brief response is necessary to Justice Stevens ’ dissent. I will not address the merits of the case, since they will shortly be before us in the petition for certiorari that we have granted. It suffices to say that the issuance of the stay suggests that a majority of the Court, while not deciding the issues presented, believe that the petitioner has a substantial probability of success.

On the question of irreparable harm, however, a few words are appropriate. The issue is not, as the dissent puts it, whether “[c]ounting every legally cast vote ca[n] constitute irreparable harm.” One of the principal issues in the appeal we have accepted is precisely whether the votes that have been ordered to be counted are, under a reasonable interpretation of Florida law, “legally cast vote[s].” The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election. Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires. Another issue in the case, moreover, is the propriety, indeed the constitutionality, of letting the standard for determination of voters’ intent—dimpled chads, hanging chads, etc.—vary from county to county, as the Florida Supreme Court opinion, as interpreted by the Circuit Court, permits. If petitioner is correct that counting in this fashion is unlawful, permitting the count to proceed on that erroneous basis will prevent an accurate recount from being conducted on a proper basis later, since it is generally agreed that each manual recount produces a degradation of the ballots, which renders a subsequent recount inaccurate.

For these reasons I have joined the Court’s issuance of stay, with a highly accelerated timetable for resolving this case on the merits.



ALBERT GORE, Jr., et al.

on writ of certiorari to the florida supreme court

[December 12, 2000]

Per Curiam .


On December 8, 2000, the Supreme Court of Florida ordered that the Circuit Court of Leon County tabulate by hand 9,000 ballots in Miami-Dade County. It also ordered the inclusion in the certified vote totals of 215 votes identified in Palm Beach County and 168 votes identified in Miami-Dade County for Vice President Albert Gore, Jr., and Senator Joseph Lieberman, Democratic Candidates for President and Vice President. The Supreme Court noted that petitioner, Governor George W. Bush asserted that the net gain for Vice President Gore in Palm Beach County was 176 votes, and directed the Circuit Court to resolve that dispute on remand. ___ So. 2d, at ___ (slip op., at 4, n. 6). The court further held that relief would require manual recounts in all Florida counties where so-called “undervotes” had not been subject to manual tabulation. The court ordered all manual recounts to begin at once. Governor Bush and Richard Cheney, Republican Candidates for the Presidency and Vice Presidency, filed an emergency application for a stay of this mandate. On December 9, we granted the application, treated the application as a petition for a writ of certiorari, and granted certiorari. Post, p. ___.

The proceedings leading to the present controversy are discussed in some detail in our opinion in Bush v. Palm Beach County Canvassing Bd., ante, p. ____ (per curiam) (Bush I) . On November 8, 2000, the day following the Presidential election, the Florida Division of Elections reported that petitioner, Governor Bush, had received 2,909,135 votes, and respondent, Vice President Gore, had received 2,907,351 votes, a margin of 1,784 for Governor Bush. Because Governor Bush’s margin of victory was less than “one-half of a percent . . . of the votes cast,” an automatic machine recount was conducted under §102.141(4) of the election code, the results of which showed Governor Bush still winning the race but by a diminished margin. Vice President Gore then sought manual recounts in Volusia, Palm Beach, Broward, and Miami-Dade Counties, pursuant to Florida’s election protest provisions. Fla. Stat. §102.166 (2000). A dispute arose concerning the deadline for local county canvassing boards to submit their returns to the Secretary of State (Secretary). The Secretary declined to waive the November 14 deadline imposed by statute. §§102.111, 102.112. The Florida Supreme Court, however, set the deadline at November 26. We granted certiorari and vacated the Florida Supreme Court’s decision, finding considerable uncertainty as to the grounds on which it was based. Bush I, ante, at ___–___ (slip. op., at 6–7). On December 11, the Florida Supreme Court issued a decision on remand reinstating that date. ___ So. 2d ___, ___ (slip op. at 30–31).

On November 26, the Florida Elections Canvassing Commission certified the results of the election and declared Governor Bush the winner of Florida’s 25 electoral votes. On November 27, Vice President Gore, pursuant to Florida’s contest provisions, filed a complaint in Leon County Circuit Court contesting the certification. Fla. Stat. §102.168 (2000). He sought relief pursuant to §102.168(3)(c), which provides that “[r]eceipt of a number of illegal votes or rejection of a number of legal votes sufficient to change or place in doubt the result of the election” shall be grounds for a contest. The Circuit Court denied relief, stating that Vice President Gore failed to meet his burden of proof. He appealed to the First District Court of Appeal, which certified the matter to the Florida Supreme Court.

Accepting jurisdiction, the Florida Supreme Court affirmed in part and reversed in part. Gore v. Harris, ___ So. 2d. ____ (2000). The court held that the Circuit Court had been correct to reject Vice President Gore’s challenge to the results certified in Nassau County and his challenge to the Palm Beach County Canvassing Board’s determination that 3,300 ballots cast in that county were not, in the statutory phrase, “legal votes.”

The Supreme Court held that Vice President Gore had satisfied his burden of proof under §102.168(3)(c) with respect to his challenge to Miami-Dade County’s failure to tabulate, by manual count, 9,000 ballots on which the machines had failed to detect a vote for President (“undervotes”). ___ So. 2d., at ___ (slip. op., at 22–23). Noting the closeness of the election, the Court explained that “[o]n this record, there can be no question that there are legal votes within the 9,000 uncounted votes sufficient to place the results of this election in doubt.” Id ., at ___ (slip. op., at 35). A “legal vote,” as determined by the Supreme Court, is “one in which there is a ‘clear indication of the intent of the voter. ’ ” Id ., at ____ (slip op., at 25). The court therefore ordered a hand recount of the 9,000 ballots in Miami-Dade County. Observing that the contest provisions vest broad discretion in the circuit judge to “provide any relief appropriate under such circumstances,” Fla. Stat. §102.168(8) (2000), the Supreme Court further held that the Circuit Court could order “the Supervisor of Elections and the Canvassing Boards, as well as the necessary public officials, in all counties that have not conducted a manual recount or tabulation of the undervotes … to do so forthwith, said tabulation to take place in the individual counties where the ballots are located.” ____ So. 2d, at ____ (slip. op., at 38).

The Supreme Court also determined that both Palm Beach County and Miami-Dade County, in their earlier manual recounts, had identified a net gain of 215 and 168 legal votes for Vice President Gore. Id., at ___ (slip. op., at 33–34). Rejecting the Circuit Court’s conclusion that Palm Beach County lacked the authority to include the 215 net votes submitted past the November 26 deadline, the Supreme Court explained that the deadline was not intended to exclude votes identified after that date through ongoing manual recounts. As to Miami-Dade County, the Court concluded that although the 168 votes identified were the result of a partial recount, they were “legal votes [that] could change the outcome of the election.” Id ., at (slip op., at 34). The Supreme Court therefore directed the Circuit Court to include those totals in the certified results, subject to resolution of the actual vote total from the Miami-Dade partial recount.

The petition presents the following questions: whether the Florida Supreme Court established new standards for resolving Presidential election contests, thereby violating Art. II, §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.



The closeness of this election, and the multitude of legal challenges which have followed in its wake, have brought into sharp focus a common, if heretofore unnoticed, phenomenon. Nationwide statistics reveal that an estimated 2% of ballots cast do not register a vote for President for whatever reason, including deliberately choosing no candidate at all or some voter error, such as voting for two candidates or insufficiently marking a ballot. See Ho, More Than 2M Ballots Uncounted, AP Online (Nov. 28, 2000); Kelley, Balloting Problems Not Rare But Only In A Very Close Election Do Mistakes And Mismarking Make A Difference, Omaha World-Herald (Nov. 15, 2000). In certifying election results, the votes eligible for inclusion in the certification are the votes meeting the properly established legal requirements.

This case has shown that punch card balloting machines can produce an unfortunate number of ballots which are not punched in a clean, complete way by the voter. After the current counting, it is likely legislative bodies nationwide will examine ways to improve the mechanisms and machinery for voting.


The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College. U. S. Const., Art. II, §1. This is the source for the statement in McPherson v. Blacker , 146 U. S. 1, 35 (1892) , that the State legislature’s power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself, which indeed was the manner used by State legislatures in several States for many years after the Framing of our Constitution. Id ., at 28–33. History has now favored the voter, and in each of the several States the citizens themselves vote for Presidential electors. When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter. The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors. See id., at 35 (“[T]here is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated”) (quoting S. Rep. No. 395, 43d Cong., 1st Sess.).

The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another. See, e.g., Harper v. Virginia Bd. of Elections, 383 U. S. 663, 665 (1966) (“[O]nce the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment”). It must be remembered that “the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” Reynolds v. Sims , 377 U. S. 533, 555 (1964) .

There is no difference between the two sides of the present controversy on these basic propositions. Respondents say that the very purpose of vindicating the right to vote justifies the recount procedures now at issue. The question before us, however, is whether the recount procedures the Florida Supreme Court has adopted are consistent with its obligation to avoid arbitrary and disparate treatment of the members of its electorate.

Much of the controversy seems to revolve around ballot cards designed to be perforated by a stylus but which, either through error or deliberate omission, have not been perforated with sufficient precision for a machine to count them. In some cases a piece of the card—a chad—is hanging, say by two corners. In other cases there is no separation at all, just an indentation.

The Florida Supreme Court has ordered that the intent of the voter be discerned from such ballots. For purposes of resolving the equal protection challenge, it is not necessary to decide whether the Florida Supreme Court had the authority under the legislative scheme for resolving election disputes to define what a legal vote is and to mandate a manual recount implementing that definition. The recount mechanisms implemented in response to the decisions of the Florida Supreme Court do not satisfy the minimum requirement for non-arbitrary treatment of voters necessary to secure the fundamental right. Florida’s basic command for the count of legally cast votes is to consider the “intent of the voter.” Gore v. Harris , ___ So. 2d, at ___ (slip op., at 39). This is unobjectionable as an abstract proposition and a starting principle. The problem inheres in the absence of specific standards to ensure its equal application. The formulation of uniform rules to determine intent based on these recurring circumstances is practicable and, we conclude, necessary.

The law does not refrain from searching for the intent of the actor in a multitude of circumstances; and in some cases the general command to ascertain intent is not susceptible to much further refinement. In this instance, however, the question is not whether to believe a witness but how to interpret the marks or holes or scratches on an inanimate object, a piece of cardboard or paper which, it is said, might not have registered as a vote during the machine count. The factfinder confronts a thing, not a person. The search for intent can be confined by specific rules designed to ensure uniform treatment.

The want of those rules here has led to unequal evaluation of ballots in various respects. See Gore v. Harris, ___ So. 2d, at ___ (slip op., at 51) (Wells, J., dissenting) (“Should a county canvassing board count or not count a ‘dimpled chad’ where the voter is able to successfully dislodge the chad in every other contest on that ballot? Here, the county canvassing boards disagree”). As seems to have been acknowledged at oral argument, the standards for accepting or rejecting contested ballots might vary not only from county to county but indeed within a single county from one recount team to another.

The record provides some examples. A monitor in Miami-Dade County testified at trial that he observed that three members of the county canvassing board applied different standards in defining a legal vote. 3 Tr. 497, 499 (Dec. 3, 2000). And testimony at trial also revealed that at least one county changed its evaluative standards during the counting process. Palm Beach County, for example, began the process with a 1990 guideline which precluded counting completely attached chads, switched to a rule that considered a vote to be legal if any light could be seen through a chad, changed back to the 1990 rule, and then abandoned any pretense of a per se rule, only to have a court order that the county consider dimpled chads legal. This is not a process with sufficient guarantees of equal treatment.

An early case in our one person, one vote jurisprudence arose when a State accorded arbitrary and disparate treatment to voters in its different counties. Gray v. Sanders , 372 U. S. 368 (1963) . The Court found a constitutional violation. We relied on these principles in the context of the Presidential selection process in Moore v. Ogilvie, 394 U. S. 814 (1969) , where we invalidated a county-based procedure that diluted the influence of citizens in larger counties in the nominating process. There we observed that “[t]he idea that one group can be granted greater voting strength than another is hostile to the one man, one vote basis of our representative government.” Id., at 819.

The State Supreme Court ratified this uneven treatment . It mandated that the recount totals from two counties, Miami-Dade and Palm Beach, be included in the certified total. The court also appeared to hold sub silentio that the recount totals from Broward County, which were not completed until after the original November 14 certification by the Secretary of State, were to be considered part of the new certified vote totals even though the county certification was not contested by Vice President Gore. Yet each of the counties used varying standards to determine what was a legal vote. Broward County used a more forgiving standard than Palm Beach County, and uncovered almost three times as many new votes, a result markedly disproportionate to the difference in population between the counties.

In addition, the recounts in these three counties were not limited to so-called undervotes but extended to all of the ballots. The distinction has real consequences. A manual recount of all ballots identifies not only those ballots which show no vote but also those which contain more than one, the so-called overvotes. Neither category will be counted by the machine. This is not a trivial concern. At oral argument, respondents estimated there are as many as 110,000 overvotes statewide. As a result, the citizen whose ballot was not read by a machine because he failed to vote for a candidate in a way readable by a machine may still have his vote counted in a manual recount; on the other hand, the citizen who marks two candidates in a way discernable by the machine will not have the same opportunity to have his vote count, even if a manual examination of the ballot would reveal the requisite indicia of intent. Furthermore, the citizen who marks two candidates, only one of which is discernable by the machine, will have his vote counted even though it should have been read as an invalid ballot. The State Supreme Court’s inclusion of vote counts based on these variant standards exemplifies concerns with the remedial processes that were under way.

That brings the analysis to yet a further equal protection problem. The votes certified by the court included a partial total from one county, Miami-Dade. The Florida Supreme Court’s decision thus gives no assurance that the recounts included in a final certification must be complete. Indeed, it is respondent’s submission that it would be consistent with the rules of the recount procedures to include whatever partial counts are done by the time of final certification, and we interpret the Florida Supreme Court’s decision to permit this. See ____ So. 2d, at ____, n. 21 (slip op., at 37, n. 21) (noting “practical difficulties” may control outcome of election, but certifying partial Miami-Dade total nonetheless). This accommodation no doubt results from the truncated contest period established by the Florida Supreme Court in Bush I , at respondents’ own urging. The press of time does not diminish the constitutional concern. A desire for speed is not a general excuse for ignoring equal protection guarantees.

In addition to these difficulties the actual process by which the votes were to be counted under the Florida Supreme Court’s decision raises further concerns. That order did not specify who would recount the ballots. The county canvassing boards were forced to pull together ad hoc teams comprised of judges from various Circuits who had no previous training in handling and interpreting ballots. Furthermore, while others were permitted to observe, they were prohibited from objecting during the recount.

The recount process, in its features here described, is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the special instance of a statewide recount under the authority of a single state judicial officer. Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.

The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections. Instead, we are presented with a situation where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards. When a court orders a statewide remedy, there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied.

Given the Court's assessment that the recount process underway was probably being conducted in an unconstitutional manner, the Court stayed the order directing the recount so it could hear this case and render an expedited decision. The contest provision, as it was mandated by the State Supreme Court, is not well calculated to sustain the confidence that all citizens must have in the outcome of elections. The State has not shown that its procedures include the necessary safeguards. The problem, for instance, of the estimated 110,000 overvotes has not been addressed, although Chief Justice Wells called attention to the concern in his dissenting opinion. See ____ So. 2d, at ____, n. 26 (slip op., at 45, n. 26).

Upon due consideration of the difficulties identified to this point, it is obvious that the recount cannot be conducted in compliance with the requirements of equal protection and due process without substantial additional work. It would require not only the adoption (after opportunity for argument) of adequate statewide standards for determining what is a legal vote, and practicable procedures to implement them, but also orderly judicial review of any disputed matters that might arise. In addition, the Secretary of State has advised that the recount of only a portion of the ballots requires that the vote tabulation equipment be used to screen out undervotes, a function for which the machines were not designed. If a recount of overvotes were also required, perhaps even a second screening would be necessary. Use of the equipment for this purpose, and any new software developed for it, would have to be evaluated for accuracy by the Secretary of State, as required by Fla. Stat. §101.015 (2000).

The Supreme Court of Florida has said that the legislature intended the State’s electors to “participat[e] fully in the federal electoral process,” as provided in 3 U. S. C. §5. ___ So. 2d, at ___ (slip op. at 27); see also Palm Beach Canvassing Bd. v. Harris , 2000 WL 1725434, *13 (Fla. 2000). That statute, in turn, requires that any controversy or contest that is designed to lead to a conclusive selection of electors be completed by December 12. That date is upon us, and there is no recount procedure in place under the State Supreme Court’s order that comports with minimal constitutional standards. Because it is evident that any recount seeking to meet the December 12 date will be unconstitutional for the reasons we have discussed, we reverse the judgment of the Supreme Court of Florida ordering a recount to proceed.

Seven Justices of the Court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy. See post, at 6 ( Souter, J., dissenting); post , at 2, 15 ( Breyer, J., dissenting). The only disagreement is as to the remedy. Because the Florida Supreme Court has said that the Florida Legislature intended to obtain the safe-harbor benefits of 3 U. S. C. §5, Justice Breyer’ s proposed remedy—remanding to the Florida Supreme Court for its ordering of a constitutionally proper contest until December 18-contemplates action in violation of the Florida election code, and hence could not be part of an “appropriate” order authorized by F la . S tat. §102.168(8) (2000).

* * *

None are more conscious of the vital limits on judicial authority than are the members of this Court, and none stand more in admiration of the Constitution’s design to leave the selection of the President to the people, through their legislatures, and to the political sphere. When contending parties invoke the process of the courts, however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront.

The judgment of the Supreme Court of Florida is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

Pursuant to this Court’s Rule 45.2, the Clerk is directed to issue the mandate in this case forthwith.

It is so ordered.



ALBERT GORE, Jr., et al.

on writ of certiorari to the florida supreme court

[December 12, 2000]

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 pursuant to Article V of the Florida Constitution, and nothing in Article II of the Federal Constitution frees the state legislature from the constraints in the state constitution that created it. Moreover, the Florida Legislature’s own decision to employ a unitary code for all elections indicates that it intended the Florida Supreme Court to play the same role in Presidential elections that it has historically played in resolving electoral disputes. The Florida Supreme Court’s exercise of appellate jurisdiction therefore was wholly consistent with, and indeed contemplated by, the grant of authority in Article II.

It hardly needs stating that Congress, pursuant to 3 U. S. C. §5, did not impose any affirmative duties upon the States that their governmental branches could “violate.” Rather, §5 provides a safe harbor for States to select electors in contested elections “by judicial or other methods” established by laws prior to the election day. Section 5, like Article II, assumes the involvement of the state judiciary in interpreting state election laws and resolving election disputes under those laws. Neither §5 nor Article II grants federal judges any special authority to substitute their views for those of the state judiciary on matters of state law.

Nor are petitioners correct in asserting that the failure of the Florida Supreme Court to specify in detail the precise manner in which the “intent of the voter,” Fla. Stat. §101.5614(5) (Supp. 2001), is to be determined rises to the level of a constitutional violation. 2 We found such a violation when individual votes within the same State were weighted unequally, see, e.g., Reynolds v. Sims , 377 U. S. 533, 568 (1964) , but we have never before called into question the substantive standard by which a State determines that a vote has been legally cast. And there is no reason to think that the guidance provided to the factfinders, specifically the various canvassing boards, by the “intent of the voter” standard is any less sufficient—or will lead to results any less uniform—than, for example, the “beyond a reasonable doubt” standard employed everyday by ordinary citizens in courtrooms across this country. 3

Admittedly, the use of differing substandards for determining voter intent in different counties employing similar voting systems may raise serious concerns. Those concerns are alleviated—if not eliminated—by the fact that a single impartial magistrate will ultimately adjudicate all objections arising from the recount process. Of course, as a general matter, “[t]he interpretation of constitutional principles must not be too literal. We must remember that the machinery of government would not work if it were not allowed a little play in its joints.” Bain Peanut Co. of Tex. v. Pinson , 282 U. S. 499, 501 (1931) (Holmes, J.). If it were otherwise, Florida’s decision to leave to each county the determination of what balloting system to employ—despite enormous differences in accuracy 4 —might run afoul of equal protection. So, too, might the similar decisions of the vast majority of state legislatures to delegate to local authorities certain decisions with respect to voting systems and ballot design.

Even assuming that aspects of the remedial scheme might ultimately be found to violate the Equal Protection Clause, I could not subscribe to the majority’s disposition of the case. As the majority explicitly holds, once a state legislature determines to select electors through a popular vote, the right to have one’s vote counted is of constitutional stature. As the majority further acknowledges, Florida law holds that all ballots that reveal the intent of the voter constitute valid votes. Recognizing these principles, the majority nonetheless orders the termination of the contest proceeding before all such votes have been tabulated. Under their own reasoning, the appropriate course of action would be to remand to allow more specific procedures for implementing the legislature’s uniform general standard to be established.

In the interest of finality, however, the majority effectively orders the disenfranchisement of an unknown number of voters whose ballots reveal their intent—and are therefore legal votes under state law—but were for some reason rejected by ballot-counting machines. It does so on the basis of the deadlines set forth in Title 3 of the United States Code. Ante , at 11. But, as I have already noted, those provisions merely provide rules of decision for Congress to follow when selecting among conflicting slates of electors. Supra , at 2. They do not prohibit a State from counting what the majority concedes to be legal votes until a bona fide winner is determined. Indeed, in 1960, Hawaii appointed two slates of electors and Congress chose to count the one appointed on January 4, 1961, well after the Title 3 deadlines. See Josephson & Ross, Repairing the Electoral College, 22 J. Legis. 145, 166, n. 154 (1996). 5 Thus, nothing prevents the majority, even if it properly found an equal protection violation, from ordering relief appropriate to remedy that violation without depriving Florida voters of their right to have their votes counted. As the majority notes, “[a] desire for speed is not a general excuse for ignoring equal protection guarantees.” Ante , at 10.

Finally, neither in this case, nor in its earlier opinion in Palm Beach County Canvassing Bd. v. Harris, 2000 WL 1725434 (Fla., Nov. 21, 2000), did the Florida Supreme Court make any substantive change in Florida electoral law. 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 do—that the members of that court and the judges who would have carried out its mandate are impartial, its decision does not even raise a colorable federal question.

What must underlie petitioners’ entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.

I respectfully dissent.


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 367. 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.

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. Comp. 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. §1–7–309(1) (1999) (standard for paper ballots), §1–7–508(2) (standard for electronic ballots); Del. Code Ann., Tit. 15, §4972(4) (1999); Idaho Code §34–1203 (1981); Ill. Comp. Stat., ch. 10, §5/7–51 (1993) (standard for primaries), id., ch. 10, §5/17–16 (1993) (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); 26 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”).

4 The percentage of nonvotes in this election in counties using a punch-card system was 3.92%; in contrast, the rate of error under the more modern optical-scan systems was only 1.43%. Siegel v. LePore, No. 00–15981, 2000 WL 1781946, *31, *32, *43 (charts C and F) (CA11, Dec. 6, 2000). Put in other terms, for every 10,000 votes cast, punch-card systems result in 250 more nonvotes than optical-scan systems. A total of 3,718,305 votes were cast under punch-card systems, and 2,353,811 votes were cast under optical-scan systems. Ibid.

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.

6 When, for example, it resolved the previously unanswered question whether the word “shall” in Fla. Stat. §102.111 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 U. S. 298, 312–313 (1994) .

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).



ALBERT GORE, Jr., et al.

on writ of certiorari to the florida supreme court

[December 12, 2000]

Justice Souter , with whom Justice Breyer joins and with whom Justice Stevens and Justice Ginsburg join with regard to all but Part C, dissenting.

The Court should not have reviewed either Bush v. Palm Beach County Canvassing Bd., ante, p. ___ ( per curiam ), or this case, and should not have stopped Florida’s attempt to recount all undervote ballots, see ante at ___, by issuing a stay of the Florida Supreme Court’s orders during the period of this review, see Bush v. Gore, post at ____ (slip op., at 1). If this Court had allowed the State to follow the course indicated by the opinions of its own Supreme Court, it is entirely possible that there would ultimately have been no issue requiring our review, and political tension could have worked itself out in the Congress following the procedure provided in 3 U. S. C. §15. The case being before us, however, its resolution by the majority is another erroneous decision.

As will be clear, I am in substantial agreement with the dissenting opinions of Justice Stevens , Justice Ginsburg and Justice Breyer . I write separately only to say how straightforward the issues before us really are.

There are three issues: whether the State Supreme Court’s interpretation of the statute providing for a contest of the state election results somehow violates 3 U. S. C. §5; whether that court’s construction of the state statutory provisions governing contests 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 due process guaranteed by the Fourteenth Amendment. None of these issues is difficult to describe or to resolve.


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.


The second matter here goes to the State Supreme Court’s interpretation of certain terms in the state statute governing election “contests,” Fla. Stat. §102.168 (2000); there is no question here about the state court’s interpretation of the related provisions dealing with the antecedent process of “protesting” particular vote counts, §102.166, which was involved in the previous case, Bush v. Palm Beach County Canvassing Board . The issue is whether the judgment of the state supreme court has displaced the state legislature’s provisions for election contests: is the law as declared by the court different from the provisions made by the legislature, to which the national Constitution commits responsibility for determining how each State’s Presidential electors are chosen? See U. S. Const., Art. II, §1, cl. 2. Bush does not, of course, claim that any judicial act interpreting a statute of uncertain meaning is enough to displace the legislative provision and violate Article II; statutes require interpretation, which does not without more affect the legislative character of a statute within the meaning of the Constitution. Brief for Petitioners 48, n. 22, in Bush v. Palm Beach County Canvassing Bd., et al. , 531 U. S. ___ (2000). What Bush does argue, as I understand the contention, is that the interpretation of §102.168 was so unreasonable as to transcend the accepted bounds of statutory interpretation, to the point of being a nonjudicial act and producing new law untethered to the legislative act in question.

The starting point for evaluating the claim that the Florida Supreme Court’s interpretation effectively re-wrote §102.168 must be the language of the provision on which Gore relies to show his right to raise this contest: that the previously certified result in Bush’s favor was produced by “rejection of a number of legal votes sufficient to change or place in doubt the result of the election.” Fla. Stat. §102.168(3)(c) (2000). None of the state court’s interpretations is unreasonable to the point of displacing the legislative enactment quoted. As I will note below, other interpretations were of course possible, and some might have been better than those adopted by the Florida court’s majority; the two dissents from the majority opinion of that court and various briefs submitted to us set out alternatives. But the majority view is in each instance within the bounds of reasonable interpretation, and the law as declared is consistent with Article II.

1. The statute does not define a “legal vote,” the rejection of which may affect the election. The State Supreme Court was therefore required to define it, and in doing that the court looked to another election statute, §101.5614(5), dealing with damaged or defective ballots, which contains a provision that no vote shall be disregarded “if there is a clear indication of the intent of the voter as determined by a canvassing board.” The court read that objective of looking to the voter’s intent as indicating that the legislature probably meant “legal vote” to mean a vote recorded on a ballot indicating what the voter intended. Gore v. Harris , __ So. 2d __ (slip op., at 23–25) (Dec. 8, 2000). It is perfectly true that the majority might have chosen a different reading. See, e.g ., Brief for Respondent Harris et al. 10 (defining “legal votes” as “votes properly executed in accordance with the instructions provided to all registered voters in advance of the election and in the polling places”). But even so, there is no constitutional violation in following the majority view; Article II is unconcerned with mere disagreements about interpretive merits.

2. The Florida court next interpreted “rejection” to determine what act in the counting process may be attacked in a contest. Again, the statute does not define the term. The court majority read the word to mean simply a failure to count. ____ So. 2d, at___ (slip op., at 26–27). That reading is certainly within the bounds of common sense, given the objective to give effect to a voter’s intent if that can be determined. A different reading, of course, is possible. The majority might have concluded that “rejection” should refer to machine malfunction, or that a ballot should not be treated as “reject[ed]” in the absence of wrongdoing by election officials, lest contests be so easy to claim that every election will end up in one. Cf. id., at ____ (slip op., at 48) (Wells, C. J., dissenting). There is, however, nothing nonjudicial in the Florida majority’s more hospitable reading.

3. The same is true about the court majority’s understanding of the phrase “votes sufficient to change or place in doubt” the result of the election in Florida. The court held that if the uncounted ballots were so numerous that it was reasonably possible that they contained enough “legal” votes to swing the election, this contest would be authorized by the statute. 1 While the majority might have thought (as the trial judge did) that a probability, not a possibility, should be necessary to justify a contest, that reading is not required by the statute’s text, which says nothing about probability. Whatever people of good will and good sense may argue about the merits of the Florida court’s reading, there is no warrant for saying that it transcends the limits of reasonable statutory interpretation to the point of supplanting the statute enacted by the “legislature” within the meaning of Article II.

In sum, the interpretations by the Florida court raise no substantial question under Article II. That court engaged in permissible construction in determining that Gore had instituted a contest authorized by the state statute, and it proceeded to direct the trial judge to deal with that contest in the exercise of the discretionary powers generously conferred by Fla. Stat. §102.168(8) (2000), to “fashion such orders as he or she deems necessary to ensure that each allegation in the complaint is investigated, examined, or checked, to prevent or correct any alleged wrong, and to provide any relief appropriate under such circumstances.” As Justice Ginsburg has persuasively explained in her own dissenting opinion, our customary respect for state interpretations of state law counsels against rejection of the Florida court’s determinations in this case.


It is only on the third issue before us that there is a meritorious argument for relief, as this Court’s Per Curiam opinion recognizes. It is an issue that might well have been dealt with adequately by the Florida courts if the state proceedings had not been interrupted, and if not disposed of at the state level it could have been considered by the Congress in any electoral vote dispute. But because the course of state proceedings has been interrupted, time is short, and the issue is before us, I think it sensible for the Court to address it.

Petitioners have raised an equal protection claim (or, alternatively, a due process claim, see generally Logan v. Zimmerman Brush Co. , 455 U. S. 422 (1982) ), in the charge that unjustifiably disparate standards are applied in different electoral jurisdictions to otherwise identical facts. It is true that the Equal Protection Clause does not forbid the use of a variety of voting mechanisms within a jurisdiction, even though different mechanisms will have different levels of effectiveness in recording voters’ intentions; local variety can be justified by concerns about cost, the potential value of innovation, and so on. But evidence in the record here suggests that a different order of disparity obtains under rules for determining a voter’s intent that have been applied (and could continue to be applied) to identical types of ballots used in identical brands of machines and exhibiting identical physical characteristics (such as “hanging” or “dimpled” chads). See, e.g., Tr., at 238–242 (Dec. 2–3, 2000) (testimony of Palm Beach County Canvassing Board Chairman Judge Charles Burton describing varying standards applied to imperfectly punched ballots in Palm Beach County during precertification manual recount); id., at 497–500 (similarly describing varying standards applied in Miami-Dade County); Tr. of Hearing 8–10 (Dec. 8, 2000) (soliciting from county canvassing boards proposed protocols for determining voters’ intent but declining to provide a precise, uniform standard). I can conceive of no legitimate state interest served by these differing treatments of the expressions of voters’ fundamental rights. The differences appear wholly arbitrary.

In deciding what to do about this, we should take account of the fact that electoral votes are due to be cast in six days. I would therefore remand the case to the courts of Florida with instructions to establish uniform standards for evaluating the several types of ballots that have prompted differing treatments, to be applied within and among counties when passing on such identical ballots in any further recounting (or successive recounting) that the courts might order.

Unlike the majority, I see no warrant for this Court to assume that Florida could not possibly comply with this requirement before the date set for the meeting of electors, December 18. Although one of the dissenting justices of the State Supreme Court estimated that disparate standards potentially affected 170,000 votes, Gore v. Harris , supra , ___ So. 2d, at ___ (slip op., at 66), the number at issue is significantly smaller. The 170,000 figure apparently represents all uncounted votes, both undervotes (those for which no Presidential choice was recorded by a machine) and overvotes (those rejected because of votes for more than one candidate). Tr. of Oral Arg. 61–62. But as Justice Breyer has pointed out, no showing has been made of legal overvotes uncounted, and counsel for Gore made an uncontradicted representation to the Court that the statewide total of undervotes is about 60,000. Id., at 62. To recount these manually would be a tall order, but before this Court stayed the effort to do that the courts of Florida were ready to do their best to get that job done. There is no justification for denying the State the opportunity to try to count all disputed ballots now.

I respectfully dissent.


1 When the Florida court ruled, the totals for Bush and Gore were then less than 1,000 votes apart. One dissent pegged the number of uncounted votes in question at 170,000. Gore v. Harris, supra, __ So. 2d __ , (slip op., at 66) (opinion of Harding, J.). Gore’s counsel represented to us that the relevant figure is approximately 60,000, Tr. of Oral Arg. 62, the number of ballots in which no vote for President was recorded by the machines.