No. 00–949
_________________

GEORGE W. BUSH, ET AL., PETITIONERS v.

ALBERT GORE, JR., ET AL.

ON WRIT OF CERTIORARI TO THE FLORIDA SUPREME COURT

[December 12, 2000]

PER CURIAM.

I

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

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.

In certifying election results, the votes eligible for inclusion
in the certification are the votes meeting the properly
established legal requirements.

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

B

The individual citizen has no federal constitutional right
to vote for electors for the President of the United States
unless and until the state legislature chooses a statewide
election as the means to implement its power to appoint
members of the Electoral College.  U. S. Const., Art. II, §1.
 

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.

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.

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

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...

The Florida Supreme Court has ordered that the intent
of the voter be discerned from such ballots. Florida’s
basic command for the count of legally cast votes is to
consider the “intent of the voter.”   Gore v. Harris

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 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.  The State Supreme Court
ratified this uneven treatment.

A desire for speed is not a general excuse for ignoring
equal protection guarantees.

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.

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.

The only disagreement is as to the remedy.

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.

It is so ordered.

CHIEF JUSTICE REHNQUIST, with whom JUSTICE SCALIA
and JUSTICE THOMAS join, concurring.

Florida statutory law cannot reasonably be thought to require
the counting of improperly marked ballots.

Each Florida precinct before election day provides instructions on
how properly to cast a vote, each polling place on election day
contains a working model of the voting machine it uses,
and each voting booth contains a sample ballot.  In precincts
using punch-card ballots, voters are  instructed to punch out the ballot cleanly:

AFTER VOTING, CHECK YOUR BALLOT CARD TO
BE SURE YOUR VOTING SELECTIONS ARE
CLEARLY AND CLEANLY PUNCHED AND THERE
ARE NO CHIPS LEFT HANGING ON THE BACK
OF THE CARD.

No reasonable person would call it “an error in the
vote tabulation,” or a “rejection of legal votes,”  when ...
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.
 

No one claims there was any  fraud in the election.
The Supreme Court of Florida ordered
this additional recount under the provision of the
election code giving the circuit judge the authority to
provide relief that is “appropriate under such circumstances.”
Fla. Stat. §102.168(8) (2000).

Surely when the Florida Legislature empowered the
courts of the State to grant “appropriate” relief, it must
have meant relief that would have become final by the cut-off
date of 3 U. S. C. §5.

JUSTICE STEVENS, with whom JUSTICE GINSBURG AND
JUSTICE BREYER join, dissenting.

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.

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.

...we have never before called into question the substantive standard
by which a State determines that a vote has been legally cast.

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.

What must underlie petitioners’ entire federal assault
on the Florida election procedures is an unstated lack of
confidence in the impartiality and capacity of the state
judges who would make the critical decisions if the vote
count were to proceed. Otherwise, their position is wholly
without merit. The endorsement of that position by the
majority of this Court can only lend credence to the most
cynical appraisal of the work of judges throughout the
land. It is confidence in the men and women who administer
the judicial system that is the true backbone of the
rule of law.

Time will one day heal the wound to that
confidence that will be inflicted by today’s decision. One
thing, however, is certain. Although we may never know
with complete certainty the identity of the winner of this
year’ s Presidential election, the identity of the loser is
perfectly clear. It is the Nation’ s confidence in the judge
as an impartial guardian of the rule of law.

I respectfully dissent.

JUSTICE SOUTER, with whom JUSTICE BREYER joins and
with whom JUSTICE STEVENS and JUSTICE GINSBURG join
with regard to all but Part C, dissenting.

The Court should not have reviewed either Bush v.
Palm Beach County Canvassing Bd.,or this case, and
should not have stopped Florida’s attempt to recount
all undervote ballots...

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.

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,
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.”

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.

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.

In sum, the interpretations by the Florida court raise no
substantial question under Article II.

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.

I respectfully dissent.

The CHIEF JUSTICE acknowledges that provisions of
Florida’ s Election Code “may well admit of more than one
interpretation.” Ante, at 3. But instead of respecting the
state high court’ s province to say what the State’ s Election
Code means, THE CHIEF JUSTICE maintains that Florida’ s
Supreme Court has veered so far from the ordinary practice
of judicial review that what it did cannot properly be
called judging.

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.

As JUSTICE BREYER convincingly explains, (dissenting
opinion), this case involves nothing close to the
kind of recalcitrance by a state high court that warrants
extraordinary action by this Court. The Florida Supreme
Court concluded that counting every legal vote was the
overriding concern of the Florida Legislature when it
enacted the State’ s Election Code. The court surely should
not be bracketed with state high courts of the Jim Crow
South.

Federal courts defer to state high courts’ interpretations of
their state’ s own law. This principle reflects the core of
federalism, on which all agree.

THE CHIEF JUSTICE’ s solicitude for the Florida Legislature
comes at the expense of the more fundamental solicitude we owe to
the legislature’ s sovereign.

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.

...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.  [There is no "respectfully" in the original]

JUSTICE BREYER, with whom JUSTICE STEVENS and
JUSTICE GINSBURG join except as to Part I–A–1, and with
whom JUSTICE SOUTER joins as to Part I, dissenting.

The Court was wrong to take this case. It was wrong to
grant a stay. It should now vacate that stay and permit
the Florida Supreme Court to decide whether the recount
should resume.

I

The political implications of this case for the country are
momentous. But the federal legal questions presented,
with one exception, are insubstantial.

...there is no justification for the majority’ s
remedy, which is simply to reverse the lower court and
halt the recount entirely. An appropriate remedy would
be, instead, to remand this case with instructions that,
even at this late date, would permit the Florida Supreme
Court to require recounting all undercounted votes in
Florida, including those from Broward, Volusia, Palm
Beach, and Miami-Dade Counties, whether or not previously
recounted prior to the end of the protest period, and
to do so in accordance with a single-uniform substandard.

... 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.

II

Despite the reminder that this case involves “an election
for the President of the United States,” ante, at 1
(REHNQUIST, C. J., concurring), no preeminent legal concern,
or practical concern related to legal questions, required
this Court to hear this case, let alone to issue a stay
that stopped Florida’s recount process in its tracks.

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.

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.

... in this highly politicized matter, the appearance of a
split decision runs the risk of undermining the public’ s
confidence in the Court itself. That confidence is a public
treasure. It has been built slowly over many years, some
of which were marked by a Civil War and the tragedy of
segregation. It is a vitally necessary ingredient of any successful
effort to protect basic liberty and, indeed, the rule of law itself.

... we do risk a self-inflicted wound — a wound
that may harm not just the Court, but the Nation.
I fear that in order to bring this agonizingly long election
process to a definitive conclusion, we have not adequately
attended to that necessary “check upon our own
exercise of power,” “our own sense of self-restraint.”
United States v. Butler, 297 U. S. 1, 79 (1936) (Stone, J.,
dissenting). Justice Brandeis once said of the Court, “The
most important thing we do is not doing.” Bickel, supra,
at 71. What it does today, the Court should have left
undone. I would repair the damage done as best we now
can, by permitting the Florida recount to continue under
uniform standards.

I respectfully dissent.