SUPREME COURT OF THE UNITED STATES
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 [unsigned].
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. 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
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. On
December 11, the Florida Supreme Court issued a decision on remand
reinstating that date.
. . .
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 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. 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.
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.” 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.
. . . 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 . . . This is not a process with sufficient
guarantees of equal treatment.
. . .
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
. . .
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
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.
. . .
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).
. . .
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.
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 . . . 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
. . .
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,
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–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. 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. 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.
. . .
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.
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.
We deal here not with an ordinary election, but
with an election for the President of the United States . . . 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.
U.S. 64 (1938). . . . 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, the text of the election law itself,
and not just its interpretation by the courts of the States, takes on
. . .
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
In Florida, the legislature has chosen to hold
statewide elections to appoint the State’s 25 electors. Importantly, the
legislature has delegated the authority to run the elections and to
oversee election disputes to the Secretary of State (Secretary), Fla.
Stat. §97.012(1) (2000), 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
. . .
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 . . .
The scope and nature of the remedy ordered by the Florida Supreme Court
jeopardizes the “legislative wish” to take advantage of the safe harbor
provided by 3 U.S.C.
§ 5. Bush v. Palm Beach County Canvassing Bd., ante,
at 6. December 12, 2000, is the last date for a final determination of the
Florida electors that will satisfy §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. §102.168(8)
. . .
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, we would reverse.
Justice Ginsburg, with whom Justice Stevens joins,
and with whom Justice Souter and Justice Breyer join as to Part I,
The Chief Justice acknowledges that provisions
of Florida’s Election Code “may well admit of more than one
interpretation.” Ante, at 3. But instead of respecting the state
high court’s province to say what the State’s Election Code means, The
Chief Justice maintains that Florida’s Supreme Court has veered so far
from the ordinary practice of judicial review that what it did cannot
properly be called judging. My colleagues have offered a reasonable
construction of Florida’s law. Their construction coincides with the view
of one of Florida’s seven Supreme Court justices . . . 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. . . .
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
U.S. 837, 843 (1984). We do so in the face of the declaration in
Article I of the United States Constitution that “All legislative Powers
herein granted shall be vested in a Congress of the United States.” Surely
the Constitution does not call upon us to pay more respect to a federal
administrative agency’s construction of federal law than to a state high
court’s interpretation of its own state’s law. And not uncommonly, we let
stand state-court interpretations of federal law with which we
might disagree. Notably, in the habeas context, the Court adheres to the
view that “there is ‘no intrinsic reason why the fact that a man is a
federal judge should make him more competent, or conscientious, or learned
with respect to [federal law] than his neighbor in the state
. . .
The Chief Justice’s casual citation of these
[1960s civil rights] cases might lead one to believe they are part of a
larger collection of cases in which we said that the Constitution impelled
us to train a skeptical eye on a state court’s portrayal of state law. But
one would be hard pressed, I think, to find additional cases that fit the
mold. As Justice Breyer convincingly explains, see post, at 5—9
(dissenting opinion), this case involves nothing close to the kind of
recalcitrance by a state high court that warrants extraordinary action by
this Court. The Florida Supreme Court concluded that counting every legal
vote was the overriding concern of the Florida Legislature when it enacted
the State’s Election Code. The court surely should not be bracketed with
state high courts of the Jim Crow South.
. . .
The extraordinary setting of this case has
obscured the ordinary principle that dictates its proper resolution:
Federal courts defer to state high courts’ interpretations of their
state’s own law. This principle reflects the core of federalism, on which
all agree. “The Framers split the atom of sovereignty. It was the genius
of their idea that our citizens would have two political capacities, one
state and one federal, each protected from incursion by the other.”
Saenz v. Roe,
U.S. 489, 504, n. 17 (1999). Were the other members of this Court as
mindful as they generally are of our system of dual sovereignty, they
would affirm the judgment of the Florida Supreme Court.
. . .
The Court assumes that time will not permit
“orderly judicial review of any disputed matters that might arise.”
Ante, at 12. But no one has doubted the good faith and diligence with
which Florida election officials, attorneys for all sides of this
controversy, and the courts of law have performed their duties. Notably,
the Florida Supreme Court has produced two substantial opinions within 29
hours of oral argument. In sum, the Court’s conclusion that a
constitutionally adequate recount is impractical is a prophecy the Court’s
own judgment will not allow to be tested. Such an untested prophecy should
not decide the Presidency of the United States.