Slip op. - Part II
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 consti-tutional
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.
Cite as: 531 U. S. ____ (2000) 9
Per Curiam
The State Supreme Court ratified this uneven treat-ment.
It mandated that the recount totals from two coun-ties,
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 certifi-cation
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 con-cern.
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 ma-chine
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 indi-cia
of intent. Furthermore, the citizen who marks two
candidates, only one of which is discernable by the ma-chine,
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
10 BUSH v. GORE
Per Curiam
standards exemplifies concerns with the remedial proc-esses
that were under way.
That brings the analysis to yet a further equal protec-tion
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 estab-lished
by the Florida Supreme Court in Bush I, at re-spondents'
own urging. The press of time does not dimin-ish
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 protec-
Cite as: 531 U. S. ____ (2000) 11
Per Curiam
tion in election processes generally presents many com-plexities.
The question before the Court is not whether local enti-ties,
in the exercise of their expertise, may develop differ-ent
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 re-count
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 unconstitu-tional
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 in-stance,
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 con-ducted
in compliance with the requirements of equal
protection and due process without substantial additional
work. It would require not only the adoption (after oppor-tunity
for argument) of adequate statewide standards for
determining what is a legal vote, and practicable proce-dures
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
12 BUSH v. GORE
Per Curiam
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 legisla-ture
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 contro-versy
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 consti-tutional
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., dis-senting).
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 rem-edy—
remanding to the Florida Supreme Court for its
ordering of a constitutionally proper contest until Decem-ber
18-contemplates action in violation of the Florida
election code, and hence could not be part of an "appropri-ate"
order authorized by Fla. Stat. §102.168(8) (2000).
Cite as: 531 U. S. ____ (2000) 13
Per Curiam
* * *
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 con-tending
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 re-versed,
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.
Cite as: 531 U. S. ____ (2000) 1
REHNQUIST, C. J., concurring |
