Rehnquist concurring opinion:
CHIEF JUSTICE REHNQUIST, with whom JUSTICE SCALIA
and JUSTICE THOMAS join, concurring.
We join the per curiam opinion. We write separ-ately
because we believe there are additional grounds
that require us to reverse the Florida Supreme Court' s
decision.
I
We deal here not with an ordinary election, but with an
election for the President of the United States. In Bur-roughs
v. United States, 290 U. S. 534, 545 (1934), we said:
"While presidential electors are not officers or
agents of the federal government (In re Green, 134
U. S. 377, 379), they exercise federal functions under,
and discharge duties in virtue of authority conferred
by, the Constitution of the United States. The Presi-dent
is vested with the executive power of the nation.
The importance of his election and the vital character
of its relationship to and effect upon the welfare and
safety of the whole people cannot be too strongly
stated."
Likewise, in Anderson v. Celebrezze, 460 U. S. 780, 794–795
(1983) (footnote omitted), we said: "[I]n the context of a
Presidential election, state-imposed restrictions implicate
a uniquely important national interest. For the President
2 BUSH v. GORE
REHNQUIST, C. J., concurring
and the Vice President of the United States are the
only elected officials who represent all the voters in the
Nation."
In most cases, comity and respect for federalism compel
us to defer to the decisions of state courts on issues of
state law. That practice reflects our understanding that
the decisions of state courts are definitive pronouncements
of the will of the States as sovereigns. Cf. Erie R. Co. v.
Tompkins, 304 U. S. 64 (1938). Of course, in ordinary cases,
the distribution of powers among the branches of a State' s
government raises no questions of federal constitutional
law, subject to the requirement that the government be
republican in character. See U. S. Const., Art. IV, §4. But
there are a few exceptional cases in which the Constitution
imposes a duty or confers a power on a particular branch of
a State' s government. This is one of them. Article II, §1,
cl. 2, provides that "[e]ach State shall appoint, in such
Manner as the Legislature thereof may direct," electors for
President and Vice President. (Emphasis added.) Thus,
the text of the election law itself, and not just its interpre-tation
by the courts of the States, takes on independent
significance.
In McPherson v. Blacker, 146 U. S. 1 (1892), we ex-plained
that Art. II, §1, cl. 2, "convey[s] the broadest power
of determination" and "leaves it to the legislature exclu-sively
to define the method" of appointment. Id., at 27. A
significant departure from the legislative scheme for
appointing Presidential electors presents a federal consti-tutional
question.
3 U. S. C. §5 informs our application of Art. II, §1, cl. 2,
to the Florida statutory scheme, which, as the Florida
Supreme Court acknowledged, took that statute into
account. Section 5 provides that the State' s selection of
electors "shall be conclusive, and shall govern in the
counting of the electoral votes" if the electors are chosen
under laws enacted prior to election day, and if the selec-
Cite as: 531 U. S. ____ (2000) 3
REHNQUIST, C. J., concurring
tion process is completed six days prior to the meeting of
the electoral college. As we noted in Bush v. Palm Beach
County Canvassing Bd., ante, at 6.
"Since §5 contains a principle of federal law that
would assure finality of the State' s determination if
made pursuant to a state law in effect before the elec-tion,
a legislative wish to take advantage of the ‘ safe
harbor' would counsel against any construction of the
Election Code that Congress might deem to be a
change in the law."
If we are to respect the legislature' s Article II powers,
therefore, we must ensure that postelection state-court
actions do not frustrate the legislative desire to attain the
"safe harbor" provided by §5.
In Florida, the legislature has chosen to hold statewide
elections to appoint the State' s 25 electors. Importantly,
the legislature has delegated the authority to run the
elections and to oversee election disputes to the Secretary
of 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 constitutional mandate.
In order to determine whether a state court has in-
4 BUSH v. GORE
REHNQUIST, C. J., concurring
fringed upon the legislature' s authority, we necessarily
must examine the law of the State as it existed prior to the
action of the court. Though we generally defer to state
courts on the interpretation of state law— see, e.g., Mul-laney
v. Wilbur, 421 U. S. 684 (1975)— there are of course
areas in which the Constitution requires this Court to
undertake an independent, if still deferential, analysis of
state law.
For example, in NAACP v. Alabama ex rel. Patterson,
357 U. S. 449 (1958), it was argued that we were without
jurisdiction because the petitioner had not pursued the
correct appellate remedy in Alabama' s state courts. Peti-tioners
had sought a state-law writ of certiorari in the
Alabama Supreme Court when a writ of mandamus, ac-cording
to that court, was proper. We found this state-law
ground inadequate to defeat our jurisdiction because we
were "unable to reconcile the procedural holding of the
Alabama Supreme Court" with prior Alabama precedent.
Id., at 456. The purported state-law ground was so novel,
in our independent estimation, that "petitioner could not
fairly be deemed to have been apprised of its existence."
Id., at 457.
Six years later we decided Bouie v. City of Columbia,
378 U. S. 347 (1964), in which the state court had held,
contrary to precedent, that the state trespass law applied
to black sit-in demonstrators who had consent to enter
private property but were then asked to leave. Relying
upon NAACP, we concluded that the South Carolina Su-preme
Court' s interpretation of a state penal statute had
impermissibly broadened the scope of that statute beyond
what a fair reading provided, in violation of due process.
See 378 U. S., at 361–362. What we would do in the pres-ent
case is precisely parallel: Hold that the Florida Su-preme
Court' s interpretation of the Florida election laws
Cite as: 531 U. S. ____ (2000) 5
REHNQUIST, C. J., concurring
impermissibly distorted them beyond what a fair reading
required, in violation of Article II.1
This inquiry does not imply a disrespect for state courts
but rather a respect for the constitutionally prescribed role
of state legislatures. To attach definitive weight to the
pronouncement of a state court, when the very question at
issue is whether the court has actually departed from the
statutory meaning, would be to abdicate our responsibility
to enforce the explicit requirements of Article II.
II
Acting pursuant to its constitutional grant of authority,
the Florida Legislature has created a detailed, if not per-fectly
crafted, statutory scheme that provides for appoint-ment
of Presidential electors by direct election. Fla. Stat.
§103.011 (2000). Under the statute, "[v]otes cast for the
actual candidates for President and Vice President shall
be counted as votes cast for the presidential electors sup-porting
such candidates." Ibid. The legislature has desig-nated
the Secretary of State as the "chief election officer,"
with the responsibility to "[o]btain and maintain uniform-ity
in the application, operation, and interpretation of the
——————
1 Similarly, our jurisprudence requires us to analyze the "background
principles" of state property law to determine whether there has been a
taking of property in violation of the Takings Clause. That constitu-tional
guarantee would, of course, afford no protection against state
power if our inquiry could be concluded by a state supreme court
holding that state property law accorded the plaintiff no rights. See
Lucas v. South Carolina Coastal Council, 505 U. S. 1003 (1992). In one of
our oldest cases, we similarly made an independent evaluation of state
law in order to protect federal treaty guarantees. In Fairfax' s Devisee v.
Hunter' s Lessee, 7 Cranch 603 (1813), we disagreed with the Supreme
Court of Appeals of Virginia that a 1782 state law had extinguished the
property interests of one Denny Fairfax, so that a 1789 ejectment order
against Fairfax supported by a 1785 state law did not constitute a
future confiscation under the 1783 peace treaty with Great Britain.
See id., at 623; Hunter v. Fairfax' s Devisee, 1 Munf. 218 (Va. 1809).
6 BUSH v. GORE
REHNQUIST, C. J., concurring
election laws." §97.012. The state legislature has dele-gated
to county canvassing boards the duties of adminis-tering
elections. §102.141. Those boards are responsible
for providing results to the state Elections Canvassing
Commission, comprising the Governor, the Secretary of
State, and the Director of the Division of Elections.
§102.111. Cf. Boardman v. Esteva, 323 So. 2d 259, 268, n.
5 (1975) ("The election process . . . is committed to the
executive branch of government through duly designated
officials all charged with specific duties . . . . [The] judg-ments
[of these officials] are entitled to be regarded by the
courts as presumptively correct . . . ").
After the election has taken place, the canvassing
boards receive returns from precincts, count the votes, and
in the event that a candidate was defeated by .5% or less,
conduct a mandatory recount. Fla. Stat. §102.141(4)
(2000). The county canvassing boards must file certified
election returns with the Department of State by 5 p.m. on
the seventh day following the election. §102.112(1). The
Elections Canvassing Commission must then certify the
results of the election. §102.111(1).
The state legislature has also provided mechanisms
both for protesting election returns and for contesting
certified election results. Section 102.166 governs pro-tests.
Any protest must be filed prior to the certification
of election results by the county canvassing board.
§102.166(4)(b). Once a protest has been filed, "the county
canvassing board may authorize a manual recount."
§102.166(4)(c). If a sample recount conducted pursuant to
§102.166(5) "indicates an error in the vote tabulation
which could affect the outcome of the election," the county
canvassing board is instructed to: "(a) Correct the error
and recount the remaining precincts with the vote tabula-tion
system; (b) Request the Department of State to verify
the tabulation software; or (c) Manually recount all bal-lots,"
§102.166(5). In the event a canvassing board
Cite as: 531 U. S. ____ (2000) 7
REHNQUIST, C. J., concurring
chooses to conduct a manual recount of all ballots,
§102.166(7) prescribes procedures for such a recount.
Contests to the certification of an election, on the other
hand, are controlled by §102.168. The grounds for con-testing
an election include "[r]eceipt of a number of illegal
votes or rejection of a number of legal votes sufficient to
change or place in doubt the result of the election."
§102.168(3)(c). Any contest must be filed in the appropri-ate
Florida circuit court, Fla. Stat. §102.168(1), and the
canvassing board or election board is the proper party
defendant, §102.168(4). Section 102.168(8) provides that
"[t]he circuit judge to whom the contest is presented may
fashion such orders as he or she deems necessary to en-sure
that each allegation in the complaint is investigated,
examined, or checked, to prevent or correct any alleged
wrong, and to provide any relief appropriate under such
circumstances." In Presidential elections, the contest
period necessarily terminates on the date set by 3 U. S. C.
§5 for concluding the State' s "final determination" of elec-tion
controversies."
In its first decision, Palm Beach Canvassing Bd. v.
Harris, ___ So. 2d, ___ (Nov. 21, 2000) (Harris I), the
Florida Supreme Court extended the 7-day statutory
certification deadline established by the legislature.2 This
modification of the code, by lengthening the protest period,
necessarily shortened the contest period for Presidential
elections. Underlying the extension of the certification
deadline and the shortchanging of the contest period was,
presumably, the clear implication that certification was a
matter of significance: The certified winner would enjoy
presumptive validity, making a contest proceeding by the
——————
2 We vacated that decision and remanded that case; the Florida Su-preme
Court reissued the same judgment with a new opinion on De-cember
11, 2000, ___ So. 2d, ___.
8 BUSH v. GORE
REHNQUIST, C. J., concurring
losing candidate an uphill battle. In its latest opinion,
however, the court empties certification of virtually
all legal consequence during the contest, and in doing
so departs from the provisions enacted by the Florida
Legislature.
The court determined that canvassing boards' decisions
regarding whether to recount ballots past the certification
deadline (even the certification deadline established by
Harris I) are to be reviewed de novo, although the election
code clearly vests discretion whether to recount in the
boards, and sets strict deadlines subject to the Secretary' s
rejection of late tallies and monetary fines for tardiness.
See Fla. Stat. §102.112 (2000). Moreover, the Florida
court held that all late vote tallies arriving during the
contest period should be automatically included in the
certification regardless of the certification deadline (even
the certification deadline established by Harris I), thus
virtually eliminating both the deadline and the Secretary' s
discretion to disregard recounts that violate it.3
Moreover, the court' s interpretation of "legal vote," and
hence its decision to order a contest-period recount, plainly
departed from the legislative scheme. Florida statutory
law cannot reasonably be thought to require the counting
of improperly marked ballots. Each Florida precinct
before election day provides instructions on how properly
to cast a vote, §101.46; each polling place on election day
contains a working model of the voting machine it uses,
§101.5611; and each voting booth contains a sample ballot,
§101.46. In precincts using punch-card ballots, voters are
instructed to punch out the ballot cleanly:
——————
3 Specifically, the Florida Supreme Court ordered the Circuit Court to
include in the certified vote totals those votes identified for Vice Presi-dent
Gore in Palm Beach County and Miami-Dade County.
Cite as: 531 U. S. ____ (2000) 9
REHNQUIST, C. J., concurring
AFTER VOTING, CHECK YOUR BALLOT CARD TO
BE SURE YOUR VOTING SELECTIONS ARE
CLEARLY AND CLEANLY PUNCHED AND THERE
ARE NO CHIPS LEFT HANGING ON THE BACK
OF THE CARD.
Instructions to Voters, quoted in Touchston v. McDermott,
2000 WL 1781942, *6 & n. 19 (CA11) (Tjoflat, J., dissen t-ing).
No reasonable person would call it "an error in the
vote tabulation," FLA. STAT. §102.166(5), or a "rejection of
legal votes," FLA. STAT. §102.168(3)(c),4 when electronic or
electromechanical equipment performs precisely in the
manner designed, and fails to count those ballots that are
not marked in the manner that these voting instructions
explicitly and prominently specify. The scheme that the
Florida Supreme Court' s opinion attributes to the legisla-ture
is one in which machines are required to be "capable
of correctly counting votes," §101.5606(4), but which none-theless
regularly produces elections in which legal votes
are predictably not tabulated, so that in close elections
manual recounts are regularly required. This is of course
absurd. The Secretary of State, who is authorized by law
to issue binding interpretations of the election code,
§§97.012, 106.23, rejected this peculiar reading of the
statutes. See DE 00–13 (opinion of the Division of Elec-tions).
The Florida Supreme Court, although it must defer
to the Secretary' s interpretations, see Krivanek v. Take
Back Tampa Political Committee, 625 So. 2d 840, 844 (Fla.
1993), rejected her reasonable interpretation and em-braced
the peculiar one. See Palm Beach County Canvass-ing
Board v. Harris, No. SC00–2346 (Dec. 11, 2000) (Har-——————
4 It is inconceivable that what constitutes a vote that must be counted
under the "error in the vote tabulation" language of the protest phase is
different from what constitutes a vote that must be counted under the
"legal votes" language of the contest phase.
10 BUSH v. GORE
REHNQUIST, C. J., concurring
ris III).
But as we indicated in our remand of the earlier case, in
a Presidential election the clearly expressed intent of the
legislature must prevail. And there is no basis for reading
the Florida statutes as requiring the counting of improp-erly
marked ballots, as an examination of the Florida
Supreme Court' s textual analysis shows. We will not
parse that analysis here, except to note that the principal
provision of the election code on which it relied,
§101.5614(5), was, as the Chief Justice pointed out in his
dissent from Harris II, entirely irrelevant. See Gore v.
Harris, No. SC00-2431, slip op., at 50 (Dec. 8, 2000). The
State' s Attorney General (who was supporting the Gore
challenge) confirmed in oral argument here that never
before the present election had a manual recount been
conducted on the basis of the contention that "undervotes"
should have been examined to determine voter intent. Tr.
of Oral Arg. in Bush v. Palm Beach County Canvassing
Bd., 39–40 (Dec. 1, 2000); cf. Broward County Canvassing
Board v. Hogan, 607 So. 2d 508, 509 (Fla. Ct. App. 1992)
(denial of recount for failure to count ballots with "hanging
paper chads"). For the court to step away from this estab-lished
practice, prescribed by the Secretary of State, the
state official charged by the legislature with "responsibil-ity
to . . . [o]btain and maintain uniformity in the applica-tion,
operation, and interpretation of the election laws,"
§97.012(1), was to depart from the legislative scheme.
III
The scope and nature of the remedy ordered by the
Florida Supreme Court jeopardizes the "legislative wish"
to take 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 determ i-nation
of the Florida electors that will satisfy §5. Yet in
the late afternoon of December 8th— four days before this
Cite as: 531 U. S. ____ (2000) 11
REHNQUIST, C. J., concurring
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 auto-matic
recount provision. No one claims there was any
fraud in the election. The Supreme Court of Florida or-dered
this additional recount under the provision of the
election code giving the circuit judge the authority to
provide relief that is "appropriate under such circum-stances."
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. In light of the inevitable legal
challenges and ensuing appeals to the Supreme Court of
Florida and petitions for certiorari to this Court, the entire
recounting process could not possibly be completed by that
date. Whereas the majority in the Supreme Court of
Florida stated its confidence that "the remaining under-votes
in these counties can be [counted] within the re-quired
time frame," ___ So. 2d. at ___, n. 22 (slip op., at 38,
n. 22), it made no assertion that the seemingly inevitable
appeals could be disposed of in that time. Although the
Florida Supreme Court has on occasion taken over a year
to resolve disputes over local elections, see, e.g., Beckstrom
v. Volusia County Canvassing Bd., 707 So. 2d 720 (1998)
(resolving contest of sheriff' s race 16 months after the
election), it has heard and decided the appeals in the
present case with great promptness. But the federal
deadlines for the Presidential election simply do not per-mit
even such a shortened process.
As the dissent noted:
12 BUSH v. GORE
REHNQUIST, C. J., concurring
"In [the four days remaining], all questionable bal-lots
must be reviewed by the judicial officer appointed
to discern the intent of the voter in a process open to
the public. Fairness dictates that a provision be made
for either party to object to how a particular ballot is
counted. Additionally, this short time period must
allow for judicial review. I respectfully submit this
cannot be completed without taking Florida' s presi-dential
electors outside the safe harbor provision, cre-ating
the very real possibility of disenfranchising
those nearly 6 million voters who are able to correctly
cast their ballots on election day." ___ So. 2d, at ___
(slip op., at 55) (Wells, C. J., dissenting).
The other dissenters echoed this concern: "[T]he majority
is departing from the essential requirements of the law by
providing a remedy which is impossible to achieve and
which will ultimately lead to chaos." Id., at ___ (slip op.,
at 67 (Harding, J., dissenting, Shaw, J. concurring).
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.
Cite as: 531 U. S. ____ (2000) 1
STEVENS, J., dissenting |
