Stevens Dissent:
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 ques-tions
arise about the meaning of state laws, including
election laws, it is our settled practice to accept the opin-ions
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 Arti-cle
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
2 BUSH v. GORE
STEVENS, J., dissenting
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 Fed-eral
Constitution frees the state legislature from the
constraints in the state constitution that created it.
Moreover, the Florida Legislature' s own decision to em-ploy
a unitary code for all elections indicates that it in-tended
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 elec-tors
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 judi-ciary
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.
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1 "Wherever the term ‘ legislature' is used in the Constitution it is neces-sary
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. Thorn-ton,
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.
Cite as: 531 U. S. ____ (2000) 3
STEVENS, J., dissenting
Nor are petitioners correct in asserting that the failure
of the Florida Supreme Court to specify in detail the pre-cise
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 viola-——————
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 absen-tee
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) (McKin-ney
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
4 BUSH v. GORE
STEVENS, J., dissenting
tion 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 de-termines
that a vote has been legally cast. And there is
no reason to think that the guidance provided to the fact-finders,
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 deter-mining
voter intent in different counties employing simi-lar
voting systems may raise serious concerns. Those
concerns are alleviated— if not eliminated— by the fact
that a single impartial magistrate will ultimately adjudi-cate
all objections arising from the recount process. Of
course, as a general matter, "[t]he interpretation of consti-tutional
principles must not be too literal. We must r e-member
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 accu-racy
4 — might run afoul of equal protection. So, too, might
——————
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 reason-able
doubt standard is a requirement of due process, but the Constitu-tion
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,
Cite as: 531 U. S. ____ (2000) 5
STEVENS, J., dissenting
the similar decisions of the vast majority of state legisla-tures
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 constitu-tional
stature. As the majority further acknowledges,
Florida law holds that all ballots that reveal the intent of
the voter constitute valid votes. Recognizing these princi-ples,
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 effec-tively
orders the disenfranchisement of an unknown num-ber
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
——————
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.
6 BUSH v. GORE
STEVENS, J., dissenting
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 prece-dent
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
——————
5 Republican electors were certified by the Acting Governor on No-vember
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 Gover-nor
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 authorita-tive
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).
Cite as: 531 U. S. ____ (2000) 7
STEVENS, J., dissenting
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 con-tested
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 admin-ister
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.
Cite as: 531 U. S. ____ (2000) 1 |
