Souter 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., ante, p. ___ (per
curiam), or this case, and should not have stopped Flor-ida'
s attempt to recount all undervote ballots, see ante at
___, by issuing a stay of the Florida Supreme Court' s
orders during the period of this review, see Bush v. Gore,
post at ____ (slip op., at 1). 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 following the procedure provided in 3 U. S. C.
§15. The case being before us, however, its resolution by
the majority is another erroneous decision.
As will be clear, I am in substantial agreement with
the dissenting opinions of JUSTICE STEVENS, JUSTICE
GINSBURG and JUSTICE BREYER. I write separately only to
say how straightforward the issues before us really are.
There are three issues: whether the State Supreme
Court' s interpretation of the statute providing for a con-test
of the state election results somehow violates 3
U. S. C. §5; whether that court' s construction of the state
statutory provisions governing contests impermissibly
2 BUSH v. GORE
SOUTER, J., dissenting
changes a state law from what the State' s legislature has
provided, in violation of Article II, §1, cl. 2, of the national
Constitution; and whether the manner of interpreting
markings on disputed ballots failing to cause machines to
register votes for President (the undervote ballots) violates
the equal protection or due process guaranteed by the
Fourteenth Amendment. None of these issues is difficult
to describe or to resolve.
A
The 3 U. S. C. §5 issue is not serious. That provision
sets certain conditions for treating a State' s certification of
Presidential electors as conclusive in the event that a
dispute over recognizing those electors must be resolved in
the Congress under 3 U. S. C. §15. Conclusiveness re-quires
selection under a legal scheme in place before the
election, with results determined at least six days before
the date set for casting electoral votes. But no State is
required to conform to §5 if it cannot do that (for whatever
reason); the sanction for failing to satisfy the conditions of
§5 is simply loss of what has been called its "safe harbor."
And even that determination is to be made, if made any-where,
in the Congress.
B
The second matter here goes to the State Supreme
Court' s interpretation of certain terms in the state statute
governing election "contests," Fla. Stat. §102.168 (2000);
there is no question here about the state court' s interpre-tation
of the related provisions dealing with the ante-cedent
process of "protesting" particular vote counts,
§102.166, which was involved in the previous case, Bush v.
Palm Beach County Canvassing Board. The issue is
whether the judgment of the state supreme court has
displaced the state legislature' s provisions for election
contests: is the law as declared by the court different from
Cite as: 531 U. S. ____ (2000) 3
SOUTER, J., dissenting
the provisions made by the legislature, to which the na-tional
Constitution commits responsibility for determining
how each State' s Presidential electors are chosen? See
U. S. Const., Art. II, §1, cl. 2. Bush does not, of course,
claim that any judicial act interpreting a statute of uncer-tain
meaning is enough to displace the legislative provi-sion
and violate Article II; statutes require interpretation,
which does not without more affect the legislative charac-ter
of a statute within the meaning of the Constitution.
Brief for Petitioners 48, n. 22, in Bush v. Palm Beach
County Canvassing Bd., et al., 531 U. S. ___ (2000). What
Bush does argue, as I understand the contention, is that
the interpretation of §102.168 was so unreasonable as to
transcend the accepted bounds of statutory interpretation,
to the point of being a nonjudicial act and producing new
law untethered to the legislative act in question.
The starting point for evaluating the claim that the
Florida Supreme Court' s interpretation effectively re-wrote
§102.168 must be the language of the provision on
which Gore relies to show his right to raise this contest:
that the previously certified result in Bush' s favor was
produced by "rejection of a number of legal votes sufficient
to change or place in doubt the result of the election." Fla.
Stat. §102.168(3)(c) (2000). None of the state court' s i n-terpretations
is unreasonable to the point of displacing the
legislative enactment quoted. As I will note below, other
interpretations were of course possible, and some might
have been better than those adopted by the Florida court' s
majority; the two dissents from the majority opinion of
that court and various briefs submitted to us set out alte r-natives.
But the majority view is in each instance within
the bounds of reasonable interpretation, and the law as
declared is consistent with Article II.
1. The statute does not define a "legal vote," the rejec-tion
of which may affect the election. The State Supreme
Court was therefore required to define it, and in doing
4 BUSH v. GORE
SOUTER, J., dissenting
that the court looked to another election statute,
§101.5614(5), dealing with damaged or defective ballots,
which contains a provision that no vote shall be disre-garded
"if there is a clear indication of the intent of the
voter as determined by a canvassing board." The court
read that objective of looking to the voter' s intent as indi-cating
that the legislature probably meant "legal vote" to
mean a vote recorded on a ballot indicating what the voter
intended. Gore v. Harris, __ So. 2d __ (slip op., at 23–25)
(Dec. 8, 2000). It is perfectly true that the majority might
have chosen a different reading. See, e.g., Brief for Re-spondent
Harris et al. 10 (defining "legal votes" as "votes
properly executed in accordance with the instructions
provided to all registered voters in advance of the election
and in the polling places"). But even so, there is no consti-tutional
violation in following the majority view; Article II
is unconcerned with mere disagreements about interpre-tive
merits.
2. The Florida court next interpreted "rejection" to
determine what act in the counting process may be at-tacked
in a contest. Again, the statute does not define the
term. The court majority read the word to mean simply a
failure to count. ____ So. 2d, at___ (slip op., at 26–27).
That reading is certainly within the bounds of common
sense, given the objective to give effect to a voter' s intent if
that can be determined. A different reading, of course, is
possible. The majority might have concluded that "rejec-tion"
should refer to machine malfunction, or that a ballot
should not be treated as "reject[ed]" in the absence of
wrongdoing by election officials, lest contests be so easy to
claim that every election will end up in one. Cf. id., at
____ (slip op., at 48) (Wells, C. J., dissenting). There is,
however, nothing nonjudicial in the Florida majority' s
more hospitable reading.
3. The same is true about the court majority' s under-standing
of the phrase "votes sufficient to change or place
Cite as: 531 U. S. ____ (2000) 5
SOUTER, J., dissenting
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.1 While the majority might have
thought (as the trial judge did) that a probability, not a
possibility, should be necessary to justify a contest, that
reading is not required by the statute' s text, which says
nothing about probability. Whatever people of good will
and good sense may argue about the merits of the Florida
court' s reading, there is no warrant for saying that it
transcends the limits of reasonable statutory interpreta-tion
to the point of supplanting the statute enacted by the
"legislature" within the meaning of Article II.
In sum, the interpretations by the Florida court raise no
substantial question under Article II. That court engaged
in permissible construction in determining that Gore had
instituted a contest authorized by the state statute, and it
proceeded to direct the trial judge to deal with that contest
in the exercise of the discretionary powers generously
conferred by Fla. Stat. §102.168(8) (2000), to "fashion such
orders as he or she deems necessary to ensure 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."
As JUSTICE GINSBURG has persuasively explained in her
own dissenting opinion, our customary respect for state
interpretations of state law counsels against rejection of
——————
1 When the Florida court ruled, the totals for Bush and Gore were
then less than 1,000 votes apart. One dissent pegged the number of
uncounted votes in question at 170,000. Gore v. Harris, supra, __
So. 2d __ , (slip op., at 66) (opinion of Harding, J.). Gore' s counsel
represented to us that the relevant figure is approximately 60,000, Tr.
of Oral Arg. 62, the number of ballots in which no vote for President
was recorded by the machines.
6 BUSH v. GORE
SOUTER, J., dissenting
the Florida court' s determinations in this case.
C
It is only on the third issue before us that there is a
meritorious argument for relief, as this Court' s Per Cu-riam
opinion recognizes. It is an issue that might well
have been dealt with adequately by the Florida courts if
the state proceedings had not been interrupted, and if not
disposed of at the state level it could have been considered
by the Congress in any electoral vote dispute. But because
the course of state proceedings has been interrupted, time
is short, and the issue is before us, I think it sensible for
the Court to address it.
Petitioners have raised an equal protection claim (or,
alternatively, a due process claim, see generally Logan v.
Zimmerman Brush Co., 455 U. S. 422 (1982)), in the
charge that unjustifiably disparate standards are applied
in different electoral jurisdictions to otherwise identical
facts. It is true that the Equal Protection Clause does not
forbid the use of a variety of voting mechanisms within a
jurisdiction, even though different mechanisms will have
different levels of effectiveness in recording voters' inten-tions;
local variety can be justified by concerns about cost,
the potential value of innovation, and so on. But evidence
in the record here suggests that a different order of dis-parity
obtains under rules for determining a voter' s intent
that have been applied (and could continue to be applied)
to identical types of ballots used in identical brands of
machines and exhibiting identical physical characteristics
(such as "hanging" or "dimpled" chads). See, e.g., Tr., at
238–242 (Dec. 2–3, 2000) (testimony of Palm Beach
County Canvassing Board Chairman Judge Charles Bur-ton
describing varying standards applied to imperfectly
punched ballots in Palm Beach County during precertifi-cation
manual recount); id., at 497–500 (similarly describ-ing
varying standards applied in Miami-Dade County); Tr.
Cite as: 531 U. S. ____ (2000) 7
SOUTER, J., dissenting
of Hearing 8–10 (Dec. 8, 2000) (soliciting from county
canvassing boards proposed protocols for determining
voters' intent but declining to provide a precise, uniform
standard). I can conceive of no legitimate state interest
served by these differing treatments of the expressions of
voters' fundamental rights. The differences appear wholly
arbitrary.
In deciding what to do about this, we should take ac-count
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. Although one of the dissenting justices of
the State Supreme Court estimated that disparate stan-dards
potentially affected 170,000 votes, Gore v. Harris,
supra, ___ So. 2d, at ___ (slip op., at 66), the number at
issue is significantly smaller. The 170,000 figure appar-ently
represents all uncounted votes, both undervotes
(those for which no Presidential choice was recorded by a
machine) and overvotes (those rejected because of votes for
more than one candidate). Tr. of Oral Arg. 61–62. But as
JUSTICE BREYER has pointed out, no showing has been
made of legal overvotes uncounted, and counsel for Gore
made an uncontradicted representation to the Court that
the statewide total of undervotes is about 60,000. Id., at
62. To recount these manually would be a tall order, but
before this Court stayed the effort to do that the courts of
Florida were ready to do their best to get that job done.
There is no justification for denying the State the oppor-
8 BUSH v. GORE
SOUTER, J., dissenting
tunity to try to count all disputed ballots now.
I respectfully dissent. |
