Breyer dissent:
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 00–949
_________________
GEORGE W. BUSH, ET AL., PETITIONERS v.
ALBERT GORE, JR., ET AL.
ON WRIT OF CERTIORARI TO THE FLORIDA SUPREME COURT
[December 12, 2000]
JUSTICE BREYER, with whom JUSTICE STEVENS and
JUSTICE GINSBURG join except as to Part I–A–1, and with
whom JUSTICE SOUTER joins as to Part I, dissenting.
The Court was wrong to take this case. It was wrong to
grant a stay. It should now vacate that stay and permit
the Florida Supreme Court to decide whether the recount
should resume.
I
The political implications of this case for the country are
momentous. But the federal legal questions presented,
with one exception, are insubstantial.
A
1
The majority raises three Equal Protection problems
with the Florida Supreme Court' s recount order: first, the
failure to include overvotes in the manual recount; second,
the fact that all ballots, rather than simply the under-votes,
were recounted in some, but not all, counties; and
third, the absence of a uniform, specific standard to guide
the recounts. As far as the first issue is concerned, pet i-tioners
presented no evidence, to this Court or to any
Florida court, that a manual recount of overvotes would
identify additional legal votes. The same is true of the
second, and, in addition, the majority' s reasoning would
2 BUSH v. GORE
BREYER, J., dissenting
seem to invalidate any state provision for a manual re-count
of individual counties in a statewide election.
The majority' s third concern does implicate principles of
fundamental fairness. The majority concludes that the
Equal Protection Clause requires that a manual recount
be governed not only by the uniform general standard of
the "clear intent of the voter," but also by uniform subsidi-ary
standards (for example, a uniform determination
whether indented, but not perforated, "undervotes" should
count). The opinion points out that the Florida Supreme
Court ordered the inclusion of Broward County' s under-counted
"legal votes" even though those votes included
ballots that were not perforated but simply "dimpled,"
while newly recounted ballots from other counties will
likely include only votes determined to be "legal" on the
basis of a stricter standard. In light of our previous re-mand,
the Florida Supreme Court may have been reluc-tant
to adopt a more specific standard than that provided
for by the legislature for fear of exceeding its authority
under Article II. However, since the use of different stan-dards
could favor one or the other of the candidates, since
time was, and is, too short to permit the lower courts to
iron out significant differences through ordinary judicial
review, and since the relevant distinction was embodied in
the order of the State' s highest court, I agree that, in these
very special circumstances, basic principles of fairness
may well have counseled the adoption of a uniform stan-dard
to address the problem. In light of the majority' s
disposition, I need not decide whether, or the extent to
which, as a remedial matter, the Constitution would place
limits upon the content of the uniform standard.
2
Nonetheless, there is no justification for the majority' s
remedy, which is simply to reverse the lower court and
halt the recount entirely. An appropriate remedy would
Cite as: 531 U. S. ____ (2000) 3
BREYER, J., dissenting
be, instead, to remand this case with instructions that,
even at this late date, would permit the Florida Supreme
Court to require recounting all undercounted votes in
Florida, including those from Broward, Volusia, Palm
Beach, and Miami-Dade Counties, whether or not previ-ously
recounted prior to the end of the protest period, and
to do so in accordance with a single-uniform substandard.
The majority justifies stopping the recount entirely on
the ground that there is no more time. In particular, the
majority relies on the lack of time for the Secretary to
review and approve equipment needed to separate under-votes.
But the majority reaches this conclusion in the
absence of any record evidence that the recount could not
have been completed in the time allowed by the Florida
Supreme Court. The majority finds facts outside of the
record on matters that state courts are in a far better
position to address. Of course, it is too late for any such
recount to take place by December 12, the date by which
election disputes must be decided if a State is to take
advantage of the safe harbor provisions of 3 U. S. C. §5.
Whether there is time to conduct a recount prior to De-cember
18, when the electors are scheduled to meet, is a
matter for the state courts to determine. And whether,
under Florida law, Florida could or could not take further
action is obviously a matter for Florida courts, not this
Court, to decide. See ante, at 13 (per curiam).
By halting the manual recount, and thus ensuring that
the uncounted legal votes will not be counted under any
standard, this Court crafts a remedy out of proportion to
the asserted harm. And that remedy harms the very
fairness interests the Court is attempting to protect. The
manual recount would itself redress a problem of unequal
treatment of ballots. As JUSTICE STEVENS points out, see
ante, at 4 and n. 4 (STEVENS, J., dissenting opinion), the
ballots of voters in counties that use punch-card systems
are more likely to be disqualified than those in counties
4 BUSH v. GORE
BREYER, J., dissenting
using optical-scanning systems. According to recent news
reports, variations in the undervote rate are even more
pronounced. See Fessenden, No-Vote Rates Higher in
Punch Card Count, N. Y. Times, Dec. 1, 2000, p. A29
(reporting that 0.3% of ballots cast in 30 Florida counties
using optical-scanning systems registered no Presidential
vote, in comparison to 1.53% in the 15 counties using Voto-matic
punch card ballots). Thus, in a system that allows
counties to use different types of voting systems, voters
already arrive at the polls with an unequal chance that
their votes will be counted. I do not see how the fact that
this results from counties' selection of different voting
machines rather than a court order makes the outcome
any more fair. Nor do I understand why the Florida Su-preme
Court' s recount order, which helps to redress this
inequity, must be entirely prohibited based on a deficiency
that could easily be remedied.
B
The remainder of petitioners' claims, which are the
focus of the CHIEF JUSTICE' s concurrence, raise no signifi-cant
federal questions. I cannot agree that the CHIEF
JUSTICE' s unusual review of state law in this case, see
ante, at 5–8 (GINSBURG, J., dissenting opinion), is justified
by reference either to Art. II, §1, or to 3 U. S. C. §5.
Moreover, even were such review proper, the conclusion
that the Florida Supreme Court' s decision contravenes
federal law is untenable.
While conceding that, in most cases, "comity and respect
for federalism compel us to defer to the decisions of state
courts on issues of state law," the concurrence relies on
some combination of Art. II, §1, and 3 U. S. C. §5 to justify
the majority' s conclusion that this case is one of the few in
which we may lay that fundamental principle aside. Ante,
at 2 (Opinion of REHNQUIST, C. J. The concurrence' s
primary foundation for this conclusion rests on an appeal
Cite as: 531 U. S. ____ (2000) 5
BREYER, J., dissenting
to plain text: Art. II, §1' s grant of the power to appoint
Presidential electors to the State "Legislature." Ibid. But
neither the text of Article II itself nor the only case the
concurrence cites that interprets Article II, McPherson v.
Blacker, 146 U. S. 1 (1892), leads to the conclusion that
Article II grants unlimited power to the legislature, devoid
of any state constitutional limitations, to select the ma n-ner
of appointing electors. See id., at 41 (specifically
referring to state constitutional provision in upholding
state law regarding selection of electors). Nor, as JUSTICE
STEVENS points out, have we interpreted the Federal
constitutional provision most analogous to Art. II, §1—
Art. I, §4— in the strained manner put forth in the concur-rence.
Ante, at 1–2 and n. 1 (dissenting opinion).
The concurrence' s treatment of §5 as "inform[ing]" its
interpretation of Article II, §1, cl. 2, ante, at 3 (REHN-QUIST,
C. J., concurring), is no more convincing. The
CHIEF JUSTICE contends that our opinion in Bush v. Palm
Beach County Canvassing Bd., ante, p. ____, (per curiam)
(Bush I), in which we stated that "a legislative wish to
take advantage of [§5] would counsel against" a construc-tion
of Florida law that Congress might deem to be a
change in law, id., (slip op. at 6), now means that this
Court "must ensure that post-election state court actions
do not frustrate the legislative desire to attain the ‘ safe
harbor' provided by §5." Ante, at 3. However, §5 is part of
the rules that govern Congress' recognition of slates of
electors. Nowhere in Bush I did we establish that this
Court had the authority to enforce §5. Nor did we suggest
that the permissive "counsel against" could be trans-formed
into the mandatory "must ensure." And nowhere
did we intimate, as the concurrence does here, that a state
court decision that threatens the safe harbor provision of
§5 does so in violation of Article II. The concurrence' s
logic turns the presumption that legislatures would wish
to take advantage of § 5' s "safe harbor" provision into a
6 BUSH v. GORE
BREYER, J., dissenting
mandate that trumps other statutory provisions and
overrides the intent that the legislature did express.
But, in any event, the concurrence, having conducted its
review, now reaches the wrong conclusion. It says that
"the Florida Supreme Court' s interpretation of the Florida
election laws impermissibly distorted them beyond what a
fair reading required, in violation of Article II." Ante, at
4–5 (REHNQUIST, C. J, concurring). But what precisely is
the distortion? Apparently, it has three elements. First,
the Florida court, in its earlier opinion, changed the elec-tion
certification date from November 14 to November 26.
Second, the Florida court ordered a manual recount of
"undercounted" ballots that could not have been fully
completed by the December 12 "safe harbor" deadline.
Third, the Florida court, in the opinion now under review,
failed to give adequate deference to the determinations of
canvassing boards and the Secretary.
To characterize the first element as a "distortion," how-ever,
requires the concurrence to second-guess the way in
which the state court resolved a plain conflict in the lan-guage
of different statutes. Compare Fla. Stat. §102.166
(2001) (foreseeing manual recounts during the protest
period) with §102.111 (setting what is arguably too short a
deadline for manual recounts to be conducted); compare
§102.112(1) (stating that the Secretary "may" ignore late
returns) with §102.111(1) (stating that the Secretary
"shall" ignore late returns). In any event, that issue no
longer has any practical importance and cannot justify the
reversal of the different Florida court decision before us
now.
To characterize the second element as a "distortion"
requires the concurrence to overlook the fact that the
inability of the Florida courts to conduct the recount on
time is, in significant part, a problem of the Court' s own
making. The Florida Supreme Court thought that the
recount could be completed on time, and, within hours, the
Cite as: 531 U. S. ____ (2000) 7
BREYER, J., dissenting
Florida Circuit Court was moving in an orderly fashion to
meet the deadline. This Court improvidently entered a
stay. As a result, we will never know whether the recount
could have been completed.
Nor can one characterize the third element as "imper-missibl[
e] distort[ing]" once one understands that there
are two sides to the opinion' s argument that the Florida
Supreme Court "virtually eliminated the Secretary' s dis-cretion."
Ante, at 9 (REHNQUIST, C. J, concurring). The
Florida statute in question was amended in 1999 to pro-vide
that the "grounds for contesting an election" include
the "rejection of a number of legal votes sufficient to . . .
place in doubt the result of the election." Fla. Stat.
§§102.168(3), (3)(c) (2000). And the parties have argued
about the proper meaning of the statute' s term "legal
vote." The Secretary has claimed that a "legal vote" is a
vote "properly executed in accordance with the instruc-tions
provided to all registered voters." Brief for Respon-dent
Harris et al. 10. On that interpretation, punchcard
ballots for which the machines cannot register a vote are
not "legal" votes. Id., at 14. The Florida Supreme Court
did not accept her definition. But it had a reason. Its
reason was that a different provision of Florida election
laws (a provision that addresses damaged or defective
ballots) says that no vote shall be disregarded "if there is a
clear indication of the intent of the voter as determined by
the canvassing board" (adding that ballots should not be
counted "if it is impossible to determine the elector' s
choice"). Fla. Stat. §101.5614(5) (2000). Given this stat u-tory
language, certain roughly analogous judicial prece-dent,
e.g., Darby v. State ex rel. McCollough, 75 So. 411
(Fla. 1917) (per curiam), and somewhat similar determi-nations
by courts throughout the Nation, see cases cited
infra, at 9, the Florida Supreme Court concluded that the
term "legal vote" means a vote recorded on a ballot that
clearly reflects what the voter intended. Gore v. Harris,
8 BUSH v. GORE
BREYER, J., dissenting
___ So. 2d ___, ___ (2000) (slip op., at 19). That conclusion
differs from the conclusion of the Secretary. But nothing
in Florida law requires the Florida Supreme Court to
accept as determinative the Secretary' s view on such a
matter. Nor can one say that the Court' s ultimate deter-mination
is so unreasonable as to amount to a constitu-tionally
"impermissible distort[ion]" of Florida law.
The Florida Supreme Court, applying this definition,
decided, on the basis of the record, that respondents had
shown that the ballots undercounted by the voting ma-chines
contained enough "legal votes" to place "the results"
of the election "in doubt." Since only a few hundred votes
separated the candidates, and since the "undercounted"
ballots numbered tens of thousands, it is difficult to see
how anyone could find this conclusion unreasonable-however
strict the standard used to measure the voter' s
"clear intent." Nor did this conclusion "strip" canvassing
boards of their discretion. The boards retain their tradi-tional
discretionary authority during the protest period.
And during the contest period, as the court stated, "the
Canvassing Board' s actions [during the protest period]
may constitute evidence that a ballot does or does not
qualify as a legal vote." Id., at *13. Whether a local
county canvassing board' s discretionary judgment during
the protest period not to conduct a manual recount will be
set aside during a contest period depends upon whether a
candidate provides additional evidence that the rejected
votes contain enough "legal votes" to place the outcome of
the race in doubt. To limit the local canvassing board' s
discretion in this way is not to eliminate that discretion.
At the least, one could reasonably so believe.
The statute goes on to provide the Florida circuit judge
with authority to "fashion such orders as he or she deems
necessary to ensure that each allegation . . . is investi-gated,
examined, or checked, . . . and to provide any relief
appropriate." Fla. Stat. §102.168(8) (2000) (emphasis
Cite as: 531 U. S. ____ (2000) 9
BREYER, J., dissenting
added). The Florida Supreme Court did just that. One
might reasonably disagree with the Florida Supreme
Court's interpretation of these, or other, words in the
statute. But I do not see how one could call its plain lan-guage
interpretation of a 1999 statutory change so mis-guided
as no longer to qualify as judicial interpretation or
as a usurpation of the authority of the State legislature.
Indeed, other state courts have interpreted roughly simi-lar
state statutes in similar ways. See, e.g., In re Election
of U. S. Representative for Second Congressional Dist., 231
Conn. 602, 621, 653 A. 2d 79, 90–91 (1994) ("Whatever the
process used to vote and to count votes, differences in
technology should not furnish a basis for disregarding the
bedrock principle that the purpose of the voting process is
to ascertain the intent of the voters"); Brown v. Carr, 130
W. Va. 401, 460, 43 S. E.2d 401, 404–405 (1947)
("[W]hether a ballot shall be counted . . . depends on the
intent of the voter . . . . Courts decry any resort to techni-cal
rules in reaching a conclusion as to the intent of the
voter").
I repeat, where is the "impermissible" distortion?
II
Despite the reminder that this case involves "an election
for the President of the United States," ante, at 1
(REHNQUIST, C. J., concurring), no preeminent legal con-cern,
or practical concern related to legal questions, re-quired
this Court to hear this case, let alone to issue a stay
that stopped Florida' s recount process in its tracks. With
one exception, petitioners' claims do not ask us to vindi-cate
a constitutional provision designed to protect a basic
human right. See, e.g., Brown v. Board of Education, 347
U. S. 483 (1954). Petitioners invoke fundamental fairness,
namely, the need for procedural fairness, including finality.
But with the one "equal protection" exception, they rely
upon law that focuses, not upon that basic need, but upon
10 BUSH v. GORE
BREYER, J., dissenting
the constitutional allocation of power. Respondents invoke
a competing fundamental consideration— the need to
determine the voter' s true intent. But they look to state
law, not to federal constitutional law, to protect that inter-est.
Neither side claims electoral fraud, dishonesty, or the
like. And the more fundamental equal protection claim
might have been left to the state court to resolve if and
when it was discovered to have mattered. It could still be
resolved through a remand conditioned upon issuance of a
uniform standard; it does not require reversing the Florida
Supreme Court.
Of course, the selection of the President is of fundamen-tal
national importance. But that importance is political,
not legal. And this Court should resist the temptation
unnecessarily to resolve tangential legal disputes, where
doing so threatens to determine the outcome of the elec-tion.
The Constitution and federal statutes themselves make
clear that restraint is appropriate. They set forth a road
map of how to resolve disputes about electors, even after
an election as close as this one. That road map foresees
resolution of electoral disputes by state courts. See 3
U. S. C. §5 (providing that, where a "State shall have
provided, by laws enacted prior to [election day], for its
final determination of any controversy or contest con-cerning
the appointment of . . . electors . . . by judicial or
other methods," the subsequently chosen electors enter a
safe harbor free from congressional challenge). But it
nowhere provides for involvement by the United States
Supreme Court.
To the contrary, the Twelfth Amendment commits to
Congress the authority and responsibility to count elec-toral
votes. A federal statute, the Electoral Count Act,
enacted after the close 1876 Hayes-Tilden Presidential
election, specifies that, after States have tried to resolve
disputes (through "judicial" or other means), Congress is
Cite as: 531 U. S. ____ (2000) 11
BREYER, J., dissenting
the body primarily authorized to resolve remaining dis-putes.
See Electoral Count Act of 1887, 24 Stat. 373, 3
U. S. C. §§5, 6, and 15.
The legislative history of the Act makes clear its intent
to commit the power to resolve such disputes to Congress,
rather than the courts:
"The two Houses are, by the Constitution, authorized
to make the count of electoral votes. They can only
count legal votes, and in doing so must determine,
from the best evidence to be had, what are legal votes
.... The power to determine rests with the two
Houses, and there is no other constitutional tribunal."
H. Rep. No. 1638, 49th Cong., 1st Sess., 2 (1886) (r e-port
submitted by Rep. Caldwell, Select Committee on
the Election of President and Vice-President).
The Member of Congress who introduced the Act added:
"The power to judge of the legality of the votes is a
necessary consequent of the power to count. The exis-tence
of this power is of absolute necessity to the pres-ervation
of the Government. The interests of all the
States in their relations to each other in the Federal
Union demand that the ultimate tribunal to decide
upon the election of President should be a constituent
body, in which the States in their federal relation-ships
and the people in their sovereign capacity
should be represented." 18 Cong. Rec. 30 (1886).
"Under the Constitution who else could decide?
Who is nearer to the State in determining a question
of vital importance to the whole union of States than
the constituent body upon whom the Constitution has
devolved the duty to count the vote?" Id., at 31.
12 BUSH v. GORE
BREYER, J., dissenting
The Act goes on to set out rules for the congressional
determination of disputes about those votes. If, for exam-ple,
a state submits a single slate of electors, Congress
must count those votes unless both Houses agree that the
votes "have not been . . . regularly given." 3 U. S. C. § 15.
If, as occurred in 1876, one or more states submits two
sets of electors, then Congress must determine whether a
slate has entered the safe harbor of §5, in which case its
votes will have "conclusive" effect. Ibid. If, as also oc-curred
in 1876, there is controversy about "which of two or
more of such State authorities . . . is the lawful tribunal"
authorized to appoint electors, then each House shall
determine separately which votes are "supported by the
decision of such State so authorized by its law." Ibid. If
the two Houses of Congress agree, the votes they have
approved will be counted. If they disagree, then "the votes
of the electors whose appointment shall have been certi-fied
by the executive of the State, under the seal thereof,
shall be counted." Ibid.
Given this detailed, comprehensive scheme for counting
electoral votes, there is no reason to believe that federal
law either foresees or requires resolution of such a politi-cal
issue by this Court. Nor, for that matter, is there any
reason to that think the Constitution' s Framers would
have reached a different conclusion. Madison, at least,
believed that allowing the judiciary to choose the presi-dential
electors "was out of the question." Madison, July
25, 1787 (reprinted in 5 Elliot' s Debates on the Federal
Constitution 363 (2d ed. 1876)).
The decision by both the Constitution' s Framers and the
1886 Congress to minimize this Court' s role in resolving
close federal presidential elections is as wise as it is clear.
However awkward or difficult it may be for Congress to
resolve difficult electoral disputes, Congress, being a
political body, expresses the people' s will far more accu-rately
than does an unelected Court. And the people' s will
Cite as: 531 U. S. ____ (2000) 13
BREYER, J., dissenting
is what elections are about.
Moreover, Congress was fully aware of the danger that
would arise should it ask judges, unarmed with appropri-ate
legal standards, to resolve a hotly contested Presiden-tial
election contest. Just after the 1876 Presidential
election, Florida, South Carolina, and Louisiana each sent
two slates of electors to Washington. Without these
States, Tilden, the Democrat, had 184 electoral votes, one
short of the number required to win the Presidency. With
those States, Hayes, his Republican opponent, would have
had 185. In order to choose between the two slates of
electors, Congress decided to appoint an electoral commis-sion
composed of five Senators, five Representatives, and
five Supreme Court Justices. Initially the Commission
was to be evenly divided between Republicans and Demo-crats,
with Justice David Davis, an Independent, to pos-sess
the decisive vote. However, when at the last minute
the Illinois Legislature elected Justice Davis to the United
States Senate, the final position on the Commission was
filled by Supreme Court Justice Joseph P. Bradley.
The Commission divided along partisan lines, and the
responsibility to cast the deciding vote fell to Justice
Bradley. He decided to accept the votes by the Republican
electors, and thereby awarded the Presidency to Hayes.
Justice Bradley immediately became the subject of
vociferous attacks. Bradley was accused of accepting
bribes, of being captured by railroad interests, and of an
eleventh-hour change in position after a night in which his
house "was surrounded by the carriages" of Republican
partisans and railroad officials. C. Woodward, Reunion
and Reaction 159–160 (1966). Many years later, Professor
Bickel concluded that Bradley was honest and impartial.
He thought that " ‘ the great question' for Bradley was, in
fact, whether Congress was entitled to go behind election
returns or had to accept them as certified by state authori-ties,"
an "issue of principle." The Least Dangerous Branch
14 BUSH v. GORE
BREYER, J., dissenting
185 (1962). Nonetheless, Bickel points out, the legal
question upon which Justice Bradley' s decision turned was
not very important in the contemporaneous political con-text.
He says that "in the circumstances the issue of
principle was trivial, it was overwhelmed by all that hung
in the balance, and it should not have been decisive." Ibid.
For present purposes, the relevance of this history lies
in the fact that the participation in the work of the elec-toral
commission by five Justices, including Justice Brad-ley,
did not lend that process legitimacy. Nor did it assure
the public that the process had worked fairly, guided by
the law. Rather, it simply embroiled Members of the
Court in partisan conflict, thereby undermining respect for
the judicial process. And the Congress that later enacted
the Electoral Count Act knew it.
This history may help to explain why I think it not only
legally wrong, but also most unfortunate, for the Court
simply to have terminated the Florida recount. Those who
caution judicial restraint in resolving political disputes
have described the quintessential case for that restraint as
a case marked, among other things, by the "strangeness of
the issue," its "intractability to principled resolution," its
"sheer momentousness, . . . which tends to unbalance
judicial judgment," and "the inner vulnerability, the self-doubt
of an institution which is electorally irresponsible
and has no earth to draw strength from." Bickel, supra, at
184. Those characteristics mark this case.
At the same time, as I have said, the Court is not acting
to vindicate a fundamental constitutional principle, such
as the need to protect a basic human liberty. No other
strong reason to act is present. Congressional statutes
tend to obviate the need. And, above all, in this highly
politicized matter, the appearance of a split decision runs
the risk of undermining the public' s confidence in the
Court itself. That confidence is a public treasure. It has
been built slowly over many years, some of which were
Cite as: 531 U. S. ____ (2000) 15
BREYER, J., dissenting
marked by a Civil War and the tragedy of segregation. It
is a vitally necessary ingredient of any successful effort to
protect basic liberty and, indeed, the rule of law itself. We
run no risk of returning to the days when a President
(responding to this Court' s efforts to protect the Cherokee
Indians) might have said, "John Marshall has made his
decision; now let him enforce it!" Loth, Chief Justice John
Marshall and The Growth of the American Republic 365
(1948). But we do risk a self-inflicted wound — a wound
that may harm not just the Court, but the Nation.
I fear that in order to bring this agonizingly long elec-tion
process to a definitive conclusion, we have not ade-quately
attended to that necessary "check upon our own
exercise of power," "our own sense of self-restraint."
United States v. Butler, 297 U. S. 1, 79 (1936) (Stone, J.,
dissenting). Justice Brandeis once said of the Court, "The
most important thing we do is not doing." Bickel, supra,
at 71. What it does today, the Court should have left
undone. I would repair the damage done as best we now
can, by permitting the Florida recount to continue under
uniform standards.
I respectfully dissent. |
